Packlink and Hermes again **Won - plus costs**

[BankFodder]

It's still very early days – but for the moment I would go through both of them.

Was the value correctly declared? Did you buy one of their so-called insurance covers?

What was the item in question?

[BankFodder]

Well it's absolutely correct that you will need to process a refund – and you should set about doing this as quickly as possible in order to reduce the number of problems you are having as a result of this.

Other than that, you will have to go through the claim process – with Packlink and with Hermes. I completely agree that they will decline liability and then you will have to consider further action.

Packlink are out of the jurisdiction and so therefore you will have to proceed against Hermes.

I'm sure that you have read around here enough to understand what your risk factors are.

Bringing a small claim for £1500 means that you will pay a claim fee of £80 and then if they push you to a hearing, you will have to pay a further fee of £115 or £170 if you want to add interest. The threshold between the two fees is £1500.

Once again, I hope you have read around enough to know that generally speaking Hermes would rather pay up then allow the matter to going to court. However you are claiming for a figure of £1500 and I'm pretty certain that this will prompt them to go all the way and to put you in court.

We will have to see the basis on which they decline liability – but I suppose that it will be the fact that you haven't paid any insurance. You better look around this website to see the arguments against that – I'm confident that it is unfair for them to require a further fee to insure themselves against their own negligence and I consider that it is unfair term. You have paid the contractual price for the carriage of your goods.

However, I'm not sure we have ever had a claim against Hermes for such an expensive item – and so this may be the first time that my particular theory has been tested in court and so this is a risk you will have to take.

If you win then you will get your money back, plus interest if it is claimed – plus your court fees of about £200. If you lose then you will lose the value of the camera and also the court fees.

This is something you will have to weigh up and you will have to decide.

I rate your chances of success in court is very high and of course we will support you all the way – but you have to understand that there is an element of risk. One factor will be whether you could have gone with a different courier in which insurance was already included or which operated a tariff fee system so that the fee became more in line with the value of the item being carried. The answer to this in fact is that it's not possible. All courier companies seem to operate in the same way that they have a standard delivery fee and then if you want additional insurance cover then you have to pay for it.

It's a simple matter for courier companies to restructure their system of fees so that they operate on a tariff base – but they don't – and it is their choice not to do so

[BankFodder]

By the way, if you are going to bring this case then you are going to need to prepare your arguments very carefully. As I have already suggested, it is likely to be defended and it is very likely to come up before a judge.

You should be looking carefully at the consumer rights act – especially the sections dealing with unfair terms and restrictions on exclusion of liability.

This means that you should be looking particularly at section 47, section 48 and section 49 – which basically impose a duty to carry out services with reasonable skill and care.
You should then be looking at part two which deal specifically with unfair terms and also schedule two which gives a nonexhaustive list of examples of unfair terms – and I think that example number two is probably a reasonable starting point.
Don't forget that they are merely examples and you will need to persuade the court that your situation is capable of being unfair on the basis that you have paid the delivery fee and that it is unfair to expect you to insure Hermes against their own negligence because this effectively protects them from their statutory duty to exercise reasonable skill and care when carrying out the service that they have contracted with you to do.

I think the arguments are very powerful and I think you have an excellent chance of success

[BankFodder]

Firstly, the image which you have put up in your post is so small as to be illegible – and I use a reasonably large screen.

Please would you repost it and then I suggest that you actually check it to see if it is legible to you. The easy thing to do course would be to post it up in PDF format because then it can be enlarged and read easily by anybody with any kind of screen.

 

 

Secondly, it seems to me that you are now in a difficult position. If you proceed to threaten Hermes and to bring an action against them while there is apparently a formal investigation underway by Packlink, then they could easily accuse you later on of being too precipitative and not trying some mediative/out-of-court process.

Of course I'm completely certain that Packlink will come back and refuse you anything – but I'm afraid that they have put you in a position where if you issue proceedings before the expiry of the 28 days then they will have gained a certain moral high ground.

