Ebay sale of Canon 1DX camera £736 - DPD delivery to wrong address . PAPLOC. Claimform issued.

[StoneCross]

• DPD delivered parcel to wrong address and deny liability for Loss.

  Copies of MCOL Claim and Defence as filed by DPD are available along with Court Filing number.

  Item sold via ebay ( Canon 1DX camera body) .

  Delivery option taken via Packlink with DPD.

  Parcel taken to DPD nominated collection shop. Receipt obtained from DPD’s agent which must ‘join’ DPD in respect of responsibility.

  Item due for delivery on 20^th January 2023.

  Purchaser/ recipient advised non delivery 20^th January 2023.

  Packlink provide picture of delivery but clearly wrong address.

  Purchaser refunded.

  Got no where with Packlink despite extensive emails.

  Decided to pursue DPD and wrote to DPD advising of intention to make a claim.

  Filed a claim with MYCOL on issue date 23/02/2023 for £736.00.

  DPD acknowledged claim via Court.

  DPD ( Suzie Wallwin) now reject claim on the basis that it should be made against Packlink as they claim no contract as between me and DPD.

  Copied from MCOL

  DPD UK ltd filed an acknowledgment of service on 10/03/2023 at 08:05:54

  A bar was put in place for DPD UK ltd on 20/03/2023

  DPD UK ltd filed a defence on 20/03/2023 at 16:05:23.

   

       

   

  Any advice guidance welcome.

   

[whitelist]

The contract must belong to the delivery operator you paid for service?

 

 

Edited March 21, 2023 by whitelist

[StoneCross]

Private seller to private buyer.

[whitelist]

The contract must belong to the delivery operator you paid for service?

It is whoever you paid that has the contract

But wait for more replies as this is a sore subject with delivery companies

[BankFodder]

Please start off by reading as many of the stories that you can manage on this sub- forum. That means lots and lots. You will find many stories involving third party rights under the Contracts (Rights of Third Parties) Act and almost all of them involve PackLink which conveniently was relocated to Spain a few years ago having previously been domiciled within the jurisdiction in England.

Please will you post up the claim form and also the defence in PDF format.

Do the reading

[whitelist]

Looking at this issue objectively, and in my opinion,

You used the service of Packlink to facilitate the delivery of a parcel that gave you the option to use different couriers. Your choice was DPD.

You then paid Packlink, not DPD direct for this service. Who told you to go to a DPD collection point where you got an invoice, etc?

If that is correct, then Packlink will be who you go after, not DPD

But as stated previously, best read up on this and burn the midnight oil

[BankFodder]

Sorry but this is completely wrong. I think that it is you who should be doing reading around on this sub- forum. I have sent you a message

[whitelist]

Might I ask why you believe my comment to be in error?

Basic contract law stipulates it is who you make payment (Consideration) is who you have the contract with.

The OP has stated his dealings are with Packlink, not DPD who is not party to the contract as a third party. (Privity )

[BankFodder]

do the reading – like everyone else who comes to this forum for help

[StoneCross]

Thank you for your speedy attention. Attached should be pdf's of claim and defence.

I am not a Lawyer but do have some experience of dealing with negligence claims in the past and indeed contract law.

I read most of the relevant information on this forum  and hope I haven't gone too far astray with the claim form.  

I look forward to receiving any further advice advice.

defence.pdf claim1.pdf

[whitelist]

Might I suggest deleting your links and remove your name and claim number?

[BankFodder]

The claim is pretty good. I would have alleged breach of contract rather than negligence but it's all a technicality really. They are saying that you use the wrong name for the defendant. Once again a technicality but may be a bit more careful in future.

Their defence is absolutely predictable but it is interesting that although you have mentioned your third party rights under the 1999 Act, they have completely ignored that point.

At some point you will receive a directions questionnaire. It would invite you to consent to mediation. In the past we have been advising people that they should do this but frankly it is all getting so ridiculous that we would suggest that you reject mediation and insist on going directly to trial on the basis that the claim and the defence raises an important question of law – that of third party rights – which needs to be dealt with by a judge in open court.

There is a very slight risk that even if you win – which you probably will – the court might say that you should have gone to mediation and they might withhold some costs from you. This is highly unlikely to happen but I am making sure that you understand the position.

Let us know when the DQ arrives

[StoneCross]

BankFodder, thank you for the response. I used 'negligence' because the simple act of not delivering to the correct address but elsewhere when DPD have originated the address label would in my understanding of the law, indicate a negligent act  by DPD or their agent for whom they would be responsible. I will update you as and when etc.

Do I need to redact the info as suggested by Whitelist. I am happy for it to stay unless there is a specific reason  not to.

[BankFodder]

As you are suing on a contract, it would have been more appropriate to refer to the breach. As you are a layperson and this is simply before County Court, it's only a technicality.


It's up to you whether you want to redact. If you are worried about DPD sending the boys round in the middle of the night then maybe you should redact
 

[StoneCross]

I will just leave the pdfs as they are. Again thanks for your guidance.

[whitelist]

The Contracts (Rights of Third Parties) Act 1999 has been mentioned

1 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,

 

This is in the DPD Contract

23. THIRD PARTY RIGHTS

The Contract does not give rise to any rights, under the Contracts (Rights of Third Parties) Act 1999 or otherwise, for any third party to enforce any term of the Contract.

Something to consider and research before relying on that clause in any defence to a counter claim

Sorry, but you have been highly selective and you have missed out important aspects of the act in relation to the range of people who can benefit from third party rights .

Maybe you didn't bother to read any further.

I sent you a private note saying that your posts were often unhelpful to people .

