Parcel2Go & EVRi Loss - court claim issued **SETTLED BEFORE HEARING**

[supernick90]

It's not a case of being generous. And there is some middle ground between being paid over a period of 40 years, and giving them 3 weeks to pay in full.

 

The advantage (to my view at least) was the same as suggesting i'd be willing to go through mediation. To appear reasonable and increase the likelihood of succeeding if the case went ahead in court.

 

Wanting to appear reasonable because despite a CCJ being filed, there may yet be a defence filed before it is issued, and there may have been a postal defence yet to be processed.

 

I'm almost certainly wrong, but it doesn't make me any less likely to be paid, so it's only a minor misjudgement.

Edited February 8, 2021 by supernick90

[BankFodder]

Actually if they had had a sudden visit from a bailiff, they would be more likely to jump to attention and to pay. Although it's unlikely, if they find that they have got time to pay then they may at least consider a possible set-aside application.

Anyway it's done. Let's hope it all goes okay

[supernick90]

Email received just now stating:

 

We’ve passed your claim to County Court Business Centre.

From now on, you should send any forms, letters or other documents to this court and contact them with any questions you have.

Sign in to see the court contact details: https://www.moneyclaims.service.gov.uk/dashboard

 

What does this mean? Good or bad?

[BankFodder]

Well maybe you should give them a ring and see what's going on.

Sorry to say, but it could have all been so easy.

[supernick90]

1 minute ago, BankFodder said:

Well maybe you should give them a ring and see what's going on.

Sorry to say, but it could have all been so easy.

 

I don't think this is related to not demanding immediate payment.

[supernick90]

A full defence has/had been filed. Thus no default. I believe it had been in the post but not processed.

 

I have attached this, but its basically the standard rationale of me not having opted for premium protection.

 

They also note in their defence "The Claimant has no real prospect of success as liability is excluded by the Defendant's standard Terms and Conditions which were agreed by the claimant".

 

Fairly sure that statement is erroneous and their terms and conditions don't get to mandate whatever they like if it's unlawful.

 

I now have to complete an N180 Directions Questionnaire and the deadline has been extended to 08/03/21.

 

Suspect my prospects are substantially slimmer at this point.

def.pdf

[supernick90]

I also note that they seem to imply that no Letter Before action was received.

 

It was sent recorded delivery, although I don't know if I can now evidence this, which is my own fault. I will have to confirm this once lockdown has ended as the relevant tracking number will be at my place of work .

[AndyOrch]

 

[BankFodder]

I don't see any basis for suggesting that they are saying that no letter of claim was received.

In at least two places they have agreed that they knew that a legal claim was on its way.
There is nothing to worry about here.

The defence is their standard stuff. They are relying all the time on their position that they have standard terms and conditions which you have agreed to which effectively says that they will not bear any liability for negligence or the criminality of their employees unless you pay extra.
It's on that basis that your position is that the term is unfair.

In particular, they make it clear that the contractual term to which you apparently agree is part of their standard form contract.

This itself opens the door to a consideration that the terms are unfair. The fact that the contract is a standard form contract and is nonnegotiable immediately raises the prospect that there is an imbalance of power between the consumer and the service supplier which acts to the detriment of the consumer.
If there were choice – if it was possible to go to other courier companies where they didn't impose these requirements for insurance then it could be said that there was a competitive market and the consumer had a freedom to choose an alternative. However, the requirement of this so-called insurance is a feature of all courier contracts.



 

[supernick90]

That's reassuring.

My only concern is at this point, particularly with the courts operating remotely, they have committed time and resources to filing a defence.

 

There is little reason not to defend themselves in court, considering it's much less arduous at present.

 

Although perhaps they wouldn't want a precedent to be set and on record for future similar cases.

 

I don't know. Will file the 180 and see what happens I guess.

[BankFodder]

If you had read the other stories on this sub- forum and also if you had read the steps involved in taking a small claim in the County Court, you would see that a defence is absolutely normal at this point and effect they wouldn't be up to progress to mediation or anything if they hadn't found a defence.

Also, if you had read the other stories on this sub- forum, you would have seen that the defence they have filed is pretty well a template defence with the details changed and deals with exactly the same points that other defences have dealt with on the issue of insurance.

 

[supernick90]

Not sure why you assume I haven't read other posts. Not particularly referring to the particulars of my claim, as we all know it is justified as are many of the others. Although I note there isn't that much consistency in outcome, so it's evidently case by case.

 

My point relates to relatively recent measures whereby attending a court hearing is much less onerous for defendants due to being done remotely.

 

Therefore, while in better days they may have not wanted to spend the effort travelling to court for a small amount, it is much less of a commitment to remotely attend. Then it's up to whoever sees the case and their interpretation of the law/relevant legislation.

[supernick90]

I have read the page on mediation, but wanted to clarify a few details.

 

I have been given an arranged time for the mediation call. The email from the court states:

 

"for mediation to be successful, you would need to be willing to negotiate on the amount of the claim and have a degree of flexibility".