So I suggest that you send a letter of claim to Hermes but instead of the normal 14 days, you give 29 days. It's very frustrating – but I think that this is in your best interests. Also, I suppose that there is an outside chance that they may decide to compensate you the full amount and in that case if you have already issued the claim papers then you will have lost your claim fee.

 

[BankFodder]

Incidentally, this will also give you an opportunity to send Hermes an SAR – which you should do today.

[BankFodder]

I had confused this Hermes story with another Hermes story. There are so many of them.

I think that you should also begin a formal complaint and claim to Hermes. They will knock you back – but at least you will establish a paper trail that you have tried to use their complaints process and exhausted all possibilities.

Do this separately from the SAR. Send the SAR now

[BankFodder]

I can scarcely believe that you are asking this question.

They have lost an item worth £1500 and you are debating whether or not to accept £25 and you want our advice on it.

I think I'll leave this difficult decision to you.

[BankFodder]

If they have not made their data disclosure in response to an SAR which was properly submitted and which they acknowledged, then yes they are in breach of their obligation.

I would suggest that you make an immediate complaint to the ICO – even though that will amount to nothing but at least it will add to your paper trail.

The only chance you have of getting your money back is by suing them. I think I've already explained your risk factors – the fees you might lose if you lose this case. Hopefully by now you have read around the forum and you have read about the steps required to take a small claim in the County Court. If you are prepared to go ahead then yes now is the time to send the letter of claim. In the intervening 14 days register with the County Court Moneyclaim service and start preparing your claim.

I suggest that you post the draft of your letter of claim here and also the particulars of claim so that we can comment before you actually send them off.

If you look around other Hermes threads, you will find that the preferred style – meaning my preferred style – is pretty short and to the point. Particularly in the particulars of claim, you should provide the minimum amount of information to explain what your cause of action is, how much you are claiming – and nothing else.

However, as they are apparently in breach of the SAR, then frankly you may as well take this opportunity to add that to the claim as well. I think you may as well add £50 for distress.

In your letter of claim you should refer to the breach of the data protection rules – as well as their own breach of contract and inform them that you will be claiming for both. As I have suggested, post your letter of claim here so we can have a look.

Don't be under any illusions that your letter of claim is going to suddenly persuade them to pay you. They will probably just ignore it completely and in respect of the breached SAR, they probably wouldn't know what to do anyway. So don't bluff. If you don't intend to go ahead with your thread on day 15 then don't send the letter of claim

 

[BankFodder]

By the way, you sold this camera on eBay. Are you an eBay trader? In other words are you operating as a business? This could make a difference as to where the case is transferred in the unlikely event that it actually goes to a face-to-face hearing rather than a video hearing

[BankFodder]

the letter of claim is ok. The particulars of claim need some changes and some refinement. I will have to deal with this in the next 2 or 3 days but there is no hurry.

[BankFodder]

No, I said that the letter of claim is ok and you can send it now if you are happy. The particulars can wait a little bit

[BankFodder]

I haven't looked at your attachment – but if there is any thing in there to give you a clue as to who this Carol Wright might be then I would suggest that you contact and let her know that this happened. Also, you can go to the Hermes Facebook page which has over 11,000 or 12,000 people complaining and you could post a message there as well and say that if there is a Carol right then maybe she should contact you.

If in their letter they seem merely to be referring to Packlink and not giving you any other reason for rejecting you then we may use a slightly modified particulars of claim to reflect that because when they eventually put in a defence, I'm sure that they will use a different reason and it will be helpful to demonstrate the court that they are ducking and diving and changing their position all the time.

Have you drafted a particulars of claim yet?

[BankFodder]

Have they still not complied with the SAR? And have you made a complaint to the ICO?

[BankFodder]

 

Just now, ng67860 said:

No, still no response to the SAR. 

 

I filled out the online form on the ICO website to complain. 

Do you have a complaint reference number

[BankFodder]

You will have to keep on to them because I can assure you that after three months, you will very likely find that your complaint simply disappears.

The big GDPR thing that became so important a couple years ago has by largely backfired because it has produced such a volume of complaints and yet so few extra resources that the ICO and everybody else this want and the result is that data processors can get away with murder in the confident knowledge that nothing much is going to happen.

