Hermes laptop issue ***Settled at Mediation***

[honeybee13]

10 minutes ago, Nassa10 said:

Hi, yes I sent it to you guys on this thread

 

Hi. Please help us to help you. You only have one thread to follow but we all have many times that. Which post did you put the DQ on?

 

HB

[dx100uk]

On 30/11/2020 at 16:07, Nassa10 said:

They have now submitted their “defence”

Doc_20201130_160657.pdf 430.78 kB · 3 downloads

 

[BankFodder]

Okay, the next thing is that they will have indicated that they want to go to mediation. Tell us if they haven't please.

You should indicate that you are prepared to go to mediation. You should also indicate that if there is a hearing it should be heard in your local court because you are an individual and they are a business.

Assuming the mediation goes ahead, a date will be set. Please will you read around these Hermes threads to see how the mediation normally goes. There's lots of information here and once again I have to say that I don't think you've been reading around very carefully because you have been asking us very basic questions at every step of the way. That doesn't matter too much – we are here to answer your questions but on the other hand, I had the impression since your first post that by and large you have been doing this blind and feeling your way along.
It's not a very good idea.

I notice that in the defence they haven't referred to the fact that you recorded the call although you have referred to this in your claim.

That doesn't make the case slamdunk that you have recorded it, but it will be helpful.

When you get to mediation, you will have to emphasise the following arguments:

Firstly, the item was not even lost, it was apparently damaged and then destroyed. They are asking you to prove the value. They should prove that it was damaged and destroyed – and if this has happened then there should be paperwork for it and there should be photographs. Where are they?
You should tell them that when you go to court, you will be insisting that they provide this evidence to the judge. You can also tell the mediator that you don't believe that this evidence exists and frankly without proof, you don't even believe their story that the item was damaged and destroyed.
Tell the mediator that you consider that this is an excuse for something else although it's not your place to say what – although you may make suggestions in court if that's what Hermes want.

Tell the mediator also that the prohibited items list has no bearing on items which are lost and in terms of presenting a risk of damage, if Hermes will not provide any evidence of the damage then you don't accept this and you will be asking the judge to insist that they provide evidence at the court hearing.
Tell the mediator also even if it was damaged, Hermes had no right to destroy the item. It is your property and they have destroyed your property without reference to you. If it was damaged and destroyed then clearly the fact that they are telling you this makes it clear that they knew all the time who the item belonged to and yet they didn't contact you in advance.
Is there something in their contract which entitles them to do this? No there is nothing in their contract which entitles them to do this. And you notice that in their defence they have not referred to any contractual right to destroy the goods belonging to a customer.

Finally, you should tell the mediator that the whole business of insurance is an unfair trick to force the customer to pay for the negligence or criminality of Hermes.

Tell the mediator to let Hermes know that once you get to court, you will be inviting the judge to consider the fairness of requiring an insurance to protect Hermes against their own negligence.
You will also be inviting the judge to consider the fairness of claiming that goods are damaged without providing any evidence.
You will be inviting the judge to consider the fairness of destroying someone's goods without any evidence and without contacting the owner of those goods even though they have the contact details.
You will also be inviting the judge to consider the fairness of having a prohibited items list which apparently applies to items which are simply lost.

I suggest that you go through the things I have written above very carefully and you write them all out as notes – bullet pointed:

.1
.2
.3
.4 et cetera

Make sure that you are completely happy with these arguments and that you know them in advance and that the notes that you have made are simply to help your memory and that you are not reading them for the first time.

Read the other threats involving mediation. You will soon discover that the mediator seems to consider that it is part of their job to get you to reduce the amount of your claim – even if it is simply to reduce your claim by the amount of the claim fee.

You should refuse. This is a very small sum and Hermes would be completely aware that if this gets to court and a judge finds against them then the bottom will have fallen out of their insurance and destroyed parcel scam and it will cost them a huge amount of money having to deal with everyone else's claims.

