Hermes Lost Returns - Sportsshoes.com @sportsshoes_com

[BankFodder]

5 minutes ago, rjstanley said:

I also asked Hermes for a copy of their "extensive investigation" and a crime reference number in the case of what appears to be theft of the parcels from the courier shortly after collection. 

 

 

Please can you monitor this thread for a fuller reply later, but in the meantime please can you tell us who the two retailers were.

From what you say, I gather that one retailer has acted responsibly and has refunded you and the other one has not. Maybe you can tell us which one hasn't refunded you and why not

[BankFodder]

. Sorry, I see that I have misunderstood. You were returning items.

Can you tell us why you returned them and who it was that decided the method by which they should be returned.

[BankFodder]

Okay thanks. If you had seen the post which I have now deleted, you will have seen the advice that I gave when I thought that they were still delivering to you.

Now that I see that you have been returning the shoes and that you made your own arrangements for the return, then yes it is between you and Hermes.

Please start reading around this sub-forum because there are lots of threads which deal with Hermes. I suggest that you try to get through a dozen or so and you will quickly understand the principles involved. The reason for challenging Hermes, and the way that it normally goes from threatening them, to issuing the claim, to mediation – and then almost inevitably, an attempt by Hermes – outrageously assisted by the mediator – to get you to accept less than the sum to which you are entitled.

You should not accept anything from Hermes – unless you feel that you don't want to go ahead and challenge them. It is extremely helpful that they have found the discarded wrappers because that indicates very strongly that the items have been stolen.

Of course Hermes will try to rely on the fact that you didn't purchase insurance and if you read the sub- forums here you will see what we have to say about the fairness – unfairness of requiring insurance to protect Hermes against their own negligence or the criminality of their own employees.

Read around and you will start to understand the action that you will have to take.

Then come back here and let us know that you are prepared to go ahead and of course we will help you all the way.

[BankFodder]

Your argument in respect of insurance is broadly right – but additionally, it is grossly unfair to ask the customer to take out insurance against the courier's own negligence and their own breach of contract.

I as I understand it you returned two pairs of shoes using Hermes.

Where these two pairs of shoes separately wrapped with separate consignment numbers? Or were they one parcel?

[BankFodder]

Okay so there were two contracts. And both of them are gone missing – is this correct?

If this is the case and you would like to have a little bit of fun, gain some confidence and reduce your risk and also make it even less economical for Hermes to resist you, I suggest that you attack them one contract at the time.

 

[BankFodder]

You don't absolutely need the discarded packaging – but it helps.

Are you able to get hold of the discarded packaging? Have you got it in writing that they found the discarded packaging? Can you get photographs of the discarded packaging?

[BankFodder]

I don't suppose we know which is which do we?

[BankFodder]

That's what I mean. So you know which missing order relates to the discovered packaging and you know which missing order has simply disappeared without even the packaging.

[BankFodder]

Okay, well I would suggest that you divide the problem into two.

I would suggest that you pursue compensation for the parcel with the discarded packaging. You would threaten Hermes and of course they will push you to issue the papers. You would issue the papers and then they would defend on their usual rubbish and then it would go to mediation. The mediator as usual try to put pressure on you to compromise and that's when you tell the mediator that you won't be compromising and that furthermore when this one is finished Hermes can be looking to another action to be started for a second parcel – and your compromise offer to Hermes this if they settle both of them straight away including your costs that you won't issue proceedings on the second one and so they will save money by avoiding the necessity to bring the core claim on that one.

You will also tell the mediator that if Hermes won't accept this generous offer, then once you have one your claim in the first case, you will then be bringing an action for the second parcel and in fact you will be using the discarded packaging in the first parcel as evidence that in fact they were probably both stolen by Hermes employees or contractors (it doesn't matter).

The benefit of this is that you might succeed in getting both for the price of one. Also, if Hermes find that they're trying to resist a claim for over £460 plus costs, they might be minded to try their luck in court but if they think that they are only resisting a claim for £230 plus costs then it is certainly less economical for them to take the trouble of risking a judgement against them.

Of course you would also point out to the mediator that Hermes would also benefit by not having the fairness or unfairness of their so-called compensation scheme tested in court and that the judge will be invited to consider the fairness of a term which amongst other things requires the customer to protect the supplier against the supplier's own negligence and mishandling of the contract. You can point out to the mediator that when the judge rules in your favour on that point – as will surely happen – that exactly the same reasoning will be applied to your second case and furthermore, the judgement will be published all over the Internet and that will be the end of Hermes little game – as well as the rest of the courier industry about requiring their customers to ensure against the supplier's own negligence.

That's my suggestion.