It actually used to be much better before GDPR. You could make a complaint and get a reference number within two or three days and a result within two or three weeks

[BankFodder]

  The thread has gone rather a long time and I'm slightly out of touch. Please check the below and see if it is correct and addresses all the points

Quote

 

Tracking reference: X X X X. Defendant courier company undertook to deliver claimant's digital camera value £1500 to an address in the UK. Defendants lost the parcel through their negligent handling.
The claimant seeks compensation for defendants breach of contract or alternatively negligence: £1500 + courier fee £XX

 

Data Protection: claimants served a valid request for statutory disclosure of personal data upon defendants on 01/07 2020. Defendants have not complied and are in breach of  statutory duty. This is caused distress and additional difficult to the claimant who seeks compensation of £50. Acomplaint has been made to the Information Commissioner.

Claimant seeks [do the calculation] plus interest pursuant to s.69 County Courts act 1984

 

 

I started bringing in negligence of the cause of action in case a judge would say that the third parties act does not apply to contracts based on Spanish law – which appears to be the case with Packlink – although of course the contract itself was made here in the UK

[BankFodder]

Go onto the MoneyClaim website and see if you can apply for a judgement. If you can then go straight ahead and do it.

It may be that somehow they have overlooked it – or else it has gotten lost in the post. Go to the MoneyClaim website now and let us know

[BankFodder]

Yes, the 28 days runs from the date of deemed service.

 

Quote

5.7 The claim form will be deemed to be served on the fifth day after the claim was issued irrespective of whether that day is a business day or not. ‘Business day’ has the same meaning as in rule 6.2(b).

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07e

[BankFodder]

Yes, this defence is even more facile than the usual garbage.

So basically what they're saying is that yes they lost the parcel.

They don't owe you any contractual responsibility because your contract was with Packlink

They want you to prove the value of the parcel.

On the issue of negligence by them, they want you to prove it.

They say that because they are simply the courier, that they don't have much tracking information 

 

On the question of breach of statutory duty under the data protection rules, they want you to prove it

 

 

These people are completely stupid – but we knew that anyway.

• Anyway, on the point of contractual responsibility – they are subject to the Contracts (Rights of Third Parties) Act – and they know this and frankly they're wasting everyone's time with this defence.

 

• On the point of the value of the parcel – you will have to prove this by evidence.

 

• On the issue of their negligence, clearly you can't prove their negligence because you weren't present. On the other hand, there is a legal principle called Res ipsa loquitur. This is Latin for "the thing speaks for itself" which basically means that there can't be any other possible explanation for the loss of the parcel – unless they want to say that it is standard procedure in some way for them to lose their parcels. When you assert "res ipsa" to the court, you are effectively saying that it is clear that the circumstances of the loss can't be known to you – but the only possible explanation is the defendant's negligence – and the burden of proof then passes to them to prove that they weren't negligent – which they won't be able to do.

 

• On the issue of not having enough tracking data – this is incredible! The parcel was put into their hands and remained in their hands throughout its entire journey. Packlink simply brokered the deal and organised it. They never saw the parcel or had sight of the parcel. Hermes admit that it came into their possession and they have actually supplied you with tracking evidence of that fact and they are actually supplying you with further tracking evidence showing the last time that it was seen – in their depot. How on earth they can say that they don't have enough tracking data, I have no idea and they are simply wasting everybody's time – yours and more importantly, the courts. It's extraordinary.

 

• On the question of breach of statutory duty, as long as you can show that you sent and they received a valid SAR, then they have no defence.

 

• On the issue of them being completely stupid – Res ipsa Loquitur

[BankFodder]

You asked what you should do next.

The answer is – not very much. Wait for the directions questionnaire which will basically want the fee if you are prepared to go ahead to a hearing. It's highly likely that the hearing will be virtual rather than face-to-face. They will offer you mediation – and although frankly I don't like mediation, you have probably better say yes. However, follow the mediation link and see what we are saying about it. Hermes will see it simply as an opportunity to beat you down and to force you to compromise on the amount you are claiming.