This is what gives you the power in this negotiation – that Hermes have got a huge amount to lose by not paying you in full including came fee and everything.

You will find that the mediator may become a bit angry and the mediator may even tell you that you have a responsibility to reduce your claim.

Stand your ground. The mediator is acting out order and you tell the mediator that you have the law on your side and at the end of the day it will be the judge who will decide.

Finally, you can refer to the recording and you can tell the mediator that you even have a recorded phone call where Hermes promise to pay the money and then went back on a promise.

I can imagine that Hermes will probably say that it is illegal to record and it would be illegal to use the recording in court.

The answer to that is that Hermes is wrong. It's not illegal to record – and as for using the recording in court, that will be up to the judge to decide and not for Hermes and not for the mediator.

You need to be extremely assertive with the mediator and extremely assertive to Hermes. This is a lot of money for you – for Hermes it is less than peanuts.

I'd like to feel that you have read this thoroughly. That you have made notes. That you have read around the threads on the forum – and then by all means come back and ask questions.

You can win this very easily. There is no reason few to give up a single penny. Just be obstinate and stubborn. You have nothing to lose. Hermes have a massive amount to lose and I'm talking about the many tens of thousands of pounds per month if they start having to compensate their customers correctly.

[Nassa10]

Thanks for the advice, I shall note them all done with bullet points and send the questionnaire back in the post tomorrow 

[BankFodder]

Another point you can make – is that as Hermes are putting you to proof as to the value of the item which they have damaged and destroyed, then you will be putting them to proof that this is actually happened.
Furthermore, I think will be worth telling the mediator that in court, seeing how Hermes have damaged the item and then destroyed it, they must be familiar with what it is and that means that they will know the make, model and also the colour.

Tell the mediator that they should reveal that now during the mediation. What is the make of the laptop? What was the colour of the laptop?

I bet you that Hermes doesn't know. That will be fun to tell the judge – and invite the judge to make their own mind up.

Also, if Hermes are putting you to proof as to the value – they've obviously seen it before they destroyed it, so surely they must know the value.

All of these things can be added to your notes to have at hand when you are on the telephone to the mediator.

Be very calm about the way that you make these points to the mediator. Go through them slowly. The mediator will be making notes so you just go at a slow pace very calm giving the mediator an opportunity to make sure that they have got everything down.

At the end of each point, you can pause and then you can say to the mediator "have you got that?".

This is the way that you will be calm and also you will find that you are controlling the conversation and the pace of the conversation to suit you.

The most important message to convey to Hermes through the mediator, is that you are looking forward to taking Hermes to court and that the money is so little to you – you are quite happy to risk losing it.

That's the kind of talk which will irritate the mediator and scare the pants off Hermes.

[Nassa10]

Mediation has been set for this coming Thursday 

[BankFodder]

Looking back over the thread I see
 

Summary

You sent a laptop computer to a repairer using Hermes. This was in about August 2020
the laptop was worth £200 and you paid the Hermes insurance to cover it
the laptop never arrived and eventually Hermes told you that it was lost.
You put in a claim and Hermes refused to accept your claim and they also refused to honour the insurance contract
Hermes suddenly changed their story and said that in fact the laptop had been damaged and therefore had been destroyed.
They told you that because it was a laptop, it was on their prohibited items list and therefore was not covered by the insurance policy which they had sold you
they have provided no evidence that the laptop was damaged – although it's not clear if you ask them for any evidence.
You eventually issued proceedings
 

Hermes defence

they have defended on the basis that the laptop was damaged and that it was a prohibited item
they have also suggested that the money you are claiming is beyond the level of the insurance cover of £200.
In saying that the sum claimed is beyond the insurance cover, they have lumped together the court costs along with the value of the laptop.

 

I understand that you have a recording of a conversation where Hermes are first of all telling you on the telephone that the item is lost and then in the same conversation they go on to say that it has been damaged. Please can you confirm this. (It would be helpful if you could send a copy of this recorded conversation to us confidentially at our admin email address please.)

