The courier industry and your lost or damaged property – some general principles

[BankFodder]

Whenever you enter into a contract whether it is with EVRI or some other courier or with any other company, you need to understand that the written contract is only part of the story.

Contracts between businesses and consumers are also subject to laws which have been passed by Parliament relating to the fairness of contractual terms.

These terms are implied into the contract and are known  unsurprisingly as "implied terms".

The terms of the contract which are actually contained in the contractual document are known as " express terms".

If a term of the contract is unfair then it is unenforceable although the rest of the contract stands.

 

EVRI and the other courier companies operate a number of unfair terms in their contracts. These companies know that the terms of unfair but because they attempt to force them on to their customers, they are effectively acting dishonestly.

Most customers don’t realise this and simply accept what they are told by the company and resign themselves to having lost out.

Here are the main areas which you should be aware of when dealing with any courier company which has lost or damaged your property.

 

Terms of the Contract Calculated to Exclude or Limit Liability
You will find that all of the courier companies including their terms and conditions a term which says that in the event of loss or damage of your property, their liability is limited to a certain amount of money – normally £20 or £25.
Apart from the fact that these terms are unfair – they are specifically prohibited by the Consumer Rights Act 2015.
Section 57 – of the Consumer Rights Act makes it clear that any term or contract which excludes or limits the liability of the company towards its customer is invalid.
It is amazing that these companies are allowed to continue putting these terms in.
It shows the laziness and/or the complicity of regulators or industry watchdogs in this unlawful behaviour which amounts to a scam of all customers.
 

Non-Compensation Items

You will find that the courier companies operate huge lists of items which they say either they will not carry or else if they do carry them then for which they will not offer any compensation in respect of loss or damage.

If the courier company loses or damages one of the items contained in that list then they will try to duck their responsibilities on the basis that the items were set out in the contract and you agreed to them.

In almost every case where the courier company attempts to avoid responsibility for lost or damaged items by relying on their non-compensation lists, they are acting unfairly.

The courier company is only entitled to rely on items in the list if somehow or other a characteristic of that item had increased the risk of loss or damage.

In terms of loss, it is impossible to imagine that an item was lost simply because it was fragile or volatile or perishable.

Therefore in every circumstance where the courier company has lost your item and then tries to avoid compensating you because the item was contained on one of their lists, this is unfair and unenforceable. You should not be fazed and you should continue your claim.

If a non-compensation or prohibited item contains glass or volatile liquids which in some way have contributed to the damage, then the courier company would probably be entitled to refuse compensation because you were warned.

However, although glass and volatile liquids are on the non-compensation/prohibited items lists, if the items sustains some other kind of damage then it would be unfair for the courier company to refuse to compensate you.

An example might be a television set. The screen is made of glass and if the screen is damaged then you probably wouldn’t be able to claim compensation.

On the other hand, if the damage was some scratches to the frame of the TV – nothing to do with the glass screen – then it would be unfair for the courier company to decline to compensate you because the TV set contains glass.

An example where EVRI attempted to rely on their prohibited items list was where they lost a bottle of expensive perfume. EVRI attempted to refuse compensation on the basis that the perfume contained alcohol which was prohibited.

Needless to say, we eventually forced them to pay out.

 

No Insurance

EVRI and the other courier companies routinely offer some kind of “insurance”. Please do notice that Evri parcel delivery company avoid using the word "insurance".
There are reasons for this which we are currently investigating so stand by for some important revelations later on in 2023.
A standard reason for declining to reimburse customers for lost or damaged items is that the customer did not choose to purchase the "insurance".

However, the "insurance" is a secondary contract under section 72 of the Consumer Rights Act which specifically prohibits the use of secondary contracts whose aim is to exclude or limit liability under the consumer rights act That. The requirement that customers take out "insurance" is also unfair. When you enter into a contract as a consumer, you enjoy various rights including that the task that you have paid for will be carried out satisfactorily. You do not have to pay anything extra other than the agreed contract price for the contracted task to be carried out satisfactorily.
 

When the courier companies attempt to sell you "insurance" what they are doing is asking you to pay extra money in order to have rights which you already enjoy under consumer legislation.

Here is a link to a list of reasons why the so-called “insurance” requirement is unfair.

https://www.consumeractiongroup.co.uk/topic/437529-the-courier-industry-insurance-requirements-are-unenforceable-because/

If EVRI decline to reimburse you on the basis that you failed to buy their insurance policy then here are some documents which will help you to get your money back.