I am saying it publicly that this is poor quality advice and it is unhelpful and discourages people unnecessarily.

[StoneCross]

I have been reviewing the various documents I hold and in particular the consignment delivery label.

The parties detailed on the label are , Sender (me) Recipient ( Buyer) and DPD .CO.UK. ( presumably as carrier)

In addition I appear to have been allocated and account number.

There is no mention of Packlink.

Is the postage label therefore evidence of an acknowledged relationship as between myself and DPD ie they are undertaking to deliver the package on my behalf and therefore owe me a duty of care?

Happy to forward pdf copy of label if it is on any interest.

[BankFodder]

No need to send it to us. Thanks .

However, what you are finding is very interesting and even further evidence of the direct relationship between yourself and DPD .

One of the requirements in the third parties act is that you be a discernible beneficiary or of a class of discernible beneficiary .

Clearly you are exactly that .

If they want to make an issue of it then you should insist on seeing the contract between them and packlink.

It is only if that contract contains a clause excluding third party rights that you will not be able to benefit from the 1999 act

[StoneCross]

Apologies for a follow up question.

Is there anything I need to be doing before I receive the DQ? I would prefer to be as 'informed as possible' rather than having to play catch-up.

Many thanks

[BankFodder]

That is a difficult question to answer. We don't know what your own state of knowledge is.
Probably the most important thing is that you need to start deciding whether or not you are prepared to go to mediation or with the you want to go to trial

[StoneCross]

 

 

Lets assume my state of knowledge is fairly minimal. But I do have some knowledge of the Law of Contract and Tort, and for 35 plus years I dealt with Negligence Insurance matters for a large surveyors and estate agents business. But on current court procedures my knowledge is very limited to the extend I am unclear exactly what types of questions/ responses are involved in the DQ procedure.

I suppose whether or not to look to mediation depends on the apparent  strength of the case there is against DPD. Whilst I have read as much background information as I can find on your excellent Forum the number of reported/recorded outcomes seems quite small.

I am quite prepared to pursue a claim in court if there is a reasonable degree of certainty that DPD are culpable legally.

Sorry that is quite long winded. DPD indicate the name of the company of the Claim form is incorrect, is that something I need to alter at this stage.

[BankFodder]

Frankly you don't need to have much of an understanding of contract law. That part is open and shut.
The only issue here is that of third party rights.

You're quite right that there are very few reported/recorded outcomes. That's because they always settle at mediation and only a very few have slipped through the net.
Nothing relating to 3rd party rights has slipped through the net. They are all settled at mediation and frankly it is all part of a litigation model intended to discourage others and to make it as tough as possible for people who are persistent enough to begin a claim.

As I have said elsewhere on this forum, your interests and ours are aligned in so far as we want you to get a result. It might be said that our interests diverged to the extent that we are campaigning group and we want to look after the interests of all victims of these companies. Your interests are focused (very reasonably) on getting your own money back rather than standing on principle.
This does not imply any criticism of you. It is simply that at some point we are here for different reasons.

I am 90% certain that DPD and the rest of the courier industry would fail on the issue of third party rights. If this were not the case then they would have taken the matter to court by now in order to establish it once and for all. They have always settled at mediation.

Exactly the same with the insurance requirement but in that respect, we now have three judgements in our favour. In fact there is 1/4 but even though we helped that claimant, they have declined to help us obtain a transcript of the judgement.
However, with the insurance requirement, there were almost all settled at mediation and I have no doubt that the courier companies are very anxious that there are not further judgements against them on this issue because as they pile up on top of each other, it will become more and more difficult for the courier companies to maintain this insurance scam. It's the equivalent of PPI mis-selling.

The Packlink arrangement is also a scam. This company used to be domiciled within the jurisdiction in England. For no apparent reason they up-sticked and relocated in Spain – outside the jurisdiction and outside the reach of the normal County Court process.
I'll leave it to you to surmise why this might be

[StoneCross]

Very many thanks for your extensive reply.

Irrespective of whether I accept mediation or pursue the matter in the County Court I will make a donation in due course. However can I repeat my question as to what type of queries are raised in the DQ process?

lastly for now... in your opinion is the information referred to previously regarding the delivery label reasonable/arguable  evidence of a contractual relationship as between myself and dpd.

My thought process overall goes along the lines of.

Ebay facilitate a service to arrange delivery of item sold via its market place.

Packlink have an arrangement with ebay to allow them to market the services of various carriers to ebay sellers no doubt for a commission or other reward.

Packlink act much in the way an Insurance broker does offering various alternatives ie acting as an introductory agent/broker . Ebay seller selects one of the offerings.

Ebay seller pays Packlink who is agent/broker for delivery company payment reflecting Carrier specific costs. However as with an Insurance Broker the insured contract is with the Insurance Company and not the broker even though the premium may be paid to the broker who may even issue a receipt for the cost..

For this purpose DPD can be regarded as the Insurance Company .

Line of thought may be totally defective! It might even be argued that in contract law the following were met, consideration ( cost via Packlink as agent), offer and acceptance (via ebay) form/intention  (receipt and package label issue in the name of DPD)..

 

[AndyOrch]

Quote

However can I repeat my question as to what type of queries are raised in the DQ process?

 

Take a read.

 

 

 

 

.

[BankFodder]

You are overthinking this. It's not a question of you having a contractual relationship with DPD. It is a question as to whether you were a discernible beneficiary of the contract .

 

The fact that either you sent the item all you were, the recipient of the item makes it very clear that you were a discernible beneficiary of the contractual arrangement.

 

That's it