Court Claim Against EVRi - Damaged and unusable. **SETTLED BEFORE HEARING**

[Tubcat]

Hi

 

After reading the many invaluable accounts on CAG, I think I have case to bring against Hermes and would like some advice on this please.

 

I sold two light fittings to the same buyer on eBay and paid for postage (both lights together) using Hermes via Packlink. The value of both lights was £250 and I also paid for enhanced compensation. I bought proper packaging material and a suitably sized box from a packaging retailer. I packaged the items extremely well and took photos of the packaged items.

 

Annoyingly, several weeks later the buyer reported the lights as damaged and requested a full refund via eBay (they were just within the refund window). I opened a claim with Packlink uploading necessary photos of the packaging and lights before and after the damage. Packlink completed their initial investigation stating that;

 

Quote

“After completing the investigation with the carrier the shipment has been confirmed as damaged. I am writing to let you know that the dossier has been transferred to the Claims department for the final evaluation.”

 

However, their claims department incorrectly asserted that I had used Packing Paper and rejected the claim due to insufficient packaging. I have tried to get them to reconsider based upon their incorrect identification of the packaging material – it was Shredded Cardboard much thicker than Packing Paper. But so far they have not come back to me.

 

I’ve tried to contact Hermes but can’t get beyond their automated bot with my reference number, as it just tells me to take it up with Packlink.

 

Do you feel I have a case to start a Money Claim against Hermes based upon the following points;

 

1. The damage inflicted upon the lights (they were very badly bent and misshaped), suggests that they were subjected to manhandling far in excess of that you would expect in transit.
2. And given the fact that Packlink stated that “the carrier has confirmed that the shipment was damaged”.

 

Any advice much appreciated. If I do start a claim, I’ll update this post with all the details.

 

Thanks

[BankFodder]

Presumably you have photographs of the damaged lamps.

Have you supplied these to Hermes? Have you begun a formal complaint against Hermes?

If you haven't done then begin that now and in the meantime read around all the stories on these sub- forums so that you understand the way it goes.

After about 10 days, if you have been knocked back or if you haven't heard anything then we will help you send them a letter of claim.

In addition to reading up on the stories here, please draft a letter of claim and post it here.

[Tubcat]

Yep, I've got photos of the damaged lights and all the packaging. Can upload photos here if that would be helpful?

 

Haven't started formal proceedings yet, just wanted some advice on the strength of my case. Will kick things off this week if you think I have a case?

 

[BankFodder]

We don't need to see the photos – but you do need to do the reading. Once you have done all the reading of the stories on the sub- forum then you will understand the strength of your case.

This forum is about self empowerment – although we will guide you.

Begin your formal complaint and then start doing your reading.

[Tubcat]

Hi

 

I've been doing my reading around on this forum and have issued Hermes with a Letter of Claim. 

 

They have responded by directing me to Packlink and denying that Hermes is responsible.

 

My letter of Claim gave Hermes 14 days before I commence legal proceedings. I've drafted the Claim Details and chronology which I'll post below. If someone can offer any feedback, it would be much appreciated.

 

Thanks

 

Hi
Sorry for not responding sooner. I’ve only just had to reimburse the eBay buyer for the items they purchased which were damaged and crushed during the Hermes delivery.

I’ve been reading around the different Hermes/Packlink topics on the forum as well as reading the official government guidance and I think this is the course of action I have to take;

1. Send formal Letter of Claim to Hermes (uploaded below) informing them of the damage to my shipment, my financial loss and giving them 14 days to reimburse me before I take action in the County Court.

2. Start the Money Claim online. I’m a bit confused which of the two system I should use – can you advise?
 

MCOL - Money Claim Online - Welcome

WWW.MONEYCLAIM.GOV.UK

Make a court claim for money - GOV.UK

WWW.GOV.UK

---

How to take legal action if someone owes you money (small claims court), how much it costs, what happens next. Includes information...

3. As part of completing the online claim I will submit a Particulars of Claim detailing the facts of the case and timeline of events (uploaded below).

4. Hermes will probably send a standard letter disputing my claim at which point I will be sent an additional questionnaire by the Court and asked to pay extra court fees. I should both fill out the questionnaire and pay the fees as well as agreeing to mediation if applicable.

5. Should it go to mediation then I’ll follow the advice offered within this forum.
Any pointers and advice much appreciated. I’ll be posting the Letter of Claim to Hermes in the next day or two pending any feedback.

 

 

 

Quote

Claim Details with Chronology

 

 

 

The claimant used the defendants courier service to deliver a parcel containing two Laura Ashley ceiling lights value £250 to an address in Surrey. The claimant took out insurance against damage or loss caused by the defendant's own breach of contract or negligence. When the parcel arrived at the destination the contents were so badly crushed and damaged that the recipient requested a refund. This was caused by the defendant’s own breach of contract or negligence. The claimant brings this action under the Contracts (Rights of Third Parties) Act 1999. Claimant seeks the value of the lights £250 plus delivery and insurance costs £9.99 under the County Courts act 1984

 

The following is a detailed chronology of the events surrounding this claim.

