Court Claim Against Hermes - item sent via Packlink was lost/tampered with **WON at mediation full amount **

[jj58]

Hi,

I was just wondering if I could get a bit of support with my issue.

 

I sold a phone (Pixel 2) on eBay for £140 + £5 postage.

I bought the label through Packlink, and chose Hermes with FULL insurance coverage.

 

when my buyer received the package, he claimed that it had been tampered with, and the phone was no longer in the packaging.

I am inclined to believe him, as he has sent me evidence, along with a CCTV video of the delivery driver posting it through his letterbox - which it wouldn't have fit through as I sold the phone boxed with accessories.

 

I forwarded this to Packlink, but despite paying for full insurance, they denied the claim because I did not post the phone in a box - not even letting Hermes investigate the theft. They said this is a requirement in order to claim Insurance. I did not see this while buying the label, only because I believed their packaging instructions were just advice, and I knew that Hermes themselves did not have this requirement. 

 

I also think it could be argued that I technically did send the phone in a box - the phone box, and I did decide it had adequate packaging on it's own which is why I chose to put it in a jiffy bag. I don't even see how this affects the claim at all - the phone was stolen - not damaged, so it's packaging does not matter. 

 

I haven't been able to get anywhere with Packlink, nor Hermes because they say I should just contact Packlink.

I have read some threads on here, and I think my best bet is to start a claim against Hermes.

 

I've already written to Hermes threatening I'd start a money claim against them.

 

The potential problem I see here is that Hermes haven't even been able to investigate the theft, whereas cases I have read on this website have simply had their package lost, which is easy to prove since it goes missing on the tracking. 

 

If anyone could just give any general advice that would be much appreciated.

Thanks

 

 

[BankFodder]

They are denying liability on the basis that the phone wasn't in a box.  

Please could you post up a copy of that message you have received from them.

It's very nice touch that you have a video of the driver putting the package through the letterbox. That will be helpful. I don't suppose you haven't take a photograph of the package when you sent it?

Hermes will always tell you to contact Packlink. They try to shift responsibility onto other people's shoulders all the time – and of course Packlink are in Spain so they are out of the jurisdiction.
Your claim eventually will be against Hermes.

Have you actually gone through the formal complaint process with Hermes?

When did all of this happened – when did you send the package and what date was it put through the letterbox – and what date did you begin the complaints process?

 

Also, please can you post up a copy of the legal threat that you made

[jj58]

Hi,

Thanks for getting back to me so quickly.

I know, it is quite absurd. They're just denying claims for any reason they can it seems, and I know I won't be using them again.

This was their email:

Quote

Dear Customer,

We regret to inform you that your claim for the damaged parcel GB****** has been rejected due to not compliant packaging.
 

NON-COMPLIANT PACKAGING

The packaging is one of the the 5 Essential Requirements To Open A Claim and the evidence you have provided shows that the packaging was not suitable to protect your parcel, and we cannot accept your claim at this time.

The packaging must comply with our packaging guidelines. If your packaging does not comply with the guidelines included in this article below your claim might be rejected.

https://support-ebay.packlink.com/hc/en-gb/articles/208326389

This section specifically defines the guidelines for packaging, which are decisive at the moment he claim is presented. They are not just optional suggestions. They are fundamental requirements that are taken into consideration if there should happen to be a problem with your shipment.

The preparation of the packaging is essential in order to guarantee the correct delivery of the goods and the acceptance by the transportation company of goods not packaged according to our rules does not imply the acceptance of liability in case of damage and breakage.

If you decide to send the goods in plastic-coated envelopes or bubble-wrap padded envelopes, no claim can by accepted in case of problems in the transportation.

The goods must be suitably packed within a box. The external and internal packaging must provide adequate protection to the goods during the distribution process. The correct packaging must be able to protect the product from bumps and vibrations and function as a shock absorber.

 

Unfortunately no, I don't have any photos of the package before I sent it.

 

Apologies for not giving any timescales.

I sold it on the 8th of September. It got delivered on the 10th.

I started the claim that day, and after sending evidence my claim got denied on the 14th.