If you think that is a bit too much trouble – to have to bring the second case after the first – then you can do both at the same time. It's up to you

[BankFodder]

This is the first time we've had the possibility of two claims that the same time.

We have had one attempt at mediation recently which appears to have stalled and so it is now going to the County Court. This involved a bottle of perfume which was lost and which was originally knocked back because it contained alcohol. Since then, they have moved their position and it is now being declined because it didn't have insurance. The mediator tried to put pressure and I'm pleased to say that the claimant refused and Hermes wouldn't back down and it's now going to the court for a hearing and so it will be very interesting – although there is still a chance that Hermes will bottle out before the hearing.

Because it's the issue of insurance, if they lose on this then it will be significant.

There was another case which went to a hearing and which was lost. This was quite some time ago and I don't remember very much about it because the claimant didn't ask us for help until far too late and I remember feeling that it was very badly pleaded and very badly argued – and of course to a certain extent you may get a judge who is generally unsympathetic to these things.

However the main problem was that the claimant didn't consult with us and it was badly pleaded.

We've had quite a number of cases now where Hermes have taken it to a mediation and try to get a compromise. Some people compromised and accepted less than they claimed. But we have had two or three people recently who stood their ground and Hermes paid up.

My view is that you have a serious chance of Hermes paying up for £230 plus costs – rather than risk going to court on the issue of insurance. The fact that a discarded wrapper was discovered suggest very strongly criminality on the part of a Hermes employee and it would be amazing to me if a court said that you must be held liable for a Hermes employees criminality. I think it is fairly slamdunk that the court will say that Hermes have to bear the responsibility for the criminality of their own employees.

If then you went to the second case separately, I would be arguing that the discarded packaging from one of the parcels been discovered. The second one had been sent to it exactly the same time from the same place to the same addressee and so it was extremely likely that this second parcel had suffered the same fate and it was simply that the packaging had been discovered.

I would expect that a court would accept this as being the very likely explanation.

Of course once again, Hermes would simply be defending on a claim of £230 plus costs.

If you see for both at the same time then they would be defending on a claim of £460 plus costs – and that might make it feel a bit more economical to them to take the risk.

I would suggest that a piece by piece – death of a thousand cuts approach is going to be much better for you.

[BankFodder]

There is no disadvantage to running the two claims separately. It gives you a second bite of the cherry – and your risk factor is less because the cost of bringing a single claim will be slightly less.

Nobody will make any judgement on you about bringing a second claim separately. These are simply legal tactics. There is no hoodwinking – although you can expect that Hermes won't be pleased – do you care?

If Hermes wants to save themselves costs then they can settle quickly instead of pushing it to a mediation in a hearing. Hermes regularly spends far more than the value of the claim in order to try and crush their opponents. They benefit from effectively a free County Court service which is paid for by taxpayers.

If you're reading about deadlock – then you are confusing the issue with financial complaints which are made through the financial ombudsman service. In those cases you have to obtain a letter of deadlock first – a final response – from the bank or financial institution before you can go to the ombudsman.

In the case of the courier industry, it is completely unregulated – which is why they get away with so much rubbish. Therefore letters of deadlock don't exist. You would certainly need to send a letter of claim and if you look around this sub- forum, you'll see loads of them. It's a very simple matter and we will help you draft one.

The limit on raising a second claim is six years from the date of the breach so I don't think you are troubled by this.

As I have said earlier, there is a huge merit in keeping the claim as small as possible so that there is even less incentive for Hermes to continue and push your court case. I can tell you that in this respect your interests this are not aligned with ours. We are campaigning group and we would love to see claims go to court and to be decided upon by charge. Your interests are simply to get the matter settled in to get your money as quickly as possible – and that is far more likely to happen if you bring a small claim for a small amount so that it is even more uneconomical for Hermes to take it any further.

I think for you the only question is are you prepared to bring a small claim in the County Court. If you are then frankly you shouldn't hesitate to bring the two claim separately. You may well find that once you brought the first claim and they have buckled down, that they will then buckle down very quickly to the second claim because they will realise that you mean business.

Part of the Hermes approach is to test you, to test your resolve and only to pay out if they know that there is a risk that it goes to court.

[BankFodder]

Okay well decide how you want to approach it. You know what I would do.

[BankFodder]

Okay. So far as I understand it you have attempted to make a claim against Hermes and they have knocked you back on the basis that the items were not insured.

I suggest

 

Quote

Dear Sir/Mdm

 

Letter of Claim – Reference Number XXX

 

 

on XXX date I used your service to return a pair of shoes to XXX retailer in XXX part of the country under your reference number XXX.

As you already know, the item was not delivered and in fact it was reported by the retailer that they had discovered part of the discarded packaging which indicates very strongly that the item has been stolen whilst in your care.