We will help you, of course but if you do end up going to court then we would be grateful if you would let us know what happens and also help us to get a copy of the judgement if you win.

https://www.consumeractiongroup.co.uk/topic/437529-the-courier-industry-insurance-requirements-are-unenforceable-because/#comment-5175286

 

Third Party Contract

Some people book their deliveries through a third party  broker such as Parcel2Go, ParcelHero or Packlink.

There are others.

These third-party brokers are actually price comparison sites. If you shop through eBay then it is very likely that your delivery will be arranged through Packlink but the appointed courier will be EVRI.

When EVRI loses your parcel and you try to claim from them for their breach of contract, they will always say that you don’t have any contract with them and that your contract is with the parcel broker – Packlink.

This is quite true. Your contract is with Packlink and you could certainly sue them or any of the other parcel brokers. The only problem with Packlink is that they are domiciled in Spain and suing somebody in Spain from England is extremely difficult.

No surprises that Packlink a few years ago were actually domiciled in Britain that then they move themselves completely to Spain.

The cynics amongst us might imagine that this was to try and make it more difficult for people to get reimbursement.

Normally speaking you would not be allowed to sue EVRI or any other company with him you did not have a direct contract.

However, there is an act of Parliament call the Contracts (Rights of Third Parties) Act 1999 which gives you all the rights of a directly contracting party if you are a named beneficiary or clearly intended to be a beneficiary of the contract.

If you have a look at the H ermes/EVRI threads on this sub- forum you will see that this Act is often referred to.  Here is an interesting thread 

 

If EVRI or any other company tries to shirk their responsibilities on the basis that you should sue your parcel broker, then don’t be fazed. You can sue the courier directly.

Where the parcel broker is domiciled in England such as ParcelHero or Parcel2Go, then there is no issue, you can sue the parcel broker directly or the courier company directly – you have a choice.

The problem of third party rights really only occurs with Packlink as they are domiciled in Spain

 

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Update first of August 2023:

We now have two judgements where the judges have agreed that customers are entitled to sue the delivery agent instead of the broker on the basis of their third-party rights.
We will have transcripts available for these judgements soon so watch this space.
Meanwhile, one of these decisions was a full judgement in a trial of the issue.
The second of these decisions was an application to dismiss a claim before trial by Tufnell's – a delivery company – which argued that the sender of the parcel had no third-party rights and that they had to have the broker directly. In that case, the judge dismissed the striker application and allow the matter to go to trial. The judge indicated that apparently there have been several third-party rights cases – and in each one, the claimant had been allowed to proceed.

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When Is a Courier Company Allowed to Refuse Reimbursement

When you enter into a contract with someone, they are entitled to understand what kind of risk or duty they are taking on.

When you enter into a courier contract you will be asked to declare the value of the item that you are sending.

You will only be entitled to reimbursement of your declared value. If you try to undervalue the item for some reason or other then if the item is lost or damaged then your declared undervalue will be the maximum that you can claim.

When you enter all your details onto the courier’s website, you must declare the contents of your parcel. If you do not or if you provide a false description then you will be unlikely to be able to claim for loss or damage.

If your item appears on the prohibited or non-compensation list then if the item is damaged in a way which can be said to be linked to a fragile characteristic of the item – glass, volatile liquids – et cetera – then it is unlikely that you would be able to claim for the damage.

 

Items Which Are Apparently Damaged and Then Disposed of by the Courier Company

There are often reports that a company has claimed that the item has been damaged beyond repair and therefore has been disposed of.

There is no contractual term in the courier contract which permits this and even if there was, it would be unfair.

The item which you have put into the courier’s position remains your property and they are not entitled to destroy it without letting you know.

If you have been informed that your item was damaged and therefore disposed of then clearly that means that the courier company was fully aware of who the item belonged to.

If you receive a message which says that your item has been damaged and then disposed of then you should immediately demand photographs of the damaged items. (To our knowledge, no courier customer has ever managed to receive photographs or other evidence that their property has been damaged.)

If you have been told that your item has been disposed of, then not only do you have a claim for reimbursement of its value but also you have a potential claim for additional compensation for “trespass” to your property. This kind of trespass is known as "Conversion". It is provided for in the Torts (Interference with Goods) Act 1977.
The ultimate sign of ownership of goods is the right to destroy them. If the your parcel delivery company tells you that they have destroyed your goods and if you have not given permission, then effectively the parcel delivery company has assumed ownership of the goods. They have Converted yyour ownership into their ownership. This is a wrongdoing (tort). It is a trespass to goods and is known in law as "Conversion".

Our view is that where a courier company informs you that an item has been damaged and therefore has been disposed of, that probably means that your property has very likely been stolen.

As a final note, if you are suing for Conversion then you would not be able to sue the parcel broker. You would have to sue the courier company as it is they who have dealt directly with your property.