I did some research and tried to follow it up with Hermes on the 22nd, but their email is no longer in use.

I sent a letter on the 26th, with confirmation of delivery - and checking the tracking, Hermes received the letter on the 30th.

 

So I have threatened the formal complaint process, but haven't started it yet.

In the letter, I outlined what had happened, much like how I did in my previous post, then added:

Quote

Under the Contracts (Rights of Third Parties) Act 1999 we are claiming compensation for the full sale value of the item, which was £144.98 including cost of postage.

As beneficiaries of the contract with Packlink, the Contracts (Rights of Third Parties) Act 1999 gives us the right to claim directly from Hermes. It is not necessary for us to pursue this claim with Packlink.

If you do not approve my claim within 14 days of receipt of this letter we will open a case against you through the Government’s Money Claim service at which point you will be liable for all costs incurred as a result of a successful claim.

I would be happy to provide more information should you need it

I was just hoping to prepare my claim for when the 2 weeks I gave them pass. I did also want to know whether the fact it was tampered with and the CCTV being the only real evidence will affect my claim.

 

Thanks

 

 

 

[BankFodder]

Even on their own conditions, they say that the packaging must be correct in order to avoid damage. This would be absolutely right and it is not possible for incorrect packaging to have a bearing on the loss of the item. It's nice to see that they have pretty well confirmed this.

I have to say I have no idea why you sent it using Hermes – big fail! You were asking for trouble.

Your letter of claim is not too bad – except that you aren't suing under the Contracts (Rights of Third Parties Act). You would be suing under the consumer rights act and it simply that the Rights of Third Parties Act gives you locus to sue under the 2015 act.

Anyway, it's just a detail. However I don't understand why you are banging off letters of claim making threats when you don't know to the steps that you are going to take once your deadline has expired.

You should have had all your preparation and understood the steps before you start sending these letters. I'm telling you this for your benefit but also for the benefit of others who read this thread.

Anyway, you've sent a letter of claim which is good enough to pass muster. You have set a deadline for action which expires about 10 October. It's very certain that Hermes won't respond and they will force you to issue the claim.

So you have about seven days left. Please read around this forum to understand the steps you need to take to bring a small claim in the County Court. This will only take you a few hours or so. Register with the MoneyClaim online website and start preparing your claim. You can save your work you go

I suggest that you post your proposed particulars of claim here before you fire them off so we can make suggestions. You don't need any formal words and you don't need any particular language. Just date the very basic reason that you are bringing your claim against them.

Have everything ready so that on day 15 you issue the papers.

For this kind of money, Hermes will eventually put their hands up – but they will probably push you to pay the allocation fee and they will opt for mediation – and you probably had better do so as well. They will try to use mediation to knock you down a few quid. But frankly your claim is watertight and you should stand your ground completely and make it clear to the mediator that Hermes should be aware that you are very happy to go to court and get a judgement which will break their general reliance on prohibited items and inappropriate packaging of lost items and that the judgement will then be published generally over the Internet.

Hermes won't want to take this risk. The majority of people that they deprive of their legitimate compensation simply go away thinking that they have no rights in the matter. A loss for Hermes on these points could cost them a huge amount of money and so they would rather pay you out.

What is ridiculous is that they will incur more costs trying to defeat you on this tiny sum than it would cost them simply to pay you out – but that's Hermes. Stupid and boorish

[jj58]

Hi @BankFodder

Sorry for only getting back to you now. I've been quite busy.

 

Yes, you are correct. I should've had everything prepared before I sent the letter, but I wanted to get things going and thought I could do the claim during the 14 days I gave them. Thanks for the advice though. This is my first time making a money claim and will be helpful for the future.

 

Anyway, I've made the Money Claim account and filled in the basic details and I have to say, a lot of it has been easier than expected.

I just wanted to know whether or how I bring Packlink into this.

Obviously Packlink have played a big role and are the reason I'm having to start a claim, although it is against Hermes.

