Hermes damaged my parcel 'beyond repair' and then disposed of it!

[AndyOrch]

 

[BankFodder]

Thanks. If you wish to proceed with mediation then you should fill out the form accordingly and send it off. If there is a question relating to which court you want the case to be heard – then it should be to your local court because you are a private individual. However, if it goes to hearing in the event the mediation fails, it is most likely to be a telephone hearing.

In terms of their defence – it is broadly as expected but what is hilarious is that we now have by their own admission that when they say that something is damaged, it generally means that it is disposed of.

In other words there is a complete admission here that not only do they seem to have damaged the item but also they have disposed of it – it's not even lost.

They also are pretty well admitting that they declined to provide any evidence of the damage so actually there is no evidence at all that the item may not have been stolen and simply marked down as damaged.

It certainly very difficult to imagine how a circuit board that is packed properly et cetera could be damaged. It's not glass, it's not porcelain, it doesn't contain liquids – or any of the other kinds of item which might reasonably be expected to be sufficiently fragile as to be more susceptible to damage.

So you are right to be very suspicious that the item was damaged at all. This suspicion is reinforced by their failure/refusal to provide any evidence of the damage – and then to say that in fact what they've done now is that they have disposed of it.

Clearly they knew who it belonged to because otherwise they wouldn't have known that it was damaged and they wouldn't inform you about this. So they could easily have returned it. They are going to say that it was too dangerous to return – but you have to ask – how on earth could it be dangerous? It's a totally inanimate inorganic non-fragile item. Clearly it could have been returned. Frankly I think it was just laziness on their part. They don't like to undertake the extra expense of having to return items and to deal with the fact that it was damaged – or even show you how it was damaged.

They failed to ask for any authority and it seems to be their standard approach simply to dispose of people's property without asking for authority – and this amounts to the Tort of Conversion. If the mediation fails then you should let the mediator know that if it does fail, then you will be adding a separate claim for Conversion/trespass to goods and you will be asking the judge to form their own opinion about this.

Then finally, they rely (as expected) on the lack of insurance. Once again, why should it fall to you to insure them against their own negligence or their own criminality.
Once again, it is absolutely outrageous that any company providing any services or any goods should then ask for any money from the customer in order to pay in advance a contribution towards the service providers' own negligence or the criminality of their own employees.

You will need to make this clear to the mediator that you will not accept this and that you consider that this is an unfair term under the consumer rights act. You should also tell the mediator that the consumer rights act contains provisions relating to unfair contract terms and also imposes a duty on the judge to make their own enquiries as to whether or not terms of the contract are unfair.
You should point out to the mediator that if the mediation fails, that you will be bringing up this point to the judge and you will be asking the judge to consider the fairness of the term which requires customers to insure themselves against the negligence or criminality of the service provider.

You should point out to the mediator that if the judge considers that it is unfair, that this will put a coach and horses through all of these insurance requirements of every courier company in the country and that P2G needs to be aware that if they push the shoe to a hearing then they risk a tsunami of claims – both in the future and also retrospectively to undo all of the unlawful and unfair decisions that they have made against people who have not bought their so-called "insurance".

On all of this, I would suggest to you that you are on extremely solid ground and that you should insist to the mediator that you will not move even a penny and that you want all of your money and all of your costs because if not the entire courier industry will regret it.

Please read around all our Hermes threads to understand what the mediation experience is – and how most of the time, it seems that mediators themselves are putting pressure on claimants to compromise. You should stand up for yourself and tell the mediator that it's none of their business and they are simply there to pass messages.

Insist on every last penny.

Even if it goes to court, your chances of success are very high indeed. Better than 90% in my view.

One last word, we've had at least one instance recently where apparently Hermes – but P2G could do the same thing- insisted as part of the deal that the claimant would not give any details of how the mediation progressed.

I expect this has happened because Hermes are following this forum and these stories. This is nothing to worry about – and frankly I hope that Hermes and P2G read this story so that they realise what serious trouble they are getting themselves into.

I would recommend to you that if you come under pressure to agree to a gagging clause as part of the condition of settling this, that you should refuse and that you should tell P2G  that you want all of your money including costs – unconditionally and you are not prepared to budge.

Tell them that you are not prepared to be bullied by any company to give up your rights or even to censor what you then go on to say to other people who are also victims of this unfair practice.

Please keep us updated and let us know when the mediation is booked



 

[bluemarineguy]

@Andyorch thankyou for your link. The advice that came with the N180 on pdf EX730 requested that if I ticked yes to mediation, that I should then fill out section B. I was uncomfortable not filling out the following sections but that was the advice. The accompanying email requested that I email the completed N180 to both the court and the defendant. I hope I did it right.

 

@BankFodder thankyou for your detailed reply, you have been such a help, I would never have had the courage to stand up to them otherwise. Your arguments are noted, I have a lot of study to do prior to mediation.

 

I will keep the post updated once I have a mediation date.

 

Thanks again

[bluemarineguy]

Got this message today:

 

Dear Claimant.