You are now set for mediation on Thursday. Have you read around the various threads here looking at other people's experience of the mediation process?

I have to say that there is a definite suspicion with me that the item was lost all the time but because we have made such an issue that use of their prohibited items list and that declining  responsibility for a lost item is unfair and unenforceable – because it is an abuse of the concept behind prohibited items, that they then decided to say that it was damaged because that might be a sustainable argument for relying on their prohibited items list.
Of course this would be a very serious piece of deception if it were true. Who knows if it's true? It's just a sense that this could be a possible scenario.

 

Your preparation

First of all, do make sure that you have read around the threads relating to the mediation process in relation to Hermes claims. There are several excellent summaries of how it all went and they tend to be similar enough to imagine that your mediation experience will follow broadly the same route.
This means that in principle Hermes are prepared to pay you out something, but they will want to salvage their pride by getting you to compromise. Furthermore, the mediator will probably see it as a point of honour that they also have managed to produce a solution in which you have compromised in some way. This may possibly mean that you are being asked to give up your court fees and accept simply the cost of the laptop.

We would recommend very strongly that you stand your ground. You have an extremely strong case and if it went to court for a hearing by a judge, it is highly likely that the judge will find in your favour and you would have an excellent judgement which would probably be critical of Hermes and their systems and which we would then be pleased to publicise around the Internet.

This means that Hermes has a lot to lose reputationall and also if there was criticism of the use of the prohibited items list, this would be devastating for Hermes and I would envisage that we would be encourage a lot of people who had been denied a remedy so far to go back and claim retrospectively from Hermes.

 

Your main points to the mediator will be:

 

Hermes changes their story and the prohibited items list
that first of all they spent several weeks telling you that the item was lost and it was only at the very end when they decided to rely on their prohibited items list that they suddenly changed their story and said that the item was damaged.
You need to tell the mediator that you don't believe it and that you think that this is simply an excuse to deny compensation for the item which was really lost all the time.
Tell the mediator that you will be putting this point to the judge and you will let the judge form their own conclusions but that you have no doubt that the judge will consider that in all probability Hermes are not being completely truthful.
Tell the mediator that you understand very well that the use of a prohibited items list to deny liability for items which are lost is completely unfair and unenforceable and that is why Hermes switch their story to say that the item was damaged. Being a prohibited item could not affect at all the risk of the item being lost. There is no reason at all why it is more likely that a prohibited item is lost then any other item that Hermes carried.

 

It would be easy for Hermes to prevent contracts for the carriage of prohibited items

It would be a very simple matter for Hermes to build into their website a mechanism which detected that an item was prohibited and then simply refused to continue with the contract for delivery or the contract for insurance.
Hermes have chosen not to do this for their own reasons even though technically it would be a very simple matter.
The obvious conclusion is that Hermes are prepared to take their customers money and then declined responsibility on any grounds if something later on goes wrong.

 

Proof of value and proof of damage
Tell the mediator also that Hermes are apparently asking for proof of the value of the laptop. Tell the mediator that you want Hermes to prove that it was damaged and that if they cannot do this you will be asking them to provide their evidence in court.
Tell the mediator that the judge will agree that they should provide evidence of the damage and that as you are quite sure that there is no evidence of the damage, that the judge will agree with you that this is simply an excuse to avoid liability.
 

Hermes knew it was a laptop  but they still agreed to insure it

In any event, the laptop was properly declared as a laptop and not only that Hermes were happy to sell you insurance for it.
Tell the mediator that even if the item was on the prohibited items list, the fact that they knew that it was a laptop and agreed to insure it means that even if the prohibited items list might normally be binding, in this case the second of/collateral contract of insurance demonstrated that being a prohibited item was no longer part of the contract.