 

Should I have to give up ground? At this stage, I feel I am owed what I have lost, and what the claim has cost me, not to mention my time. The email says if you aren't willing then mediation is unsuitable.

 

It then also suggests:

 

"It is crucial that you are able to briefly and accurately explain your claim or defence. It is vital that you have prepared for the mediation by putting together a brief summary of your opening position. Only the key points are necessary at this stage as the longer the time taken discussing the disputed issues will reduce the time available for exploring settlement options."

 

I am of course aware of my opening position - that they were negligent and lost my item and thus I believe I am due recompense. However, I am not certain of the legal particulars of my argument.

 

Furthermore:

 

- Should I mention that the defendant may not wish to proceed to court as it may support a precedent for others in a similar situation to also claim against them?

- Are there any other things I should be mentioning to the mediator?

 

Appreciate the guidance.

[BankFodder]

First of all, they always say that you should be prepared to give up ground. If you are convinced as to your rights in the matter – and we certainly are – then there is no reason for you to give up any ground at all. You may come under pressure to give up ground – but you don't have to concede any ground.

The benefit to Hermes is that they don't end up going to court so that they are spared extra expense and also there are spared the embarrassment of a judgement against them.

When you are given the mediation date, then let us know and then we will go through it with you. However, read up on all of the threads in this sub- forum. You will find exactly your situation have occurred several times and have already gone to mediation and you will find that we have already given explanations on each one of the points.

Familiarise yourself with the stories and the principles involved.

When you get your mediation date then come back here and let us know.

[supernick90]

Thanks for the swift response. Will continue to read around.

 

I have a date of march 10.

[BankFodder]

I've had a brief look over the thread and I see that there principle point is that he didn't take out insurance.

Your answer to this is very simple – that it is absurd that you are required to pay to protect them against their own negligence or criminality of their employees or the people who are acting for them – in this case, Hermes.Your point here is that any requirement that a customer is required to pay extra to protect against the breach of contract is unfair within the meaning of the unfair terms provisions of the Consumer Rights Act.

Please have a read of the unfair terms provisions of the Consumer Rights Act. In

In particular, after you have read the sections within the act itself, get a schedule two and you will see examples of unfair terms. These are nonexhaustive which means that they are simply examples and lots of others can be added.

An important point is that it forms a significant imbalance between your interests and their interests. They are using a standard form contract which is nonnegotiable. There is no competition because all the courier industry are doing this so there is no opportunity for you to go elsewhere and get a different type of deal.

You will need to point out to the defendant – through the mediator – that included in the unfair terms provisions of the Consumer Rights Act is a provision that gives the court the power – in fact a duty – on its own initiative to examine the fairness or otherwise of any term.

Point out to the defendant that if they want to go to court then you are happy about it. That you will then raise the question of unfairness to the judge and also you will invite the judge to look at the entirety of the contract and to pronounce on the fairness or otherwise of the contractual terms.

Tell the defendant that you expect that the judge will decide unequivocally that a term of the contract which requires the customer to pay extra to protect themselves against the service providers breach of contract is grossly unfair – and in fact it is ridiculous.
Basically they are saying "pay us to deliver your goods – and pay us extra if you don't want us to lose them."

 

Explain to the defendant that you are fully aware that this is a culture within the courier industry which has developed over 30 or 40 years or more but it's not acceptable and that when you get a judgement in your favour which confirms that the term is unfair, (as will surely happen) that you will then make sure that copies of the judgement find their way all over the Internet including social media that is concerned specifically with complaints against the courier industry and then the game will be up for the loss of them.

One the mediator to tell the defendant that once you get this judgement, not only will people be claiming for ongoing lost items, but they will also be claiming retrospectively for legitimate claims which have been rejected on the basis of this unfair term.

Make it clear to the mediator – that they should tell the defendant that you're not dealing with very much money here – and you are prepared to risk it all in order to go to court and to demonstrate this principle.

If the mediator says that you should compromise then you should tell the mediator that if the defendant pays up in full – including costs and interest – that they will then be spared the problem of going to court and getting a judgement against them which will result in the loss of millions of pounds in the future.
Tell the mediator that this is the benefit to the defendant and you are not prepared to hand them any further benefit if it means sacrificing a single penny of your claim.

Tell the defendant to take it or leave it – you are happy either way.

 

It is very important that the defendant understands that you don't care either way whether you settle now mediation or goes to court.
The defendant as a huge amount to lose if it goes to court. You have very little to lose


 

[supernick90]

Spoke to the mediator. I outlined my points as much as I could, although felt rushed for time.

 

I made it clear the amount was negligible to me, and i'd risk it to go to court and set a precedent which may cost the defendant substantially more in future were a judgement to go in my favour. Referred to the consumer rights act (65.2 etc.)

 

When asked whether i would be flexible which is a mandatory term of mediation, I suggested the flexibility i was offering was that i would not go to court if they settled my claim in full. Which I expect was playing a bit fast and loose with what they mean by flexible.

