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    • Claiming For A Breach Of Contract Where You Are Not A Direct Contracting Partner The contract is private to the contracting parties – “Privity” The general rule is that only the direct parties to a contract are allowed to claim if there is a breach. This is a very old rule and it is called “privity of contract” which means that a contract is private to the contracting partners. “Privity”can cause injustice This has caused some difficulties and even some injustice where a third party expecting to benefit from the contract might be expecting to receive something, if one of the parties to the main contract doesn’t fulfil their side of the bargain, you, the third party beneficiary can’t do anything about it - and the contracting party who did keep their promise is the only person who can sue and maybe they simply don’t want to. This could be even more unjust if you are the third party who funded the entire arrangement between the parcel broker and the delivery agent. The parcel was lost. Both the parcel broker and the delivery agent are not out of pocket – only you are out of pocket– but under the “Privity of Contract” rule you are not allowed to make a claim against the delivery company which lost or damaged your parcel. The Law Commission Report on Privity Of Contract And Third Party Rights In 1996 there was a report from the Law commission which recommended that in some circumstances third parties should be able to sue under contract even though they were part of the contract. In particular, the Law commission highlighted this injustice:   [The Person Who Has Suffered the Loss Cannot Sue, While the Person Who Has Suffered No Loss Can Sue]: In a standard situation, the third-party [privity] rule produces the perverse, and unjust, result that the person who has suffered the loss … cannot sue, while the person who has suffered no loss can sue.   As a result, Parliament passed a law called the Contracts (Rights of Third Parties) Act 1999 This gives a third party in some circumstances the right to sue for a breach of contract even though they were not a direct contracting party. As a third party, are replacing one of the main parties When the third party uses this third party right, then they have to sue as if they were one of the direct parties to the contract and this means that they are bound by the same terms and conditions of that contract. This means that if it was a consumer contract then they can sue as the consumer with consumer rights. If it was a commercial contract, for instance between a broker and a delivery company, then you have to rely on your commercial rights. Most parcel delivery brokers are in the UK so you can sue the broker directly and this is always the best thing to do. However, there are one or two which are not in the UK. They are outside the jurisdiction of the UK courts and so if you arrange your parcel delivery through a one of those brokers and if your parcel is lost or damaged and if they refuse to reimburse you, suing the broker can be a difficult business and probably impossible. The only thing you can do is to sue the delivery company which lost the parcel but as you didn’t contract directly with them, you will have to rely on your “third party rights”. What the delivery company will say If the delivery company tries to defend the claim, they will probably say that although they did lose the parcel, you don’t have a right to sue them. They will say that you must sue the parcel broker because you made your contract directly with them – but of course we know that that is impossible because your parcel broker isn’t in the UK. You will have to state in your claim form and also explain to the judge that you are entitled under the 1999 Act because it was clear to the broker and to the delivery company that the delivery contract was made specifically for your benefit as the sender of the parcel and also for the benefit of the addressee – who is also a third party – and that it was even you who paid for the delivery anyway. What rights will you use? In a contract where you organised with Packlink, for example, to send a parcel using Evri, Packlink are based in Spain, you would have to sue Evri using the same commercial rights as enjoyed by Packlink. So in a commercial contract instead of relying on the Consumer Rights Act 2015, you would rely on the Supply of Goods and Services Act 1982 which also requires that a company selling a service must exercise reasonable care and skill and if they don’t then they are in breach. Also, in a commercial contract you would rely on the unfair terms provisions in the Unfair Contract Terms Act 1977 and which includes as an unfair term any attempt to restrict or limit liability without any good reason. If you are using your third party rights to sue on a consumer contract then you would be able to rely on the Consumer Rights Act 2015. Making a small claim as a third party is pretty straightforward The the process for bring a small claim as an entitled third-party is the same as any other small claim and pretty straightforward. The arguments are slightly different – but that’s all             Some examples of people who might be excluded by the “Privity” rule but are saved by their third party rights ·        Your friend takes you on holiday. They organise it and pay for it. Your friend’s holiday is great but your room is damp and rat infested. Your friend doesn’t want to claim against the holiday company. You took time off work for this holiday which you won’t get back but you didn’t have a contract with the holiday company.             