UPS lost MacBook sold on eBay for £639.99 - Taking UPS to small claims court @UPS_UK

[Falcon123]

I had sold a MacBook on eBay for £639.99 and sent it with UPS.

 

The label was bought via Packlink and no extras were paid for insurance. The tracking showed MacBook as delivered on UPS website however the buyer informed me that they did not receive it.

 

Long story short, after the investigation by the UPS, they could not locate it and automatically refunded me £60 as compensations. I did not agree to the level of compensation and made them aware of it at the time however they considered the case as closed on their end and i refunded the buyer in full. I believe they were careless with delivery as the driver must have possessed the item to be able to scan it and mark it as delivered.

 

I have been reading around on this forum and I am planning to go against the UPS to the small claims court under the Contracts (Rights of Third Parties) Act 1999 and base my claim on section 49 and 57 of the Consumer Rights Act 2015.

 

my plan is to first issue them with a claim letter giving them 14 days to reply and after that proceed with the MoneyClaim website online. Please do guide me if i seem to be missing anything.

 

Please note that the incident happened in early 2020 and i had full intention to go to court ,i retained the evidence since then however kept delaying it due to health issues.

 

I understand that there is a 6 year limit to bring forward the claim so this should be ok.

[BankFodder]

Okay, you seem to have done the reading and grasped the principles involved. That's a good start.

You're quite right about the six year limitation period so there is no difficulty here.

Please prepare your letter of claim and post it here so we can have a look before you send it off.

Don't imagine that they are going to settle simply on your letter of claim so also register onto the MoneyClaim County Court website and start preparing your claim there.

Post a draft of your particulars of claim here so we can have a look.
 

[Falcon123]

Thank you for your reply. I have attached the body of my letter of claim. Can you please have a look and let me know if it seems fine to you.

I put the value of my item as £649.99 which was the total of original transaction i charged to the buyer. (£639.99 + £10 for postage and packaging). 

Claim Letter - Body.pdf

[BankFodder]

The letter of claim is ok but rather over detailed in my view and I don't think that it needs the references to the particular sections of the consumer rights act at this point .

 

References to the rights of third parties Act is useful .

 

It should be headed "letter of claim*.

 

And at the end you shouldn't only be asking for a satisfactory response. You should be requiring that they give you full reimbursement within 14 days or else you will start your legal action. Blah blah blah.

 

If you decide to make amendments to the letter of claim then please post it here

 

 

[Falcon123]

Thank you for the advice. I have amended my letter of claim. This is just the main body of the letter so i will be adding the heading "Letter of Claim" and other formalities before printing and posting it.

Do you think if it's a good idea to let them know that i will be adding court fee etc to the total amount upon the claim going to next stage?

Claim Letter - Body (2).pdf

[BankFodder]

It doesn't matter whether you add that or not, it goes with the territory.

They don't care what you do but you might as well add it anyway

 

[Falcon123]

Thank you. Will be sending this letter tomorrow and then start the MoneyClaim draft.

[Falcon123]

Letter of claim delivered and signed by UPS on 07/03/2023. No response received.

I am now filing my MoneyClaims form and here is a proposed particulars of claim. Can you please have a look at it. Thank you

 

"The claimant used the defendant's parcel delivery service on 28/01/2020 to deliver a parcel inside the UK. Defendant’s reference number is XXXXXXXXXXXXXXXX. The parcel contained an Apple MacBook Pro valued at £649.99 - full details have been provided to the defendant.

The parcel has been lost by the defendant’s breach of contract and their negligence. The defendant only refunded £60 and the original delivery charge.

The claimant seeks to enforce contractual terms as a third party under Section 1(5) of Contracts (Rights of Third Parties) Act 1999 and be reimbursed for the remaining amount of £589.99 plus interest per section 69 County Courts act 1984 plus costs."

[Falcon123]

Defence (redacted).pdfI had issued the claim (particulars of claim attached in last post) and have received the defence from UPS now and attached it to this post. I need an opinion from the senior members of the forum on the section no. 4 of the defence.

The section no. 4 of the defence states that:

Quote

Further, the Defendant notes the Claimant’s seeks to enforce the terms of a contract pursuant
to the Contracts (Rights of Third Parties) Act 1999. The Claimant has not pleaded the
following in relation to such:
4.1 The parties to the agreement to ship the subject consignment;
4.2 The date of the agreement with the Third Party to ship the subject consignment;
4.3 The terms of the contract between the parties to the agreement;
4.4 Whether the agreement expressly provides that a third party may enforce the contract;
4.5 Whether a term of the contract purports to confer a benefit on the Claimant; and/or
4.6 Whether, on a proper construction of the contract the parties intended the term to be
enforceable.