The main contract – the delivery contract has to be read in the light of the additional/collateral contract to insure the laptop. Hermes knew what they were doing and that they were accepting money to ensure laptop. They can't now try and deny liability. Happy to take your money – but then not happy to deliver the insurance that you paid for

 

Prominence of the prohibited items list v prominence of the insurance proposal
Tell the mediator also, that when you enter into a contract with Hermes through their website, the prohibited items list is not prominent and also the list is so extensive – more than 70 items – that it is impossible really to go through it all and to understand.
On the other hand, the insurance proposal is much more prominent – and this is clearly because Hermes want to make money out of the insurance and the prohibited items list is really a full-back device to allow them to escape liability if they can.

Tell the mediator that it is clear that Hermes are very happy to take people's insurance money and then later on refuse to honour the insurance for any spurious ground that they can come up with.

 

The recording

Now we have to deal with the issue of the recording. It would be very helpful if you would let us have a private confidential copy of this recording so we can understand exactly what has been said. However, you should understand that you are completely entitled to record conversations. There is nothing against the law. However, there would be difficulty if you try to publish it or to make it available for non-legitimate purposes.
In this case, our view is that if you needed it in a court case then you would be entitled to use it – although you would have to ask the permission of the judge first.

I think you should refer to the recording and tell the mediator that you have a recording of Hermes telling you that the item was lost and then changing their mind and tell you that it was damaged but it was prohibited.
Hermes will try to say that it is unlawful for you to have taken the recording. Hermes will also try to say that you would not be allowed to use the recording in court.
I can imagine that the mediator themselves will not understand what the rules are for privately recorded conversations.
The position is this. You are entitled to use the recording for your own private purposes – and this includes for a court proceeding.

To use the recording in court you would have first to ask the judge for permission. However, there is nothing against you making a transcript of the recording – in other words making a written record of the sound recording and producing that in court.

I think you should make it clear to Hermes and also the mediator – if the mediator seems to be telling you that the recording is unlawful – that you disagree and that at the end of day it is a matter for the judge.
 

Use of the recording in court of Hermes deny the conversation

Tell the mediator that you will only need to use the recording if Hermes denies what has been said on the recording. In other words if they tell a different story – which is clearly not true. In that case, I think you will have little difficulty in persuading the judge to listen to the recording.
Your argument would be that Hermes are about to give a different version of events and which is untrue and which is in fact misleading the court. You would say to the judge that in this case, the judge should grant you permission to produce the recording court to show that Hermes is misleading the court.
Tell the mediator that it is on this basis that you will reuse the recording.
Tell the mediator that if Hermes will agree that the recording is true and will confirm the conversation that was held and that they did say that the item was lost and that eventually they change their mind and said it was damaged, then you will not need to produce a recording in court because there will be no dispute over the conversation.

You will need to be very assertive about all of this because you will come up against resistance both from Hermes – and probably the mediator.

I suggest that you start making a transcript of the recording – maybe you would like to publish that here. There is no problem about this. And once again, it would be helpful to hear the recording ourselves if you would forward it to us in confidence.

Also, you can tell the mediator that if the recording is accepted into evidence and the judge listens to it, it then enters the public domain and you will be entitled to distribute it over social media.

 

Final proposals
At the end of the day, Hermes are likely to offer you the entire value of the laptop and they will try to withhold your court fees.

There is absolutely no reason for you to accept this compromise – and you should tell the mediator that you refuse to compromise and that you want everything. Tell the mediator that the benefit to Hermes is that it will not go any further and they will avoid a judgement against them and they will avoid exposure in the court and in the public domain.

For Hermes, avoiding a judgment against them on these issue would be a big win.  That is why you should stand your ground.

Please let us know if you have any questions


 

[BankFodder]

Additionally, this case has some similarity to your own situation

 

 

 

 

but do make sure that you read up about the mediation stories elsewhere in the Hermes threads

 

[BankFodder]

A couple of other points occur to me.

Firstly, you were sending the laptop for repair and you say that its value was £200.

What was wrong with the laptop? Was £200 the value of the laptop in its present unrepaired state? Or is it the value of the laptop in its repaired state?
If your position is that the laptop was worth £200 once it was repaired, then Hermes might have an argument for reducing your claim to the value of a faulty laptop.

