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Sueing Royal Mail......AGAIN*** Success***


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What happens when the Defendant fails to send documents upon which they intend to rely at the hearing?

 

In this case the date for doing so has come and gone. I have sent them (and to the court) my bundle but they have not.

 

I have requested the court throw out the defence and make judgement by default in my favour, but have just received an email stating my request for judgement will be placed in my file for the judge to see at the hearing.

 

Seems daft to me, that I might now have to spend time working on my presentation if the judge does not get to see my request for judgment without a hearing.

 

I would expect the case to be judged against the defendant and they could then appeal if they disagreed.

 

Its WAR

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I'm afraid that although strictly speaking their defence should be struck out and judgement awarded to you, in practice we see that there is a lot of latitude with these people and judges prefer to admit documents even at the last moment – at the time of the hearing.

It's profoundly unfair.

If this does happen then the only thing I can suggest would be there in the event that you win, that you point out their unreasonable litigation behaviour to the judge and that you asked the judge to exercise exceptional discretion to award you litigant in person costs.

In order to be prepared for this, you would be advised to stop keeping a close note of all the time you have spent on this – right from the beginning – including preparation – and list it all out in a spreadsheet.

Don't go for a money grab. You must keep it very realistic and completely supported by evidence or at least don't make any claim that a judge might consider it would be unreasonable.

It's unlikely that your claim for costs would succeed – but there is nothing to lose by putting it in – as long as you win, of course.

Is this a new problem or is this something that we've already been helping you with?

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This is a new issue,  of an international track and signed item being lost in the post and RM not paying the compensation because (as a business) I can only claim for the price I paid for the lost item and should give evidence of my purchase price, rather than my selling price. The item was for two spare Rolex watch links that were removed  from a watch. So I have no cost price as they were not actually purchased. So I claimed the £50 compensation (I sold them for £28 each). RM claim they sent me a cheque refunding the postage only (I have asked them to prove it).  Eitherway,  I sued for the £50 plus postage, plus 4 other Special Delivery items which were delivered late and they refused to refund the postage because I did not claim within 14 days of posting (but that is what it says in their conditions for making a claim, as if anyone knows that). So, I reckon I should win the main claim and might  lose on the 4 late ones. So with costs the claim is  about £120 and the telephone hearing is in 3 weeks. 

Its WAR

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  • 3 weeks later...

Documents arrived today. Hearing in 5 days. Their docs comprise of their defense, their T&Cs and some case law. About 80 pages. It will take 5 days to read and understand them. Interestingly though, last week they sent me a cheque to cover the postage of the lost item but said they could not offer any compensation for the lost items as I hadn't shown how much they cost me. The thing is, in their defense they stated that had sent me the postage and I asked them to prove it. They have failed to prove it, but simply paid it just now. I will argue that the item carried (up to) £50 compensation for International Track and Signed post and they have failed to make a payment. They will argue I haven't proven a trade price only my retail price and I should not be allowed to profit from the claim. They will argue there is not contract and even if they were the can't be sued. I will let the judge make up his mind on how much of the £50 compensation I should be due when the items only had value but no actual trade price. I have no real argument for the other special delivery UK items for failing to claim compensation within 14 days of sending. Ignorance of such a term is probably no defense unless the term is hidden away in small print in the bundle of T&Cs. I will argue the term is unfair anyway. Who even bothers to check to see if a special delivery parcel gets delivered the next day ? I reckon most people  never check unless the recipient says the parcel hasn't arrived.

 

Its WAR

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Court hearing today. WON on all counts of claim. The win though is not the interesting bit, but the ‘why’ is really useful. We were allocated 90 minutes but it took two hours by telephone . The defence were represented but I failed to note whether by a solicitor, barrister or other advocate.

 

As soon as the judge finished the introductions and before he had time to pass the time over to me to explain my case, the defence interrupted and asked the claim be struck out.

 

He then spent the next 40 minutes discussing with the judge that I had failed to properly serve my bundle upon which I intended to rely.

 

The judge asked me to explain and I said I had served the bundle to them and the court 3 days before the deadline, by signed for post with a tracking number to the address named in the summons being the Royal Mail Head Office in London. I said it was a bit rich that they were making this request when they had failed to serve me and the court with their bundle within the deadline and that I had only just received it.

 

They quoted a certain principle of law (which I failed to write down) which explained that service of documents must be made to the address which either party may request service to be made. They claimed that six months earlier when they lodged their defence to my summons, the covering letter had been sent from their Sheffield office and it constituted the address for future service of documents. 

 

I of course had no idea of such a requirement and said that a simple letter heading on a piece of correspondence was not the same as a formal sentence in a letter requesting such future service. It gave the judge some concern but he decided to park the issue and allow the hearing to continue.

 

I was able to explain my case for the £50 compensation for the lost parcel using the evidence from the defence bundle referencing the Overseas Post Scheme. It was all straight forward. I explained the facts and let them speak for themselves.

 

I then moved on to the delayed Special Delivery items. This is where the fun began because I had to argue against their terms and conditions. I used the defence bundle referencing the UK Post Scheme. I quoted from various clauses which explained the rules relating to claims. That ALL delay claims must be made within 3 months, then that Special Delivery was actually 14 days so not 3 months after all, then another clause which confirmed the deadline was 3 months for all delay claims. c

 

I quoted further that these were “common terms” and that some services (Special Delivery was one) had additional terms which were called “specific terms”. Another clause stated that where a conflict arises between common and specific terms, then specific terms took priority.

