Another stolen Hermes item - Razer laptop

[sussexbloke77]

So I have my date .. 24th May.  Right at the top it says "Preliminary hearing will take place to determine whether there is any contractual relationship between the parties and/or if the claim should be struck out"

 

...so everything hinges on the rights of 3rd parties act being upheld at the hearing? 

 

Thanks!

[BankFodder]

Well have a look at the contract (rights of third parties) act so that you understand some of the principles.

Broadly speaking you enjoy all the rights of a direct contracting party if you are either a named beneficiary of the contract or you are part of a class of person who might reasonably be expected to be a beneficiary of the contract.
In this case your position is that you are both.
You are a named beneficiary in that they are clear that you have used Packlink in order to deliver your property to a purchaser.
It is you who have commissioned the contract – you have brought into existence by organising the delivery.
Clearly you have done this for your own benefit and in any event, the sender of any parcel who arranges for a parcel to be delivered is clearly intending to benefit from the delivery contract.
It would be extraordinary if Hermes try to argue that there was no benefit to you or that they could not foresee any benefit to you and that in some way you are simply sacrificing yourself by paying money for a parcel to be delivered simply out of the goodness of your own heart.
Also you should make the point that in any event Packlink is domiciled in Spain and that if Hermes were allowed to escape liability on this basis, it would effectively be an unfair term of their contract with you and therefore unenforceable under the consumer rights act.

Hermes must be nuts to go to court on this because if they lose – as they surely will, then the game is up for them.

When you get the judgement in your favour we will be asking you to get a transcript of the judgement and we will pay for it and we will then use the judgement in support of other claims against Hermes and the other players in the courier industry who tried to rely on the same get-out excuse.

These people are so stupid that they are blinded by their own short term greed.
Who is the Hermes person who is signing off all these documents?

[sussexbloke77]

Thank you!  You mean the Hermes legal rep noted on the documents I have?  Also baffled that they would take this route given how clear cut it seems to be - which is why I would like to be prepared.  Am I allowed to ask them ahead of time on what planet they think this doesn't apply?  Or better to wait for my day?

[BankFodder]

Just wait for your Big Day.
Maybe it is still part of the bluff game and they will come to their senses and make you an offer expecting you to back down and accept a compromise. However, stand your ground.
If you get a judgement on this then frankly it will be a brilliant result for you and for everybody else.
Yes I was interested to know who is the person who signing off on these documents. Who is their legal person. Is it Chloe something or other?

[BankFodder]

What you could usefully do would be to send Hermes an SAR.

I would expect it to produce clear evidence that they knew that you were the sending party and that will put it beyond doubt that they were able to identify you as a beneficiary under the contract.

 

[sussexbloke77]

SAR is a great idea!  Yes it's Chloe H who was on the defence they submitted.

[BankFodder]

Chloe Higgs – our Chloe. Bless.

[sussexbloke77]

Higgs

[sussexbloke77]

..so it's my big day tomorrow - still no contact from EVRi - wish me luck!!

 

Also occurred to me that I have emails between EVRi themselves and I after I reported the issue to them initially as I knew they were the end courier.  They were happy to engage with me, doesn't this show that they recognized that I was the beneficiary at that stage?

 

Thanks!

 

[Badtimes123]

Best of luck!

[BankFodder]

Can you just remind us what is meant to be happening tomorrow

[sussexbloke77]

Preliminary hearing to determine whether there is a contractual relationship between parties - according to the hearing notice.

[BankFodder]

Thank you. Have you done your reading about the contracts (right of third parties)? act

[sussexbloke77]

..I have read the act yes, and all of your comments based on it.

 

This seems to be the crux:

 

Right of third party to enforce contractual term.

(1)Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

(a)the contract expressly provides that he may, or

(b)subject to subsection (2), the term purports to confer a benefit on him.

(2)Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

 

What is (2) driving at though?  I'm clearly qualified under 1b as previously discussed here.

 

thanks!

[BankFodder]

It means that it must be possible to recognise that you were an intended beneficiary of the contract .

 

Here you are either the person who sent the parcel in which case clearly they realise that the parcel is being sent on your behalf or you are the recipient of the parcel in which clearly the parcel is being sent for your benefit .