You would sue the holiday company as third party consumer and rely on your consumer rights.   ·       Your friend uses a parcel broker based abroad to send you a mobile phone with £500. And the parcel arrives, it contains shoes. Your friend has moved to Australia permanently.           You don’t have a contract with the parcel broker so you would sue them as a third party to a consumer contract and                 rely on your consumer rights   ·        You get taken out for an expensive meal. Your host the table and pays for the meal but you get food poisoning. Your host had a great time and hasn’t actually lost anything.              They have no loss to claim but you don’t have a contract with the restaurant.You would sue as a third party to a                         consumer contract and rely on your consumer rights.   ·        You sell a mobile telephone on eBay and send it to your purchaser using an overseas parcel broker to organise the delivery through a UK delivery company. When the parcel arrives the purchaser finds that it contains some books.                 You sue the parcel delivery company as a third party to a commercial contract and rely on your commercial rights  
    • new subheading under paragraph 25 – The defendant is fully aware of third party beneficiaries new paragraph 26 Any denial by the defendant that they are unaware of the existence of third party beneficiaries to their contract with Packlink would be quite untrue. The defendant routinely sends out notifications to parcel recipients informing them the parcel which they are carrying on behalf of the broker is about to be delivered. Please find examples at – bundle X X X, X X X 26. 1) In the absence of any explanation the defendant’s denial should be disregarded.  but in any event,   If you have a look at the pinned thread at the top of this sub- forum relating to third-party rights, you will find several examples of notifications which have been sent by EVRi to the recipients of parcels warning them that their parcel which is being carried on behalf of QVC, Packlink – et cetera is due to be delivered. I suggest that you use a couple of these as examples of how EVRi is completely aware that there are third-party beneficiaries involved. If EVRi tried to say – "yes, we knew that there was a recipient that we had no idea that there was a sender…" Well, could they really be that stupid? I suggest you incorporate that, make the tweaks which have been suggested by @jk2054 and that's it. That would probably be the final version. You've worked hard on it – but hopefully the constant repetition will mean that you are absolutely fluent if it actually goes to court. EVRi are watching this of course and I don't really expect they are looking forward to having a judgement on this against them so I can imagine that they might reach out to you before the trial and make an offer. Have you paid the hearing fee yet? I don't think you have. I can imagine that they are waiting to see if you pay the hearing fee so they know that you are serious. Of course is not guaranteed but I would expect that they will try to prevent this going to trial. You should hold out for every penny. And if they want to make an offer to you under conditions of confidentiality then you should refuse. Confidentiality is not part of the claim. That something extra. If they try to impose a condition of confidentiality then you should tell them that this would cost them extra. I would say thousand pounds is probably cheap for the trouble that a judgement against them will cause them. Keep us updated of any approaches by EVRi – either on the forum – or by email if you prefer to admin email address. Let's see your final version
    • Hello I’m also going through the same at the moment for £300. Icon went quiet for a month or so but just received another text this morning to say “Notice of likely CCJ/Enforcement due to non-payment”. I’m still ignoring as per all of the threads on this but every time I get a text I still like to have a read up just to check advice hasn’t changed so good to read this thread! Thanks
    • They have now closed the account.
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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