The second thing that we haven't talked about – is Hermes rights to dispose of your property simply because it is damaged.

You didn't raise this in your original claim – and that's because you didn't come to us before you made the claim.
The rights of Hermes to destroy property which doesn't belong to them have no legal basis so far as I can see. I'm not aware that there is any contractual clause which allows them to do so and I think you need to make an issue of this.

If Hermes refused to settle with you and if they insist on it going to a hearing then I think you need to make it clear to the mediator that you will add this issue to your claim and that you will raise the allegation that Hermes have "converted" your property.

Conversion is where somebody unlawfully treats your property as their own and acts upon it as if it was their own. In other words "Conversion" is the unlawful converting of the owner of the property from you to them.
The legislation which deals with this is the Torts (Wrongful Interference with Goods) Act 1977.

So what we have here is that a suspicion that Hermes really have lost the laptop by using the notion that it was damaged and therefore destroyed to bring it within their prohibited items list. However, if it really was damaged and destroyed,
first of all they have given no evidence

secondly, they had no authority destroy it
thirdly, destroying your property without your agreement is a Conversion – which itself is an actionable tort at law.

 

You haven't raised these issues in your claim – but you may as well mention them briefly to the mediator and tell mediator so that Hermes know that they will be raised if they insist on the matter going to court.
You can tell the mediator that you are well aware that Hermes is increasingly claiming to have damaged items without providing any evidence and then going on to destroy them without any authority. You can tell the mediator that this is definitely something which needs to be raised as an issue before the court
 

[Nassa10]

Mediation done, they paid me £240.80

[AndyOrch]

  Well done...topic title updated.

[BankFodder]

Yes, well done. And thank you for updating us.

It sounds as if you stood your ground – which is what it takes.

If you have the time, it would be very helpful if you could describe the process of mediation. It will benefit other people who visit this thread.

Thanks

[Nassa10]

I would love too but I was told as part of the agreement I cannot discuss anything involving the mediation process

[BankFodder]

Wow. That tends to suggest that they've seen the summaries and criticisms here on this forum and they decided to try and gag it.

Was this a requirement by Hermes or by the mediator?

[BankFodder]

There has been no reply to the above question and so I am assuming that the claimant is prevented even from revealing that information.

We have to respect their adherence to the agreement.

However, nothing prevents me from speculating that the mediator would not have been allowed to impose a gagging agreement on either side and so I speculate that it is Hermes which wants to hide behind a gagging agreement and to prevent disclosure of how the negotiation went and how they were eventually obliged to pay the claim plus costs.

Of course if Hermes really want to play this game of trying to gag people – then fair enough – but what it means is that people might decide to resist the gag from Hermes and instead insist on going to the County Court for hearing.
Hermes will not be entitled to gag people when there is a County Court judgement against them.
When there is eventually a County Court judgement against Hermes which discredits their prohibited items list for last items and discredits their so-called insurance scheme and also discredits their attempts to hide behind a contract with Packlink – when these things eventually happen then Hermes and the rest of the courier industry will be exposed.

Then there will be a tsunami of claims and also I hope there will be a tsunami of back claims from people who have been unfairly/unlawfully deprived of their proper compensation because of the unfair treatment by Hermes and the other players in the industry.

[AndyOrch]

1 hour ago, Nassa10 said:

I would love too but I was told as part of the agreement I cannot discuss anything involving the mediation process

 

Never heard of that....a mediator cant impose that ...nor the defendant unless it was mutually agreed between both parties.

[BankFodder]

Yes, I expect that the mutual agreement was based on "we'll give you this amount of money but part of the deal is that you agree not to talk about what happened during this mediation".

I suppose that either party can insert any demands they want in the mediation process and it's up to the other party to accept it or to walk away and then to go on to court

[Nassa10]

I was paid 

[BankFodder]

Great news.

Well done and also thank you very much indeed for letting us know.