Your judgment request is returned for the following reason(s): Case referred to mediation.

Regards

Civil Money Claims

 

So I think we are good to go for mediation.

 

[AndyOrch]

Why did you request judgment ?  You have only just submitted your directions questionnaire.

[bluemarineguy]

@AndyorchI didnt, it was automatic because P2G had not replied within the timescale set by Moneyclaim to reply (including the extension P2G requested).

[bluemarineguy]

Just received the mediation date, 15/02

[AndyOrch]

Okay I see what happened they submitted their defence slightly late although dated 25th Jan.....MCOL applied judgment after 25/1/ and then revoked it.....Proceed as is.

[Zorks]

I’ve done mediation with them. I was claiming £194, they offered 60, then 80 then 100 finally 110, I refused  we are going to court. 

[bluemarineguy]

@Zorks Thank you for that info. I just read through your thread, very interesting. Do you have any tips for the mediation? It seemed that all they did was stick to the 'should have taken out insurance' line. Do you have a court date as yet? I think it would be a 'virtual' court anyway isnt it?

[Zorks]

No date yet. They were sticking to a script I think. They said they always win, I said see you in court then 

[BankFodder]

36 minutes ago, Zorks said:

No date yet. They were sticking to a script I think. They said they always win, I said see you in court then 

let us know as soon as you get a court date – and also it would be helpful if you would post these updates on your own thread.

Thanks

1 hour ago, bluemarineguy said:

@Zorks Thank you for that info. I just read through your thread, very interesting. Do you have any tips for the mediation? It seemed that all they did was stick to the 'should have taken out insurance' line. Do you have a court date as yet? I think it would be a 'virtual' court anyway isnt it?

Please let us know as soon as you get a date.

Thanks

[bluemarineguy]

 On my call with mediator now, just put my case across, wish me luck!

 

[AndyOrch]

Good luck.....

[bluemarineguy]

P2G offered no admission of liablilty and would only offer £218.18 of the claimed amount (£653.18), I refused the offer and said I would only accept full settlement. They refused and we are proceeeding to court!

 

Arguements were only that I did not take out insurance, quoting T&C's. I also quoted T&C's citing that they were liable as negligent. They did not deviate from the Insurance line. It was their only defence.

[BankFodder]

Okay. Thanks for the update.

Let us know when you get a hearing date. We will help you to provide documents in advance. It seems to me that they are taking a very serious risk on the issue of insurance because if they get a judgement against them then that will open a door to other complaints and P2G will find it very difficult to close that door again.

It is such a serious issue that I can imagine that for a hearing, they will instruct some serious lawyers who will arrive completely tooled up for the job.

On the other hand, it's such a serious issue and relatively so little money at stake in respect of your particular case, that there is still time for them to put their hands up.

Although it is too late now, your correct response to their point about their terms and conditions should have been the unenforceability of unfair terms as contained in the unfair terms section of the consumer rights act.

If you aren't familiar with this part of the 2015 act – then you better start reading it

[bluemarineguy]

Honestly, I could have quoted anything and it would not have mattered. I quoted Torts Act 1977, I also quoted their T&C's but they were not interested and stuck to the 'Didnt take insurance' line.

 

I did not get a response to my arguements, just a firm standpoint and an offer of just over a third of the claim, with it being made clear, that they would not be increasing it.

 

I will update when a court date is arranged.

[BankFodder]

Well the court certainly will listen to arguments relating to unfair terms – and it is on those provisions within the 2015 act that the case will be decided.

Go through them and notice that the court actually has a duty to initiate its own enquiry into the fairness or otherwise of contractual terms. However, a little respectful request will not go amiss.

I see that you have just given me like on a post relating to cross frontier contractual terms – I don't understand why you have done that

[bluemarineguy]

@BankFodderTHanks for the info. 

 

Regarding the like of your post, it muyst have been a mis-click. I have been doing a lot of reading on the site, on my phone and PC, so could have been my big finger.

 

[bluemarineguy]

No news yet, my Money claim site states 'waiting for judgement' the mediator said she would update my claim after the mediation failed in February but nothing has been updated that I can see. I have emailed them to ask the next step, I plan to take P2G to court.

 

[AndyOrch]

Not sure how it can state " waiting for Judgment " ...as there been a hearing since the mediation appointment ?  Did you not receive a Notice of allocation with the Courts Directions ?

[BankFodder]

I think you had better telephone the courts and find out what is going on. They are very nice but they are very under resourced and pretty inefficient.

Telephone the court and find out what is going on

[dx100uk]

more like wait for 'allocation' ....

[bluemarineguy]

@Andyorch since mediation, I have received nothing from the court.

 

@BankFodder I have emailed them and had an auto reply. The turnaround is no later than ten days. I will call them, thank you.

 

@dx100uk ''Wait for the judgment to be confirmed'' that is exactly what my case says.

[AndyOrch]

Have you asked for judgment ?...even without a hearing or the claim proceeding ?  Most probably an error at MCOL.