For the "Brief explanation" I've written:

Quote

I sold a phone on eBay. I shipped it using Hermes' service with full insurance, bought through Packlink. When the buyer received the package, it had been tampered with and the phone was missing. I have tried to get in contact with Hermes but they refuse to investigate the matter, claiming I have to go through Packlink. However under the Contracts (Rights of Third Parties) Act 1999, it is not necessary for me to do this. 

I've brought in the Contracts (Rights of Third Parties) Act 1999 only as a way to link Hermes to Packlink. Do you think there's anything else I need to add to this? I was also debating whether I should include Packlink in the timeline, and the details of me contacting them and them denying the claim but I feel mentioning the fact Packlink denied my insurance claim damages my case.

 

Thanks for all your help, I really appreciate the amount of time you dedicate to helping people

[BankFodder]

Have a look at this and see if you need anything more. Check that it is correct and that you are prepared to sign as a statement of truth and that there are no other points you want to make.

 

Quote

The claimant used the defendants courier service to deliver a parcel containing a mobile phone value £XXX to an address in XXX. The claimant took out insurance against damage or loss caused by the defendant's own breach of contract or negligence. When the parcel arrived at the destination it no longer contained the mobile phone. This was caused by the defendants own breach of contract or negligence. The defendants have refused to compensate the claimant. The claimant brings this action under the Contracts (Rights of Third Parties) Act 1999. Claimant seeks the value of the phone £XXX plus delivery and insurance costs £XXX plus interest pursuant to section 69 of the County Courts act 1984

 

[jj58]

@BankFodderThanks, that is brilliantly worded.

I have used a lot of your example and I haven't mentioned Packlink - but it makes sense since I shouldn't need to go through them in the first place.

I've checked over all the details on the website and everything looks good.

I'll let you know once I've issued the claim.

Thanks again and have a nice day

 

[jj58]

Hi @BankFodder

Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that

So I issued the claim on day 15 and they requested more time to respond.

They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.

 

I opted for mediation, and it played out very similarly to other people's experiences.

 

In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 

 

In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.

 

In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.

 

To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.

 

So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.

 

Many thanks, stay safe and have a good Christmas!

 

 

[BankFodder]

Thanks for this update. Very interesting – and excellent account of your experience with the mediation process and also with the mediator.

We are finding this quite often that mediator seem to get a bit shirty if they can't chalk up some kind of success for them – which means a reduction in the amount of money paid.

They seem to be more interested in personal kudos – then getting the matter sorted and out of the court list.



For anybody who finds themselves in mediation, – if you have the right on your side then – stand your ground.

[stan168]

Hello, 

 

Thank you to all who have contributed, I will be following the same route to recover my losses.

 

 

[BankFodder]

Please will you post up your story on a new thread.

It avoids confusion and also having more threads about Hermes means that it comes higher up in the Google ranking and more people find us and more people get the help they need.

Please will you post up this story in a new thread. It's very important

[jj58]

2 hours ago, stan168 said:

Hello, 

 

Thank you to all who have contributed, I will be following the same route to recover my losses.

 

 

Hi @stan168,

I'm sorry to hear of your issues with Hermes.

As BankFodder has said, you'll be better off making your own thread where you can ask specifics about your case. I don't know much on the legal side of things but people like BankFodder on this site are amazing at helping people out.

I personally used the new online Government money claim service in beta found here https://www.gov.uk/make-money-claim which made it very easy to understand especially for a newbie like me.

 

You asked me about my claim - I sold a smart phone in its box and put it in a jiffy bag with a case I bundled with it. However when the buyer got it only the case was in the bag.

In your case, Hermes actually paid out but in mine they didn't even bother getting to that stage since it was packaged in a Jiffy bag!

I addressed the claim to Hermes only, but I have seen on other threads that people have listed Packlink on the claim too, but really it isn't necessary because of the Contracts (Rights of Third Parties) Act 1999.

 

I have more details in the rest of this thread about how my whole case played out, and there's plenty of other threads and resources on this site.

For any more specific questions I'm sure BankFodder will help you out on your own thread, the work he and others do on this forum is amazing.

 

I wish you good luck with your claim!

[BankFodder]