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      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

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Nongki

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Yep, They charge for an N244 which is what gets the case delayed. Then if you win the judge awards this to you

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£275 is for any application that requires a hearing I wouldn't of thought it required a hearing to change a date.

We could do with some help from you.

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Good afternoon.

 The Court will require a formal application and the relevant fee to   adjourn the hearing listed on the 3rd January 2024.

 The form required is a form N244, and the relevant fee of £275.00.

 You can consider contacting the other party to see if they would be agreeable to  adjourning the hearing.  If so, the parties could file a consent application, and  draw up a draft Order.  The application again would be a form N244 and the relevant fee for a consent Order is £108.00.

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Go for the second option then

We could do with some help from you.

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  • 2 weeks later...

you mean their witness statement?

 

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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nothing to do with 'documents' 

its their witness statement with their exhibits they intend to rely upon mentioned in their WS.

trick is NOT to file yours till you have theirs, they cant complain about it in court because they were obv late too.

the judge wont swallow any of their play acting esp as you must always point out in your ws your are a litigant in person. even though its obv.

DWF and the like have pulled this stunt for years, its why its so very very important you always tell them (in writing) not to use email but posted letters only early on .

moneyclaim are not out to get anyone, they simply action the claim raised by the claimant through their sols DWF

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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  • 1 month later...

please update and post on your OWN THREAD @Calmcoolcollected21 post now moved

this one is for @Nongki

same goes for you @Maus  post now moved

you've not updated it for a YEAR despite posting everywhere else....

dx

 

 

  • Like 1

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Share on other sites

  • 2 weeks later...

Apologies, just got back from a month out of the country yesterday. Tried replying while out there but firewall prevented me, there was a link which was to get around the firewall but that didn't seem to work

By way of update, at my request date was adjourned until 1st March. So will hoping to get some assistance in putting my evidence together at some stage please.

Strangely, I returned to a letter from DWF saying that the case had been moved to 1st March, 10:00am at Liverpool Court. Double checked my paperwork and it is 1st March, 10:00am, but Newcastle, certainly not in Liverpool.

They went on to say that the court had expressed a desire that we come to an agreement without the need for a court case, and very kindly (NOT) had offered me the chance to pay a reduced amount of £1000 before end of January. Surprisingly I wont be taking them up on this.

Should I reply to them to advise on both the above, or just ignore. The court location could be a typo of course, or could mean they turn up at the wrong court

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  • 4 weeks later...

I have today received a further letter from DWF, once again stating that the hearing is taking place in Liverpool. I have double checked this with Newcastle County Court and it is definitely taking place in Newcastle

This time they have made a final offer and are willing to accept 750.00, which I will obviously decline

Back on post number 12 the offer was made to assist in “sharpen” my defence and I guess I am at that stage now so calling out for any assistance you can offer please

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On 03/02/2023 at 11:45, Andyorch said:

Await allocation now if they wish to proceed and if so, we can sharpen your defence into an effective witness statement.

Andy.

you've already filed a defence as stated.

ws time. 14 days prior to hearing?

what date is your hearing?

 

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Bump your topic say middle of next week as a further reminder.

 

Andy

We could do with some help from you.

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go no.

never enter into pointless letter tennis

dx

 

 

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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38 minutes ago, Nongki said:

Thanks Andy, much appreciated

Is it advisable to reply to them declining the offer ?

You can in case they raise it and state you didn't respond it could impact costs should you lose as they would state you failed to mediate.

Alternatively we can raise it in your statement ?

Your choice

.

We could do with some help from you.

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Cheers Andy

Just along the lines of ......  thank you for the offer but, as I am innocent of your accusations, I will kindly decline

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Yes...perhaps add a little more sarcasm :-D

In view of your generous offer of discount to the alleged amount claimed surely that would add suspicion to a court that in fact the amount initially claimed could be questionable ? 

leave it to you.:lol:

  • Thanks 1

We could do with some help from you.

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Dear Sirs

 

Whilst I appreciate that all parties would prefer to avoid a court hearing I hereby decline the Final Offer.

 

I recently paid a fee of £275 to have the hearing adjourned and moved to the new date, hardly the actions of someone who feels they are liable for the costs alleged by your client.

 

Likewise, the generous discount offered to the alleged amount claimed must surely add suspicion that the said figure is, at the very least, questionable.

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Too waffly

Drop the Dear Sirs

Re Court claim ref xxxxxxx and you recent letter and offer of discount to amount claimed.

Thank you for your recent letter dated xx xxx 2024,  whilst it is appreciated that both parties would rather avoid this claim proceeding to the forth coming hearing and your attempt to mediate and expediate matters.

However I must decline the generous discount offered to the alleged amount claimed which surely the court will consider questionable.

Having already paid out for an application to have the hearing adjourned and moved to the new date at considerable cost, in view of my defence in this matter, It is my intention to claim further costs and disclose your offer to the court.

Signed.

 

 

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

Have we helped you ...?         Please Donate button to the Consumer Action Group - The National Consumer Service

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