 

The offer was £75 as a goodwill gesture. I rejected this. They are apparently happy with their legal position and their contract.

 

It's therefore likely to proceed to court unless something happens in the meantime which I doubt.

[BankFodder]

Thanks for this. I haven't looked back over the thread but I gather that their main point will be the fact that you didn't take out an insurance.

You know what we have to say about that – but look through the Hermes threads again and make sure that you understand the principle properly and also that you can express it clearly.

Also look up in the library here at the consumer rights act – and particularly find out about the power/duty of the judge to enquire into the fairness or otherwise of contractual terms. You will be asking the judge to do this in addition to saying that it is unfair to require you to insure against the negligence or criminality of the service provider.

It's impossible to say whether they will go all the way – but they are certainly risking a lot for a very small sum.

Anyway, you have stuck by your guns – and you may as well push it all the way.

I think it all depends on how well you express yourself to a judge.
Let us know when you hear anything about a date.

[supernick90]

 

It's now just an issue of principle - £200 vs £75, neither is going to have a huge impact, but I've come this far, so will see it through.

 

Thanks. You advised all of the above to me in terms of what to tell the mediator. Familiar with the principles, and the judge potentially pronouncing on the fairness or otherwise of the contract which may result in multiple future cases and retrospective cases for Parcel2Go.

 

I wasn't able to say everything i wanted to the mediator, about making sure copies of the judgement were circulated on social media etc., although I imagine Parcel2Go understand that's always a risk.

 

Any thoughts on when they are likely to try and settle (if they are to)? Would it be after a court date has been issued? They seem to have left everything to the last minute up until this point.

[BankFodder]

Any offer of settlement could be made right up until a couple of minutes before the hearing begins.

Although it would be a shame to lose the cash – if you are prepared to stand by your principles and see all the way to court then of course that would put them seriously at risk on the issue of insurance.

Please understand that even if there is a judgement in your favour – it doesn't become "a precedent". Precedents are only established in the higher courts. Not in County Court.

However, what it would do when the to cause a very serious ripple in the industry and of course I'm quite sure that we would get press coverage and so even though a precedent might not be established, I think it would create a large number of people suddenly becoming aware of the issue and aware of the possible rights and I think it would lead to a flood of complaints against all of the courier it industry which relies on these insurance policies – which of course is the entire courier industry.

One test of fairness is whether you had a choice. It's extremely important to be aware that all of the courier services operate this insurance system – so there is no choice. It's an industry standard. It is fixed in the standard terms and conditions of each courier company – and there is no negotiation.

Also, it would be not impossible for the courier companies to change their tariff systems to take into consideration the value of the item which is being sent as well. In other words, if you are sending an item value £XX – then the delivery fee would be £ABC.  If you were sending an item value £ZZZ – then the delivery fee would be charged to reflect that  value.

That would be a proper and fair system which I don't think one could challenge. However, they don't do that. Instead they use a sort of insurance system so that you are effectively paying to protect yourself against their shortcomings. Clearly it is the courier company that should purchase insurance to protect themselves against losses and claims on the customers.

It's just like extended warranties where people who buy fridges and computers are then being asked to pay extra to cover the repairs of goods which shouldn't break down anyway – and if they did, would be the responsibility of the retailer in any event.

It's a complete scam asking customers to pay for rights which they already enjoy under consumer law.

[supernick90]

 

Yes, the areas of the Consumer Rights Act and the schedule 2 noted about the bargaining positions of each party and suggests taking into account alternative means by which the consumer's requirements could have been met. As you say, they all have the same contract, so short of delivering it myself I have no option.

 

Re: precedent, i didn't realise this was a specific legal term. I just mean there will be a piece of evidence for future claimants to use. A judge ruling the contract was unfair presumably wouldn't mean they had to permanently change it, just that in this instance my claim is valid.

 

I am frankly happy to forgo the £75 to "beat" them and to achieve this aim of having evidence for similar cases. Had they offered me a higher amount I may have settled, but I consider that to be derisory.

Are there many notable court cases on these forums of people proceeding all the way to court specifically against P2G and winning? I couldn't find many, most seem to be directly against the underlying couriers?

[citizenB]

On 26/02/2021 at 18:07, supernick90 said:

Thanks for the swift response. Will continue to read around.

 

I have a date of march 10.

So, today is the day ?  How does the court system work in the current Covid situation ? 

 

[supernick90]

 

Today was the mediation. They offered around 40% of my claim which I rejected.

 

Yet to hear about court date. I imagine it's going to be done remotely via video conference. Will keep you updated.

[citizenB]

Ah right, my apologies.  I did not check the posting dates and thought today was the 'Big' day. 

hopefully you wont be kept waiting too long. 

[supernick90]

I feel I wasn't able to get all my points across to the mediator as was quite rushed. Points which may have encouraged P2G to give me what I have asked for.

 

I have an email address there specifically relating to court cases. Is there any reason I shouldn't email them to follow up and outline my whole argument, as these valid points may have an effect.