Hermes lost £350 Bean-to-cup coffee machine being returned to retailer **WON**

[littlepitch]

I purchased a bean-to-cup coffee machine from Appliances Direct for £349.97. Unfortunately it was too big for the intended space in our kitchen so I returned it using Hermes. I didn't take out their insurance.

 

I left the parcel at my local drop-off point and Hermes collected it. After a week it wasn't delivered back to the retailer so I contacted Hermes and they confirmed that it was lost in their depot. They sent me a claim form which I completed and returned.  I have recently heard from Hermes that they will compensate me just £20 plus postage costs. I am losing out because I didn't insure against their negligence.

 

I have seen many other instances on this forum of similar occurrences with Hermes and I feel I am being subject to their unfair Ts & Cs. Will I win a small claim against them?

 

I have drafted out a letter before claim and would be grateful if someone could review it before I send it.  Also, is email correspondence sufficient?

Hermes Letter before Claim.pdf

[honeybee13]

Hello littlepitch and welcome to CAG. I expect people will be along later to advise you and for what it's worth, we don't think you should have to insure a package to be compensated for it being lost.

 

Best, HB

[BankFodder]

Before we start advising on this, could you just clarify whether the return was organised by you or by the retailer?

 

[littlepitch]

The return was organised by me in response to the retailer's email. Here the relevant extract:

 

We do not cover the postage cost of returning unwanted items, however we would recommend using the following website https://www.myparceldelivery.com/ which will provide you with details for several different courier services and allow you to compare prices.

[BankFodder]

Thank you. Actually, the retailer was obliged to pay for the return as long as it was not of a particular faster quality of return than the original delivery. On the basis that they recommended a delivery service, then they would have been obliged to pick up the tab. Therefore there statement that they don't cover postage costs is unlawful and unenforceable.

However, in the end you made your own arrangements to return the item and I think that probably relieves the retailer of the responsibility of having to reimburse you. If the retailer had actually identified the courier and provided their own label et cetera then the retailer would have had to bear responsibility for the loss of the item.

In that case, here is some advice which I gave only half an hour ago to somebody else who may be claiming for a much smaller sum of money:

 

I would suggest that you spend this afternoon and maybe some of tomorrow reading up on the Hermes stories on the sub- forum so that you understand how it all works. It is by and large always the same story.

Understand in particular what we have to say about requiring insurance to protect yourself against their own negligence or the criminality of their employees – because this will be their main point of defence.

Also, have a look at people's accounts of their mediation experience. It is likely that your case will go to mediation and that is where Hermes will try to knock you down and get you to compromise.

I would recommend that you stand your ground and tell Hermes that you are happy to go to court and obtain a judgement which will drive a nail to their insurance argument and which will then be published on this forum and elsewhere on social media.

Also, read up on this forum about the steps required to bring a small claim in the County Court. It's very easy but it is worth understanding the steps in advance so that you have confidence.

There will be a fee – for the amount you are claiming I think the County Court fee is about £50 and then there will also be a hearing fee of about £60. Assuming that you win, you will get your money back. Of course Hermes will try to get you to compromise and generally speaking they try to get people to bear their own court costs. Once again, you should stand your ground and refused to compromise at all. 

Have a look at the reading I've proposed and then come back here. If you understand it and you want to go ahead then we will support you all the way. However, don't imagine that sending a letter of claim will suddenly produce results. It won't. It's not a bluff. If you give them 14 days before taking legal action then you can be certain that on day 15 you will have to click off the claim.

Do the reading and let us know.

[littlepitch]

I have already read some of the threads about Hermes on this forum which is what convinced me to go ahead with my claim.  The fee for the amount I am claiming is £35 if done online, so yes, I want to proceed and will continue reading up on mediation and unfair contract terms.

[littlepitch]

I'm not sure how relevant this is but when I returned this coffee machine using Hermes, I also returned a bread machine at the same time. Both were picked up together and both were lost.

 

The difference is that the bread machine was being returned to Amazon and they refunded the costs (less postage) as soon as the tracking indicated that Hermes had collected the parcel.  Both items remain lost.