 

26/09/2021

The claimant sold two Laura Ashley ceiling lights in excellent condition on eBay. The buyer paid £250 for the lights plus £9.99 postage.

 

27/09/2021

The claimant purchased suitable heavy-duty cardboard box and shock absorbent packaging material from a specialist parcel and packing retailer.

The claimant packaged up the items with considerable care and attention. The packaging consisted of a sturdy new cardboard box securely sealed and marked as fragile. The majority of the packaging used was good quality shock absorbent shredded cardboard. In addition, foam, polystyrene filler and bubble wrap was also used to fill any voids and provide additional strength and shock absorbance. In all, the packaging was more than sufficient to withstand the normal bumps and vibration expected during transit. It more than conformed to the packaging guidance on Hermes own website that states, “Your parcel needs to be wrapped well enough to stay intact should it fall off a conveyor belt (which can be up to 1.2m high).” -  https://www.myhermes.co.uk/help-and-support/how-to-wrap-a-parcel

 

See uploaded photo evidence illustrating;

 - The light fittings in excellent condition prior to postage.

 - The comprehensive packaging of the items using the suitable packaging materials mentioned above.

 

 

 

28/09/2021

The claimant purchased a Hermes delivery Label and paid for additional insurance for the protection against loss or damage for the shipment.

The Hermes Tracking ID is H0067A0030190134.

 

See uploaded photo evidence illustrating;

 - The purchased Hermes postage label with additional insurance cover

 

29/09/2021

Shipment started its short journey from Brighton, East Sussex to Surrey.

 

 

27/10/2021

After receiving the shipment from Hermes, the buyer of the lights initiates an eBay returns request citing that the lights where so badly damaged that they are unusable. The buyer requests a full refund including postage costs.

 

See uploaded photo evidence illustrating;

 - The badly crushed and damaged metal light fittings upon delivery by Hermes

 

 

28/10/2021

After being unable to discuss the matter with Hermes customer service instead the claimant open a damage claim with Packlink whom the Hermes postage label was purchased from.

 

01/11/2021

Packlink update the damage claim stating "After completing the investigation with the carrier the shipment has been confirmed as damaged"

 

See uploaded photo evidence illustrating;

 - Packlink statement that their investigation with the carrier confirmed the shipment was damaged.

 

03/11/2021

Packlink incorrectly assert that packing paper was used for the shipment and dismissed the claim. The claimant immediately responded pointing out that no packing paper had been used and that the materials used were good quality shock absorbent shredded cardboard, foam, polystyrene filler and bubble wrap sealed in a new sturdy box. However, Packlink ignored these responses and offered no means for appeal.

 

23/11/2021

eBay completes the returns process by refunding the £250 plus £9.99 postage to the buyer having deducts the funds from my bank account.

 

See uploaded evidence illustrating;

 - The Claimants eBay Financial Statement for November 2021 showing total claims of £259.99 for the refund of the two lights.

 

29/11/2021

As Packlink are not based in the UK and are not under the jurisdiction of English County Courts, the claimants only hope of getting compensation for the financial loss incurred due to a breach of duty and care of services (under the Consumer Rights Act 2015), is to issue Hermes with a Letter of Claim with the threat to start legal action in 14 days if not financially reimbursed.

The claimant is being this action as a beneficial third-party under the Contracts (Rights of Third Parties) Act 1999

 

 

03/12/2021

 

Hermes acknowledges the claimant’s letter and provide details of the claim case number and how to respond.

 

07/12/2021

 

The claimant responds to Hermes reiterating the circumstances and that unless they work to resolve the matter the claimant will have no choice to claim against Hermes under the Contracts (Rights of Third Parties) Act 1999 in the County Courts.

 

08/12/2021

 

Unfortunately, Hermes responds by stating that they are unable to assist further with the matter and they update the status of this internal claim as solved.

 

See uploaded evidence illustrating;

-          Hermes complaint communications between the claimant and Hermes.

 

 

[BankFodder]

I've crossed out a passage which is irrelevant and I have added an important statement in red.

It looks extremely comprehensive – and well done on having all the photographs.

[Tubcat]

Excellent, thanks for you speedy response.

 

One question I have regarding starting the Money Claim. Do I use the Money Claim Online website or the new online claim service at Gov.uk? It seems like the newer service offers a better experience for filing the details of claim. 

[BankFodder]

I don't know about a new one. Please post a link

[Tubcat]

This one ...

Make a court claim for money - GOV.UK

WWW.GOV.UK

---

How to take legal action if someone owes you money (small claims court), how much it costs, what happens next. Includes information from withdrawn guidance EX303, EX304, EX306, EX321, EX325 and EX350.

 

[BankFodder]

Actually the direct link to starting a claim on the service is

/img/lib/opengraph-image.png?0.26.0

Try the new online service - Money Claims

WWW.MONEYCLAIMS.SERVICE.GOV.UK

 

I see that it is in beta so it is still being trialled.

By means go ahead and try it out. I expect that it all leads to the same place in the end but maybe you can let us know what you think about it.

It certainly looks more friendly

[honeybee13]

Thread reopened.