 

Either way, you are clearly intended to benefit from the contract and therefore you have third-party rights

 

 

[sussexbloke77]

Thank you ... makes (2) sound a bit redundant but whatever.

 

So key points:

- I'm a clear beneficiary and EVRi engaged me as such in the support email thread I have

- Therefore I have rights under 3rd party to engage EVRi directly

 

I think that's all they want to cover today.  I'll ask for transcript either way.

 

Wish me luck!

[BankFodder]

You won't be able to get a transcript. You have to apply through a transcription agency .

 

Let us know the result and also please send me the details of the case name and number and which court by direct message and I will order the transcript for you

 

[sussexbloke77]

will do

[sussexbloke77]

OK .. notes to follow, but the summary is:

• Judge interprets clause 2 as meaning that the EVRi/inpost contract may prevent me claiming as a 3rd party and as such EVRi are being asked to submit that contract in due course for review at a further hearing (they didn't show up of course)
• He thinks I should be pursuing inpost - I thought this wasn't possible

..if point one is correct it makes a bit of a mockery of the 3rd party legislation - but that's just my view.

 

I'll dm you the details as requested shortly.

 

Thanks!

 

[sussexbloke77]

Just to get something in writing for my clarity, and might be useful to others - the flow goes like this:

 

- Sell something on ebay, you arrange shipping using Packlink (Spain registered, hard to litigate against) - your contract is with them

- Packlink sub to inpost

- Inpost have an agreement (of what kind I do not know) to deliver parcels that enter via inpost

 

So in theory I could pursue either EVRi or Inpost (as a 3rd party) and if judge is correct there might be something in either contract to exclude me from exercising that right.

 

 

[BankFodder]

correct.

 

You need to see the contract. They had an opportunity to produce it and they have chosen not to. They are well resourced and well advised and they should realise the significance of the contract.

Frankly the judge was wrong to have given them a second chance to produce the contract. Without the evidence the judge had simply found in your favour and then it will be up to the other side to appeal if they wanted to.

(Don't tell the judge that he was wrong)

[sussexbloke77]

...I felt like the judge wasn't on my side perhaps

 

So if their contract with inpost, or inposts contract with packlink (if that's where this heads) protects them from 3rd party claims then I'm out of luck?  I dont really get the point of the clause which allows this to be honest, it's not even a loophole it's so obvious - any lawyer would immediately ensure this is in a contract to protect their interests surely.

 

I guess for the sake of £700 I can hope that EVRi might not want to share parts of their contract - not exactly good press to see them try to worm out of well intended protective legistlation like that. 

 

[sussexbloke77]

So .. interesting development.  Got the letter from court last week stating that EVRi need to show their contract w/inpost.   Just now I get an email from EVRi legal:

 

Dear sir,

 

By way of brief introduction I have taken over conduct of this matter.

 

I write with a view to settle.

 

Our defence issued to you is that when you sent the item you entered into a contract with the InPost and therefore we are not liable to you.

 

Further had you entered into a contract directly with us we do not cover for laptops and therefore this is a non-compensation item. In addition the maximum level we offer when a customer sends a parcel with us is £300.00.

 

Notwithstanding this we are willing to offer you £370.00 in full and final settlement of this matter and we also take this opportunity to apologise to you for the issues you have experienced.

 

If you would like to accept this offer please provide me with your account details and I will arrange payment.

 

Thoughts?  Mine are:

 

- Actually my contract is with packlink, but that's neither here nor there

- Packlink dont exclude laptop compensation, how am I to know that the end party doesn't like them - not my problem mate

 

..interestingly they don't mention the 3rd party thing, which was kind of the cornerstone of their defence.  I smell blood.

 

 

[BankFodder]

They definitely don't want to disclose the contract. That is for certain .

 

How much are you claiming? Does that offer meet your entire claim?

 

If it does then you are obliged to accept it.

 

However, the offer should include everything you have spent including court costs, reasonable cost of travel, etc. And interest

 

 

 

[sussexbloke77]

No. I'm owed £700 plus interest so obviously I'm not going to accept.  So I'll counter, full costs + interest using my points above - or something else I should add/not say?

 

Is it weird part of me wants them to say no and that they'll see me in court?