 

My direct contract is with the Packlink as i bought label from them for the shipping. In this case i am making a claim against UPS as a third party and the main parties are Packlink and the UPS. I do not have access to the terms of the contract between Packlink and the UPS so does that mean i am unable to address the section 4.3, 4.4, 4.5 and 4.6 of the defence?

 

The Rights of Third Parties Act 1999 states that:

Quote

(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.

 

Any help will be appreciated. Many thanks
 

Edited April 29, 2023 by Falcon123

[BankFodder]

What they are saying is that you have not referred to the contract between packlink and UPS.

 

This is correct of course.

Right to the immediately and tell them that you see that in their defence they have referred frequently to the contract and that you would be grateful if they would supply you with a copy.

 

Tell them that if they refuse then you will definitely decline mediation. You will go to trial and they will be required to provide a copy of the contract as part of the court bundle before trial.

 

Furthermore, that you will draw the attention of the court to the fact that they refused to supply you with the contract before trial and even before mediation even though you ask them to do so, even though they have referred to the contract specifically in the defence and even though to fail to do so would effectively and potentially waste the time of the parties and of the court.

 

Do this straight away.

 

Post a copy of what you send here

 

Tell them also that if eventually they refuse to supply a copy and if they fail to include a copy in their court bundle that you will then invite the court to come to its own conclusions as to your position as a beneficially entitled third party

[Falcon123]

Please see my draft email below. I look forward to your response before I send this email to them.

 

Quote

 

Dear [REDACTED],

 

I see that in your defence (Section 4.1), you have stated that "The claimant has not pleaded the following in relation to such: The parties to the agreement to ship the subject consignment". I would like to inform you that i had identified Packlink and the UPS as parties in my letter of claim received by the UPS on 07/03/2023.

In your defence you have referred frequently to the contract between packlink and your client and I would be grateful if you can supply me with a copy of the contract between Packlink and the UPS . If you do not agree to provide a copy then I will be declining mediation. I will go to the trial and you will be required to provide a copy of the contract as part of the court bundle before trial.

Furthermore, I will draw the attention of the court to the fact that you refused to supply me with the contract before trial and even before mediation even though I asked you to do so, even though you referred to the contract specifically in the defence and even though to fail to do so would effectively and potentially waste the time of the parties and of the court. If you refuse to supply a copy and if you fail to include a copy in your court bundle then I will invite the court to come to its own conclusions as to my position as a beneficially entitled third party.

 

Kind regards,

[REDACTED]

 

 

[BankFodder]

I have made one edit in bold type.

 

If you are happy with this then go ahead and send it.

 

I don't think they will like the letter very much.

Oh dear !

[Falcon123]

Posted it to them along with the change you made. Thank you very much for your help .

[jbradbu1]

Following this very closely @Falcon123, I've had a similar experience with UPS/Packlink and have received an almost identical defence from their legal representatives. Interestingly, they have opted out of mediation in my case.

 

Fingers crossed we both get the outcome we're hoping for.

[BankFodder]

Please could you start your own thread about this and we would like very much to see the defence. Also, any other documentation of they have filed.

[Falcon123]

Thank you @jbradbu1. I hope that too.

 

@BankFodder I still haven't got a response from them after this email. I have received Directions Questionnaire from the court to be filed by 22nd May.

 

Should I file the Directions Questionnaire now or wait for their response till closer to the deadline and and then file it.

Also, should I opt in or opt out for the mediation?

[BankFodder]

Wait until Wednesday to send it.

In terms of mediation, it is a matter for you – but we are now suggesting that you decline mediation and go to trial.

The basis for declining mediation is that the matter involves a question of law which needs to be decided by the courts and there are no rights on either side which aren't able to be compromised in any kind of negotiation

[Falcon123]

Thank you for the advice. I will file it on Wednesday.

[Falcon123]

Do you know what goes in the field with the title "In the" at the top right of the form N180 (next to "Claim No.")?

I have attached a sample form.

N180_Sample.pdf

[dx100uk]

court name

[Falcon123]

I have received all communication so far from "HM Courts & Tribunals Service" or "Online Civil Money Claims Team" via emails so what should I put as the court name?

[dx100uk]

its on your claimform or the claim history on MCOL

 

County Court at Northampton
(County Court Business Centre)

[Falcon123]

Got it. Thank you