 

I don't know whether introducing this would enhance my case or just cloud the issue. Any thoughts?

 

Any comments about my letter before claim?  It's a pdf at the top of this thread.

[BankFodder]

No I'm not sure that it's relevant. Presumably they were sent under different tracking numbers as different parcels.

Presumably Amazon themselves supplied the label? If you made your own arrangements then you did very well with Amazon because they can be quite difficult sometimes

[littlepitch]

Yes, Amazon supplied the label. That's the reason I chose Hermes for the coffee machine.

[BankFodder]

I see. Amazon chose Hermes for the return of the bread machine so you decided that that was probably good enough to you and you use it for the coffee machine?

Anyway, I don't think it's relevant - to your claim against Hermes for the coffee machine

[BankFodder]

I'm not sure why you gave them 28 days. 14 days is more than adequate and if you have read around the sub- forums here you will see that 14 days is all that is ever given.

I would always feel uncomfortable about not having a written confirmation that they are waiving the 14 day pre-action protocol. If you want to continue on the basis of phone call then that's fine but if they eventually objected, then it could conceivably cause your problem.

They probably won't object – but I normally prefer to be cautious about these things

[littlepitch]

I'm quite relaxed about 28 days, I'm in no hurry.  I got the template letter from Which so decided to use it. 

 

Also, if Hermes are keen for me to go ahead,  then I'll do the opposite and wait for 28 days before starting my claim. 

[BankFodder]

Yes I thought that you got the letter from Which.

I think it's in your interest to start deciding who you are going to get your advice from and stick with it. The people at Which get paid for it. We don't.

I'm afraid that giving 28 days was not your best interests. It is far too long and you simply give the impression that you're not really prepared to assert yourself.

 

[littlepitch]

No duplicity intended. I only used the Which template because I couldn't find one on this website. I definitely will stick with CAG through the process. Thanks for your advice so far. 

[BankFodder]

Nobody suspects you of duplicity. That's not the point – it simply that you need to decide which horse you are going to ride and then stick with it.

[littlepitch]

So my 28 days are almost up and I am getting ready to begin my claim against Hermes.  I have attached my draft particulars of claim and would be grateful for any feedback.

Particulars of Claim.pdf

[BankFodder]

The POC is fine except that it is interest which is pursuant to section 69 of the County Court act 1984. Not costs.

So it should read – plus interest pursuant to section 69 County Courts act 1984+ costs

[littlepitch]

Thank you for your feedback.  I have just submitted my claim. I will keep you posted on events.

[littlepitch]

So here, finally, is Hermes Defence.

Hermes Defence.pdf

[BankFodder]

Okay it's a standard defence. Their main point is that you didn't get insurance.

Make sure you read around the Hermes sub- forums and understand what we have to say about insurance and the fact that it is unfair and unenforceable.

The next step will be that you will get the DQ through the post – Hermes will probably indicate that they are happy to do mediation and you should do the same. Read up the mediation stories on this sub- forum.

The whole thing is a real waste of time. Hermes push it to the limit. They really are dishonest

[littlepitch]

My mediation appointment is 1st July.   I have read up on mediation and feel ready to stand my ground.  Will advise on the outcome.

[BankFodder]

Thank you.

I suppose that you have read enough to understand that the fact that Hermes are going to mediation means that there will definitely be money put on the table. The question is how much – and how much you are prepared to stand your ground. We have had some cases where Hermes are happy to save some Face simply by managing to get out of paying the court costs and even settling for only half of the costs.