 

HB

[Tubcat]

Hi

 

Apologies for not updating this thread recently, my claim is still ongoing although nothing much has happened yet. 

 

After receiving the expected defendants response from EVRi disputing the claim, they had agreed to mediation. After waiting to hear a date for mediation, EVRi must have then decided against it as I received notification that - "Mediation did not resolve the claim" and the claim will go to a hearing.

 

I was sent a Judgement Order requesting me to submit my witness statement to the court and 'the other side', including any other witness statements and accompanying documents.

 

I don't want to deviate from the evidence I've already submitted so I was going to just send the court and EVRi a copy of my claim form as my witness statement. I will also include photos and other evidence along with a witness statement from my partner. Does this all sound ok?

 

Many thanks for your continued support and advice   

[dx100uk]

No you fluff out your claim points and Inc exhibits

[BankFodder]

I suggest that you don't send anything until we have looked at it and agreed it with you. We may have some useful information to contribute .

What is the date for submission of your court bundle?

 

Have you received their court bundle?

[BankFodder]

I see that you haven't uploaded a copy of the defence .

I think we need to see this please .

Please could you upload a copy of the defence in PDF format. Redact it for your own contact details of course

 

 

[Tubcat]

Witness Statement.pdf

 

See my uploaded redacted witness statement. This is a version of my submitted claim form formatted based upon the following criteria specified in the Judgement Order;

 

 

Quote

 

A witness statement must

•   have the court case number at the top

•   start with the witness’ name and address

•   it must contain numbered paragraphs and should be typed and

  double spaced. If not typed, it must be written clearly in block

  capitals or printed.

•   finish with the words “I believe the facts set out above to be true.

  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”, the date of the statement and the person’s signature.

 

•  

 

Sorry I need to spend a bit of time redacting the defence. I'll do it for tomorrow evening.

[BankFodder]

Yes, we definitely need to see the defence.

 

I'm afraid that you're witness statement needs a lot of work and also it could probably be shorter. I would normally suggest not more than two sides .

You haven't told us the date for submission and you haven't told us if you have received their bundle

 

 

[Tubcat]

The date for submission is the 24th April but I'll try to submit it this week if possible. I haven't received their bundle yet.

[BankFodder]

24 is a Sunday. Is it really then?

 

Don't send it yet.

 

to follow up, it's important that we see your witness statement and that we make our suggestions in respect of it.

 

Of course there is nothing to stop you going it alone, but your interest will be best served if we can see your defence and then help you to frame an appropriate witness statement.

 

Also, it will be best to leave it to the last moment in case you receive their bundle in time and you can see their witness statement which will give you clues about how to frame your own one .

 

Are you required to file these documents by post or by email?

 

 

 

[Tubcat]

13 hours ago, BankFodder said:

Yes, we definitely need to see the defence.

 

I'm afraid that you're witness statement needs a lot of work and also it could probably be shorter. I would normally suggest not more than two sides .

You haven't told us the date for submission and you haven't told us if you have received their bundle

 

 

 

Attached is a redacted copy of EVRi defence.

 

I'm happy to edit my witness statement (previously uploaded) if you feel it should be shorter? In addition to my witness statement I was also going to include a witness statement from my partner corroborating my account.

 

 

EVRi Submitted Defence.pdf

[BankFodder]

I don't think there is any need to have corroborative evidence from your partner- although what is it that they might say if they do make a statement ?

 

As far as I can see, the defence is predicated simply on the fact that you don't have third party rights to sue them.

 

However, your witness statement has brought up other issues which aren't relevant according to their defence .

Strictly speaking, they should not be entitled to introduce any issues once they have filed their defence. But of course it will be helpful to see what they are going in their witness statement if we can get it before you file yours .

 

You have paid an insurance even though it is unenforceable. But the important thing is that they have accepted the insurance .

 

Only other issue I can see is that they might say that your lights were on the prohibited items list.

 

In What way were they damaged please?

L

You may already have told us but maybe you could tell us about it again .

 

Of course, by accepting an insurance specifically for this lighting, they effectively invalidate the effect of any prohibited items.

At the moment this is the only new issue I can see being raised which might disrupt the process .

 

But the fact that they sold you insurance effectively moves that basis of any defence they might produce later.

 

 

 

 

 

 

 

[BankFodder]

Also, you haven't confirmed that the date is indeed Sunday the 24th .

Also, you haven't addressed my question as to how must this material be filed. By post or by email?

 

[Tubcat]

Sorry my mistake, material needs to be sent before 4pm 26th April.

The instructions say that the material needs to be sent to the court using the address given. So I'll post two sets of material to the court and EVRi. 
 

[BankFodder]

Thank you. That makes more sense.

 

These documents are generally speaking submitted on a Tuesday.

So I was surprised.

 

In that case, let's wait until the weekend of the 23rd and 24th to sort it out. I will have access to a better computer as well .

Maybe you can give a shout out to me on this thread on the Friday in case it slips my mind.

 

In the meantime, you should certainly assemble your documents following broadly the advice that we have given in the court bundle link including index page, etc.

 

 

[BankFodder]

As a matter of interest, when did you receive the court order? Informing you about the court bundle and the date for filing it