The value of the shoes was £XXX.

If I do not receive reimbursement in full of the sum within 14 days then I shall sue you in the County Court and without any further notice.

Yours faithfully

 

 

 

If you are happy with this then send it off. If there is something missing then let us know. I suggest very strongly that you don't send anything off or click anything off without passing it by us first.

If you make this threat then it's not a bluff. It means that on day 15 you will click off the claim. Don't imagine that Hermes will respond with the money.

In the intervening 14 days, make sure that you have read up quite a lot of the Hermes threads on the sub-forum so that you understand the arguments – especially around their principal basis of the defence which will be that you didn't take out any insurance. They will suggest that you "chose" not to take insurance.

Make sure you understand the ripostes to this argument and also that you are familiar with the unfair terms provisions in the consumer rights act and the duty of the judge to begin an examination of the fairness of the contractual terms under the judge's own initiative.

Register on the moneyclaim County Court website and start preparing your claim. You can save your work as you go. Post your proposed particulars of claim here for us to see – but keep it minimal.

On day 15, click off the claim.

Make sure that you have read the discussions on the sub- forum about mediation. The complicity of the mediator in Hermes attempt to reduce your claim and to get you to compromise on your rights – and how you should deal with that pressure – assuming that you are prepared to face them out (which includes a risk, of course, that the mediation might fail and you will go to a hearing where your arguments about insurance will be tested).
Of course if it does go to a hearing and then the issue of insurance is aired and examined by the judge, then it is Hermes which will face the greater risk because if they lose on that point that that will be the beginning of the end of their insurance trick which effectively gets their customers to insure against the courier's own negligence.

Make sure you understand also the importance of being able to show the judge that you didn't have any option because all courier companies operate the same insurance cover trick – getting their customers to insure against the company's own negligence or criminality. It will be important to show the judge that you didn't have any option. That they all play the same game.

So send the letter, register as suggested. Read all the arguments – and then come back here with any questions

[BankFodder]

You may as well – but it's not very important. As long as it gets through the door and you have evidence that it was sent, that's the important thing.

[BankFodder]

I've made an edit.

Note don't refer to the offer they made. Let them bring that up. No need to refer to the driver. They can bring that up or if it's relevant at all you can bring it up later.

Quite frankly the identity of the driver is their problem it's not yours.

[BankFodder]

When things are being ramped up to this level of litigation – then you need to be unambiguous and unequivocal.

However it's your letter and you must put whatever you feel comfortable with.

[BankFodder]

I feel that this might be slightly more to the point

Quote

The claimant used the defendant courier company to send a parcel to an address in XXX town, tracking number XXX. The parcel was collected by the defendant but never arrived at its destination although discarded packaging was discovered a few miles from the collection address. The parcel has been lost by reason of the defendant's negligence and/or criminality of an employee of the defendant and they are in breach of contract. The parcel contained shoes valued and at £229.47 p. Plus delivery fee – £2.94. The defendant has refused to reimburse the claimant.

[BankFodder]

Nothing urgent. Just go ahead and agree to mediation if that's what you are happy to do.

The defence is fairly predictable – I notice that they are saying that they put the parcel into the hands of a "self-employed courier" – so already, they are betraying their own staff and getting ready to hang someone out to dry. Bravo Hermes.

 

[BankFodder]

Well they are trying to say that the supplier has the contract with them – which is correct. However, when you read around, have a look at the times that they try to say that the customers contract is with Packlink and so therefore they, Hermes, are not involved and should not be sued.

We what we have to say about the Contracts (Rights of Third Parties) Act – and that gives you your answer to that particular aspect.

In terms of the second parcel, I would just keep mum about it for the moment. If it is settled at mediation and the mediator announces to you that there is an agreement. Then it might be the time to say that's great the agreement is confirmed (make sure that that is clear) and then ask the mediator to tell Hermes that there is the issue of a second parcel which you have litigated yet that which you will be doing very soon. You can tell the mediator they are not looking for an answer on that right now that Hermes should be aware that you will be going down exactly the same route.

However, get this one sorted out first of all. If it doesn't get sorted out at mediation then obviously we will have to look at it – but even then, I would say simply litigate on one parcel at a time. If it actually goes to court for a parcel and they lose then I think it would be very easy to bring the action for the second parcel – or even simply to get them to pay up because they will know, by that time, that you are serious

 

Read around and then let us know what questions you have

[BankFodder]

Thanks for this update. Well done.

I have to say I think that you are being extremely generous forgoing your £25. It's a drop in the ocean for Hermes – but as you say, it was your choice and the important thing is that you got the bulk of the money.

Yes, it will be fun going back the second time.