If they really insist on defending and they refuse anything then they will push you completely to a hearing.

I shouldn't worry too much – you have an extremely good case and their defence is extremely poor by any standards.

However they are putting you to proof of the value of the item you sent – and you will have to produce this evidence.

I suggest that you start putting together some proper evidence of the value of it – including the actual value as well as the price for which you sold it.

It could be a good idea to prepare this in a very organised way and then send a copy to Hermes in advance and tell them that as they have raised the issue in their defence, you are now providing them with the evidence and they should indicate immediately whether they accept the valuation or they will be disputing it. Point out to them that it will be the in the interests of everybody's time and convenience – including the court – for the valuation to be agreed in advance so this can be flagged up to the judge or the mediator at the inevitable hearing.

If they refuse to do this then at least you will be able to show to a mediator that you have tried to reduce problems and tried to negotiate as much as possible in advance. If it goes to a judge then you will be able to show the judge the same thing and if Hermes, having disputed your valuation all the way, continue to dispute in front of a judge then that will simply go further to demonstrate their intransigence.

So prepare valuation in a very detailed and methodical way. Lots of evidence. Send a copy of it all to Hermes. Make sure that a copy of this valuation is included in your eventual court bundle

[BankFodder]

Of course, if Hermes were less stupid – and if they honestly don't realise that they have received an SAR, then they could at least mitigate their breach of statutory duty by approaching you directly and saying that they are very concerned because you apparently sent them an SAR and they haven't complied. They could then say to you that they are very anxious to remedy this and that if you would kindly send them the SAR again, they will implement it immediately and let you have the data disclosure without any further delay.

This would be a sensible and cooperative and reasonable thing to do – but of course Hermes is too stupid – as they have proved time and time again.

I don't know who runs their data protection department or their litigation department, but they are incompetent and they should be sacked

[BankFodder]

Any news?

[BankFodder]

We would really appreciate an update please

[BankFodder]

Yes please. Full details of any settlement and how it happened would be very useful for everyone who visits this forum. Thanks

[BankFodder]

Well done. Thanks for the update and yes of course this is an excellent result.

It shows how important to Hermes not to be formally exposed to the judgement as acting unfairly to their customers requiring them to insure against their own negligence. It also shows completely that Packlink is simply a shield which is intended to put people off and that Hermes knows completely that the customer has third party rights under the Contracts (Rights of Third Parties) Act 1999.

It's only a matter of time before this issue gets to court and Hermes cosy little relationship with their poodle Packlink will be smashed up once and for all.

Also, because Hermes follows this sub- forum – as soon as we do have a judgement which confirms that people enjoy third party rights, we will do everything we can to make it widely known so that people who have been knocked back by Hermes on this issue and have not understood what their rights are, will hopefully go back to Hermes and reclaim their money.

We will help them. The denial of compensation on the basis that people don't have any right against Hermes is equivalent of PPI mis-selling and is a scandal. It actually amounts to theft.

There we are, there's a challenge to Hermes. Want to try something in defamation? Here we are – we're not going anywhere.

 

On the issue of quantify ability of damages for distress caused by breach of data protection regulations, this matter was dealt with in a case a few years ago involving Google. There is no need to show actual loss or two tie stress into some kind of economic disadvantage before being awarded a sum in compensation by the court.

The court is perfectly capable of making its own judgement as to the kind of distress one might reasoning suffer when not being able to one's personal data and the correct answer to the mediator would have been – that we will let the court decide what is a reasonable amount of compensation for distress.

Is the SAR still outstanding? If it is then they are still in breach and if you would like to turn the knife, you could threaten them with an additional action for distress and then issue the papers if you want.

By the way, the mediator is completely wrong that it is a matter for the ICO. The ICO does not recommend awards. The ICO does not get involved in compensating private individuals who have suffered distress. That is absolutely a matter for the courts and the mediator was completely wrong.

Well done – and thank you very much indeed for giving us this very comprehensive description of your mediation experience.

It was an extremely important sum of money – and am extremely pleased that you got it pretty well all back.