You will come under pressure to make some compromise. Don't forget that the strongest point is to make sure that the mediator tells Hermes that if they want to go to court then you will invite the judge to exercise their powers under the Consumer Rights Act to consider the Hermes terms and conditions for fairness or unfairness and in particular to consider their requirement that it is the customer who protect themselves against Hermes negligence or criminality of their employees and not Hermes.
I had said that the loss of the bread machine was not relevant – but in fact the more I think of it, I think it could be helpful because it points even more at the fact that your coffee machine and your bread machine were each stolen and as they entered the delivery chain at the same point and must have gone at least initially to the same hub, they might each have been targeted by the same person or group of people as items worth stealing.
These are both relatively high value and desirable items.
So I think it would be worth getting the mediator to tell Hermes that the fact that both machines disappeared is just too much of a coincidence and you are certainly not going to pay insurance to protect Hermes against the criminality of their own employees. It is Hermes should assume responsibility for this because the financial burden on them will encourage them to be more diligent about their systems and also about who they employ.
I think it's important that you make the point that while the customer has to pay to protect Hermes from criminality, there is empty no incentive on Hermes to improve in any way.

So your position should be that if Hermes want to go to court simply to save a few quid – then so be it. You will bring the entire insurance question to the attention of the judge. The judge has a duty to consider the fairness or otherwise of the term and if the judge finds that the term requiring insurance is unfair then the cost to Hermes in terms of future claims and also retrospective claims where they have denied other unfortunate victims in the past on the basis of no insurance, will cost Hermes an incredible amount of money – probably millions.

The only other thing to add is that mediation almost always leads to settlement but occasionally when the claimant seeks their heels in, the mediation appears to fail so that it has to go to court. However, so far in the half a dozen or so cases where the mediation has failed, as far as we can make out no case has then gone on to court for a hearing. In fact the people that we have helped on this forum have then gone silent.

We are assuming that Hermes then reaches out to the claimant and makes a confidential offer of settlement in order to avoid the final hearing.

I can't think of any other explanation for why the claim appears not to continue. Of course no promises to you – but all the signs are that Hermes then settles the claim but discreetly and without it finding its way onto social media

[unclebulgaria67]

Out of interest do Couriers such as Hermes clearly state the Insurance aspect when the transit is arranged ?

 

Or is it just hidden in t&c's  ?

 

If i were using services of a well known Courier company, unless they told me clearly when arranging transit about needing Insurance, I would presume Hermes would have Insurance to cover items while in their possession 

 

[BankFodder]

No, I believe that it comes up as a question as part of the process so there is no particular issue that it is concealed in their terms and conditions.

• The reason that we say it is unfair is because first of all there is no choice in the sense that everyone in the industry is doing it so it is not possible to go to another provider and select a service without that provision.
• Secondly as has been emphasised above and elsewhere, it cannot be correct that the service provider expects the customer to protect – (essentially the service provider) – from having to bear the cost of compensating for their own negligence or the criminality of their own employees. This is effectively requiring the customer to pay for the service provider' s breach of contract.
• Thirdly, the service provider is required to use reasonable care and skill – and the insurance requirement amounts to contracting out of their duty.
• Fourthly, where an item is stolen, not only is it a criminal act but also it is an act of conversion – which is a tort. It is unfair to require the customer to be responsible for the torts of the service providers own employees.
• Fifth, the service provider is a large well resourced company and is the better loss bearer.
• Six, the service provider would be able to obtain insurance on extremely advantageous rates compared to the premiums which are required from their customers.
• Seven, it is anti-competitive in the sense that requiring the customer to take out what is effectively a warranty, removes the motivation from the service provider to improve their systems or to be more diligent about who they employ.
• Eight, (and of course we will never discover…) It would be interesting to know how much of the insurance premiums is actually spent refunding customers for their lost and damaged items, and how much is simply profit for the service provider. (Given that they deliver millions of parcels every year, I'll bet you it's a nice little sideline.)
• It wouldn't be beyond the wit of the service providers to structure their tariffs differently so that an insurance element is still included but is simply presented differently as part of the basic delivery cost. This would mean that the tariffs would be rejigged – and nobody would ever be denied compensation because some kind of insurance element would be built into the system. (Let's face it, this is how insurance works anyway – it's all about loss distribution.)

[littlepitch]

Thanks Bankfodder for your advice on mentioning the bread machine. I certainly will.  It's interesting that when I claimed a refund from Hermes they just rejected my claim and referred me to Amazon. They must know that Amazon issue a refund as soon as the returned goods enter the Hermes system.  Another example of Hermes profiteering from losses.