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

[BankFodder]

Please monitor this thread for a reply tomorrow

[BankFodder]

Firstly, a little less of the being humbled and being intimidated would be a better approach when dealing with this kind of problem.

 

Secondly, this is a self-help forum and so although we give advice, personalised responses are not necessarily part of it – and the whole thing counts a lot on you reading around the various stories on the sub- forum for you to understand the principles which came into play in each story and to tease out the bits that are relevant to you. You say that you don't find anything which matches your situation identically – I'm sure that's right. But if you understand the principles then that's all that matters.

The threads which was suggested by my site team colleague @dx100uk acted as a very important signpost as to the issues which are involved and the principles which will come in play and you should read them and others very closely so that you develop an overview based on the experience of others.

You should also understand that this thread is not only for you, it's for anybody else who comes along with similar problems and wants to understand the situation. This is why you are able to benefit from the stories of others – because they are all available on this forum for anyone to read.
So don't knock it.

The first thing I understand is that you used Parcel2Go to select Hermes to deliver your graphics card which apparently is worth £650. That was a Big Fail.

You seem to be regretting the fact that you didn't buy an insurance cover for it – but hopefully you will have read around sufficient stories on this forum to understand that firstly it's unfair to be required to insure yourself against the negligence or criminal activities of the courier. It is they who should be insuring themselves against their own failings.
Secondly, you will probably have learned that a very large number of people, even though they have bought this so-called insurance, still get their claims rejected on all source of spurious grounds.
It seems to me that your real source of regret should be that you went with Hermes – not that you didn't insure.

An interesting aspect of your case is the fact that they apparently have claimed that it was damaged beyond repair and therefore destroyed. We have had this come up a few times – and in fact my site team colleague referred you to one of those cases which you should now be following and which we are still dealing with and so there will be some interesting lessons to be learned. To that extent, we will learn some things from your case as well.

However, we tend to find that although the initial information from the courier or the broker is that the item was damaged and then destroyed, when it actually comes down to mounting a defence in the court papers, they have avoided using this justification and simply said that the item was lost.

My view is that if they start to say that they have taken it upon themselves to throw away people's property because it was damaged, that they are on very shaky grounds and frankly that would be a very serious basis for concern.

I am quite looking forward to an opportunity for the issue of the property being damaged and then thrown away to come up in court proceedings. I think we really need to get a judge to look at this and to pronounce on this.
I'm not aware that there is any contractual provision which purports to allow them to do this – and in any event I think it would be unfair. At the very least there should be evidence and there should be an explanation of why the damaged parcel posed a danger to anybody and therefore had to be destroyed.

I suspect that in the end, if you issue court proceedings – as I'm sure you will have to – that they will stop referring to the fact that it was damaged and simply say that it was lost. That seems to be the usual pattern.

As you will see, the majority of Hermes cases involve contracts which have been arranged through Packlink – which seems to be Hermes pet broker and who of course are conveniently domiciled in Spain – out of the reach of most complainants. Hermes regularly tries to put people off by saying that there is no contract directly with them but only with Packlink. You will see in your reading of this sub- forum that people enjoy third party rights to sue Hermes and frankly it is an abuse of process and fundamentally dishonest of Hermes even to suggest otherwise. Hermes sign their defences use a statement of truth and it seems to me that they are well aware of the third-party situation. In fact we just recently had a success through the mediation where apparently the mediator indicated that they were aware of the third-party rights.

In your case, the issue of Packlink doesn't arise. You arranged the delivery through Parcel2Go and they are domiciled in the UK. This means that you can either sue parcel2go or Hermes.

As Parcel2Go is the first party contracting partner, it is probably better to sue them rather than Hermes – and also I think it will be interesting to cause a bit of tension between the two of them and this might happen if you sue Parcel2Go and they find that they are being held liable for the negligence or criminal activity of Hermes. Of course it's just a drop in the ocean for them – but every little bit of tension will help.

The story is you have posted it is rather rambling and icludes lots of "distress", "upset", incredulity, outrage et cetera.

I think it would be helpful if you would simply repost your story but using a bullet pointed chronology so that we have a timeline point by point. Don't bother about the narrative.

Also, if you have put in a complaint to parcel2go then maybe you could post that up here and also their response denying you liability.

Also if you have something from Hermes saying that it has been destroyed, please post that up here as well.

Apart from that keep on reading round the sub forms. Make sure that you thoroughly understand how it all works out so that you have your own "personalised" view of your position.

Also it would probably be a good idea to start reading round this forum about how to bring a small claim in the County Court.

[BankFodder]

Okay well it seems to me that you are at a point where you may as well issue a letter of claim against parcel2go.

Read around, understand the principles.

Spend some time understanding the steps involved in bringing a small claim. Understand also that it will probably go to mediation – although we're not entirely sure what parcel2go's response pattern is like because we are more used to dealing with Hermes.

Understand how mediation normally works. The role of the mediator. The attempt to make you compromise on your rights and whether you want to choose to put your heels in and insist on the lot.

Make sure that you are happy to incur the costs of bringing a small claim for this value – which will probably about a hundred quid or so – which you will get back if you win. However, be prepared to accept the risk of losing and that you might then lose your court fees as well.

Come back here when you're sure that this is what you want to do and you want to issue the claim and we will help you through the next step

[BankFodder]

Okay, that letter of claim will do. It's a bit wordy – but it doesn't matter.

