The courier industry insurance requirements are unenforceable because:

[BankFodder]

 

The insurance requirements are unfair and therefore unenforceable terms.

 

• First, the delivery companies' insurance is unlawful because it is contrary to section 57 of the Consumer Rights Act 2015 which specifically prohibits the exclusion or limitation of any liability for the failure to take reasonable skill and care.

 

• Second, the insurance contract itself is a secondary contract which is also designed to exclude or to limit liability and these kinds of secondary contracts are specifically prohibited by section 72 of the Consumer Rights Act 2015.

 

• Third, it cannot be correct that the service provider expects the customer to protect – (essentially them, 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.

 

• Fourth, the service provider is required to use reasonable care and skill – and the insurance requirement amounts to contracting out of their duty.

 

• Fifth. The insurance requirement imposed by the courier industry is intended to remove your rights under the Consumer Rights Act that the service provided to you should be carried out with reasonable care and skill. The insurance requirement effectively grants you that right only if you pay an additional fee and this amounts to an attempt to restrict or exclude the courier's liability and is contrary to section 57 of the Consumer Rights Act 2015. (It is worth pointing out that the courier industry insurance requirement is different to warranties and extended warranties – because extended warranties supplement your statutory rights. The courier industry insurance requirement is a very clear attempt to deprive you of your statutory rights unless you pay an additional fee.)

 

• Six, 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.

 

• Seven, the service provider is a large well resourced company and is the "better loss bearer".

 

• Eight, the service provider would be able to obtain insurance at extremely advantageous rates from commercial insurers compared to the premiums which are required from their customers.

 

• Nine, 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.

 

• Ten, the customer has 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.

 

• Eleven, the courier industry does have a choice.  They have an alternative way of dealing with this. 
  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.)
  This solution would allow the insurers to keep some of the huge sums of money that they are making from this fake insurance anyway. Of course the proper way to go would be to obtain insurance from a commercial insurer – just like every other company in the world does – except the parcel delivery industry!

 

• Twelve, (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 running into billions of pounds.)

 

• Thirteen, the enhanced compensation scheme is really the same as an extended warranty. However extended warranties are not allowed to replace your consumer rights. They simply enhance your rights

 

• Fourteen, "enhanced compensation" should be a scheme which enhances your rights. It should not be a scheme which replaces your rights.
  Enhanced compensation could be valid if, for instance, it is intended to reimburse you in the event that the loss or damage to your item is not caused by a lack of reasonable skill and care by the courier.
  Enhanced compensation could be valid if for instance the courier offers to reimburse you the value of a new item if they lose or damage your used item.
  
  
  
   

[BankFodder]

Attached to this post is a model skeleton argument and also three judgements which were obtained at different County Court's and which each confirm the unenforceability of the courier insurance requirement.

 

The skeleton argument already refers to 1 of the cases. You will have to modify it to refer in a similar way to the second and third cases and also make sure that it refers to the defendant. In this case it was designed to refer to EVRi.

 

You will need to change the names of the defendant as required.

 

You will need to include copies of each case in your court bundle and make sure that are referenced in your skeleton and also in your court bundle index

 

If you win your case in court and we hope that you will come back to us with full details of your case name and number and court so that we can go ahead and order yet another transcript in order to add weight to our position that the insurance requirement is unfair and unenforceable.

parcel delivery insurance policy skeleton argument.pdf

Don't forget that you need to emphasise that the rights conferred by the Consumer Rights Act are "rights" and therefore do not need to be bought or paid for in any way. They cannot be separated from the contract but in fact what the courier companies are trying to do is that they are trying to give you an option of purchasing the delivery service without your rights and then for some extra money they are offering to provide your rights.

 

This is specifically prohibited by the Act – section 47

OT APPROVED, MTILLYER, H5QZ25Q7, TILLYER, PARCELHERO, 25.05.22 (KUT) - J v4.pdfOT APPROVED, PPENCHEV, 225MC852, PENCHEV, PARCEL2GO, 07.02.22 (CL) - J v4c.pdf

5037_OT APPROVED, SMIR, 27MC729, SMIRNOVS, PARCEL2GO, 24.11.22 (WATF) - J v4 (3).pdf

Edited July 21, 2023 by BankFodder
Skeleton argument updated July 2023

[BankFodder]

Don’t fall for rip-off delivery insurance.pdf