 

So I turned to the Special Delivery section to quote the specific terms as these would have priority. There was only one term that referenced claims. It simply said If we do not succeed in attempting to deliver by this time (being the next day) we will refund your postage.

 

I used this single phrase to take priority over the 3 months  or 14 day deadline mentioned in the common terms. I discussed how the various clauses conflicted with themselves as if the clauses themselves did not know what the deadlines were and how ambiguous and confusing it was.

 

The time was then passed to the defence and he started to argue there was no contract nor liability in tort (a substantial portion of their written defence document and bundle discussed this argument).

 

It made me smile because I was ready for that. The judge though was ahead of the game and (especially because 40 minutes had been wasted at the beginning) he did not want to hear of it. After about one minute, he stopped the defence by saying exactly what I was preparing to say. c

 

Simply that I was not suing under contract or tort but under the conditions of the various postal schemes for which they were liable. He asked the defence to answer my claims. The defence then prevaricated trying to argue the clause that distinctly mentioned the 14 day time limit within which to make a claim for delay (which of course it did) ( as an aside, most people might accept that deadline and not bother to pursue a claim). He had nothing to add about the lost parcel.

 

Time had run out, we had no questioning and the judge said he was summing up. He was quite happy I had served my documents sufficiently well and took the view that the defence had fallen foul of the court order so he was cancelling out the question about valid service. He had no difficulty in accepting the claim that the lost parcel was valid and awarded me the £50 compensation.

 

He then spoke at longer length about the delay claims and the conflict in the clauses. (at this point I had no idea which way this bit would go). Then, he spoke of how a business such as Royal Mail should not be accepting clauses in their contracts which were clearly inconsistant. (that’s when I started to relax), (and then the best takeaway of the hearing),

 

He said that common law provides in the event of a standard contract if there is any ambiguity, the interpretation should be judged against the person drafting the contract. He called it Contra Proferendem. (I had no idea of that concept but had effectively explained it anyway). I was awarded the whole claim plus costs. The defence asked for permission to appeal which was refused.

 

 Remember the phrase “Contra Proferendem” . I shall be looking more into it. I am sure it will come in handy against any institution that have drafted contracts that cannot be individually negotiated. And will certainly be useful for a long while yet against Royal Mail et al.

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Its WAR

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  • Andyorch changed the title to Sueing Royal Mail......AGAIN*** Success***

Great result topic title updated.

 

Service of documents is covered in CPR 6  in particular 6.23....Address for service to be given after proceedings are started.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.20

 

And Contra proferentem, also known as "interpretation against the draftsman", is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording.

 

Well done

 

Andy

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Yes Andy, that was it  6.23.1.  That's twice I have been ambushed by CPR rules. It would be worth studying them to see if I can ever use to my advantage, or at least be familiar with them in any case. I still reckon a letterheaded paper with an address on it (different to the summons address of the defendant), does not constitute proper notification that service of further documents should now go to that address. Especially as the body of the letter simply said "Please find enclosed copy of defense" and gave no instruction that the new address was now the service address.

Any how, the judge accepted my argument more.....................but it could have tripped me up. Instead, by wasting 40 minutes on it, the defense didn't spend enough time arguing the claim itself. In fact, I could have argued their defense far better than they did and would have done so on a no win no fee basis. My fee would have been for more than the value of the claim but far less than the one they had to pay their guy.

 

Its WAR

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  • 2 weeks later...

 

Thanks for writing up your experience.

 

I see both you and the judge were prepared for Royal Mail's defence regarding immunity for liability in tort.

 

Would you mind expanding on the part you described below?

 

When you provided your particulars of claim did you have to present your claim within the context of the conditions of the various postal schemes, can these conditions be found any where for easy reference?
 

Quote

The time was then passed to the defence and he started to argue there was no contract nor liability in tort (a substantial portion of their written defence document and bundle discussed this argument).

 

It made me smile because I was ready for that. The judge though was ahead of the game and (especially because 40 minutes had been wasted at the beginning) he did not want to hear of it. After about one minute, he stopped the defence by saying exactly what I was preparing to say. c

 

Simply that I was not suing under contract or tort but under the conditions of the various postal schemes for which they were liable. He asked the defence to answer my claims. The defence then prevaricated trying to argue the clause that distinctly mentioned the 14 day time limit within which to make a claim for delay (which of course it did) ( as an aside, most people might accept that deadline and not bother to pursue a claim). He had nothing to add about the lost parcel.

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Posted (edited)

Now I see, did you perhaps bring your claim under the Postal Service Act 2000?

 

Or perhaps you were referring to this document? The Royal Mail United Kingdom Post Scheme

Edited by FruitSalad1010
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My particulars of claim were brief. I wanted to discuss the various postal schemes and especially because time was running out, I did not want to bring up their claim to have no liability in tort. Although they did bring it up, the judge was not wanting to waste time on it. They had detailed that part of their defence quite extensively in their witness statement too.

 

It would be could to see how a defense against their claim of having no liability in tort would look like. Especially as it looks quite daunting and must put a lot of claimants off proceeding.

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Its WAR

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