Send it off and register on the moneyclaim website and start preparing your claim. You can save your work as you go. Post your proposed particulars of claim here for us to have a look. Keep them brief.

There will be a checkbox for you to tick if you want to send further particulars of claim but I don't think you need to. Don't tick the box although let us see your particulars of claim first.

Get ready to click the claim off on day 15

[BankFodder]

I expect you only need about a quarter of that. We'll have a look tomorrow or during the week

[BankFodder]

 

Use this as a basis

 

 

Quote

I used the defendants' service to courier a parcel containing a computer component to and address in XXXtown. Reference number XXXX using a signed for 24hour guaranteed delivery option. On the day of expected delivery, I was informed that my parcel was damaged. I requested the return of my property but in breach of this instruction the item was apparently destroyed.The defendant has declined to provide evidence of the damage or the destruction  and had no authority to deal with my property in this way in any event.

 

[BankFodder]

Thanks for this. Their reply is completely predictable.

If you are still prepared to go ahead then you should send the claim as soon as possible.

Sorry about the Covid – but it looks like you are surviving. Bravo

[BankFodder]

Thanks for this. This is absolutely normal for P2G. They always acknowledge and extend the time for the defence by extra 14 days – to 28 days in total.

Probably the next thing you will get will be a fairly normal cut-and-paste defence. Then at some point you will receive a directions questionnaire asking you if you want to continue, which court you want to go to and indicating that P2G is prepared to go to mediation and are you happy to do this as well.

It will be when you receive the DQ that you have to make the decision about whether to pay the fee which goes along with that. Assuming that you win your case then you will get all of that back.

This is P2G testing you and pushing you and seeing how far you are prepared to go.

[BankFodder]

Excellent well done.

Please do understand that even though they have missed the deadline, if they suddenly wake up and put in their defence before your application for judgement is approved, then their defence will take priority.

So although it's looking good, you can't be sure for at least seven or eight days – and maybe the whole 10 days.

Keep an eye on what happens in let us know.

[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



 

[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

[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

[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

[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

[BankFodder]

Thanks for the update.

Have you make sure that you have updated everybody has to your new address?

 

 

[BankFodder]

Well somehow you are going to have to overcome all these difficulties because if you start missing deadlines or even the hearing, your case will be dismissed and the defendants might even ask for some costs.

I would suggest that in addition to anything else that you email the other side and you tell them that because of some core problem which you haven't identified yet you haven't been sent your N157 and so you have no idea as to what the court has ordered or to a hearing date and please will they let you have a copy of theirs.

If they are sensible professional then they will do this. Send a copy of the email to the court so the court knows what is happening and the fact that you have approach other side for information. If later on the other side does not help you and you end up losing your case as a result of this, then you will be in a better position to ask for set-aside of a judgement on the basis that the defendants had full knowledge of the problem and yet they went ahead in any event to get a judgement.

However you need to start emailing the court as hard as you can go. I think that I notice that even in May you realised you hadn't had an N157

[BankFodder]

Contact the defendant anyway. There's nothing to lose – there's no shame. Do it now.

Then do it again next week if you've not heard back from them

[BankFodder]

Send by email and by post special next day delivery. Refer to the email in the post and referred to the post in the email

[BankFodder]

I think we would rather like an update to this case please.

Also, looking through it I notice that we haven't seen the uploaded version of the particulars of claim.

This needs to be uploaded in PDF format – redacted

[BankFodder]

As posted above, please can we see your claim form in PDF format .

 

You are right to reject any offers from them.

There have been some important developments

 

 

Also, how long ago did they make this offer? What date

 

Also, what did you supply by way of your bundle and what date?

[BankFodder]

I'm going to say now that asking the court to move at such a late stage, it's only going to create more complications .

 

As I've suggested above, there have been some important developments and if the OP will decide to engage with this thread and give us the information we have been asking for, then we will be able to suggest a very useful strategy that may bring an end to this litigation in a very satisfactory way .

 

However, the OP doesn't seem to be inclined to share information with us

 

 

[BankFodder]

Please will you upload the claim form in PDF format .

We also are doing this from our workplaces or from our family homes and with other commitments

 

[BankFodder]

Let's not start getting into a row. We need the documents that we've asked for and also answers to the questions .

 

You will be astonished at the suggestion I'm going to make with a very high chance of success and even possibly sparing you the need for a court hearing .

 

However, we can't move forward until you provide the information we are requesting

 

 

[BankFodder]

You only need to redact your details- don't worry about their details.

 

 

We need to see their witness statement but also your claim form.

 

And also I'm still waiting for the date that you submitted your bundle and especially the date that they submitted theirs

 

 

Also, I'm a bit worried that you say that you are sure that they are on your home computer .

This suggests to me that you may not have them at all

 

[BankFodder]

Well somewhere along the line there must have been an order requiring you to file and serve the documents that you are going to rely upon – your court bundle by a certain date.
If that date has passed and you haven't obeyed the order, then you are prejudicing your position and the risk of your claim being struck out and losing all your money and your costs.

This deadline for submitting your court bundle would normally be on the order giving you the court date.

This is one of the reasons why we want to see this information.

You should realise that we are working very hard to protect your interests. You should also realise that nobody on this forum gets paid for the help we give. This is all done with the utmost goodwill for you.
We appreciate it when people make our job a little easier.