UPS/Packlink Parcel Lost - Claimed Raised on MCOL

[jbradbu1]

Hi all,

 

I've experienced a very similar problem to many others on this forum and have been following many topics very closely to gain as much knowledge, advice and insight as is possible. As very much a layperson in this field, this forum has been a great resource. 

 

I am now sharing my experience so far as requested by BankFodder within this topic  from Falcon123.

 

Summary:

- 14/12/22 Playstation 5 sold on Ebay mid December

- 15/12/22 Shipped using UPS via Ebay's postal partner Packlink, no insurance purchased

- 30/12/22 Claim for lost parcel submitted

- 17/02/23 Investigation complete, parcel confirmed lost and standard £60 compensation processed

- 28/02/23 Letter of complaint submitted to UPS

- 03/03/23 Letter of claim submitted to UPS

- 17/03/23 Claim submitted via MCOL

- 24/04/23 Defence received from UPS

- 02/05/23 DQ N180 received from UPS legal representatives choosing to avoid mediation 

 

One stupid mistake of mine was, as the defence states, using "UPS (UK) Limited" as the defendant rather than "UPS Limited". These are part of the same group, but the UK company handles head office admin, rather than parcel delivery. I've submitted a request to the court to update this and I am aware this could slow things up and result in fees. I'd recommend reading the MoneyClaim Online (MCOL) – User Guide for Claimants to potentially avoid being as much of a fool as me as it does state the importance of using the correct name.

 

Various documents attached including:

- Letter of complaint

- Letter of claim

- Particulars of claim for MCOL

- UPS Defence

- DQ N180 completed by claimant

- DQ N180 completed by defendant 

Defence (Redacted).pdf MCOL UPS - Particulars of Claim (Redacted).pdf N180 Directions Questionnaire - Defendant (Redacted).pdf N180_Final_Form - Claimant (Redacted).pdf UPS - Letter of Claim (Redacted).pdf UPS-Packlink Email Claim (Redacted).pdf

[BankFodder]

Have UPS actually raised the issue of the incorrect name on the claim form?

 

In fact looking at the defence very briefly, I can see that they refer to it but they don't make an issue of it. Frankly it wouldn't have been necessary to trouble the court to make this change.
UPS have put in a defence and they seem to be prepared to go ahead. The name is a mere technicality and they know about the claim against them.

Before you I wouldn't worry too much about it and see what the judge says

[BankFodder]

I can see that you have already visited a thread relating to UPS.

UPS have tended to rely on exactly the same defence and refer frequently to their own contract with the brokers.

In that thread I suggested that the OP write a letter requiring sight of the contract. I suggest that you do exactly the same thing and use the same letter but suitably modified

 

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]

 

 

[jbradbu1]

Thanks for the quick reply BankFodder.

 

My thinking was that due to the legal separation of entities (whether within the same group or not), this would result in the claim being struck out. Having already made the request to the courts, I will see what the outcome is.

 

Regarding the request for the contract, I have just submitted the request for the UPS-Packlink contract. I will feedback when when/if I hear back.

[BankFodder]

I don't think that at this level the courts are too bothered if the defendant hasn't raised a really serious objection and they don't appear to have done here.

 

Did you pay a fee to have the name changed?

[BankFodder]

Open 

[jbradbu1]

Hi,

It's been a while... I decided not to request a change of company name due to your advice and the associated cost. Also, I never heard back from from the defendants regarding the request for contract. Since then, on 29/06/23 the case has been "transferred to the below County Court Hearing Centre for allocation", the full contents of the letter are given below:

"To all parties

This claim has been transferred to the below County Court Hearing Centre for allocation. On receipt, the file will be referred to a procedural judge who will allocate the claim to track and give case management directions.

Details of the judge's directions will be sent to you in a notice of allocation.

If you would like any further information you can contact the local County Court Hearing Centre directly but please await the Judge's directions"

I have therefore been awaiting further communication from the court but it has not come, however the defendant's legal representatives emailed me last night with the following:

"We note that we have not heard from you in relation to directions in the matter.  Please could you confirm when you anticipate issuing directions? "

Please can you advise what it is that is being requested of me?

[dx100uk]

the court should have sent an N157?

ask them ....p'haps its not been allocated yet? many county courts have months of delays still

 

dx

 

[jbradbu1]

Hello again,

 

Thanks for your latest piece of advice, I contacted the court to try to progress the claim to the allocation stage and eventually received the paperwork this week.

 

A summary of what's been included within the N157 notice:

- Trial date: 27/11/23 (1.5 hours)

- By 4pm on 19/09/23 I must send the court a reply to the defence in which I set out the basis upon which I allege that I have legal rights against the defendant given that the Defendant contracted not with the Claimant but the supplier of the relevant parcel.

- The court deems the case as suitable for mediation.

- By 4pm on 19/09/23, the Claimant must send the court and the Defendant copies of all the documents that the Claimant intends to rely upon at the final hearing (in a bundle).

- by 4pm on 03/10/23, the Claimant and the Defendant must send to each other and to the court copies of witness statements of all witnesses which they intend to rely upon at the final hearing.

- Not less than 7 days before the hearing each party must file at court and serve the other party a skeleton argument (limited to no more than 4 pages of A4 paper) setting down the basis upon which the party alleges, or denies, that there is a legal liability between the two parties.

 

Next Steps:

I will begin by drafting my response to the defence using the arguments surrounding the Rights of Third Parties Act which are frequently referred to on this forum. I'll also add that I never received a reply to my request to view a copy of the contract between UPS and Packlink which the Defendant relies upon with their defence, therefore with no sight of this contract, their statements which refer to this contract provides absolutely no support to their defence. As BankFodder stated within Falcon123's thread, I'll invite the court to come to its own conclusions as to my position as a beneficially entitled third party if a copy of this contract is never shared. 

Should my reply to their defence and the court bundle be separate documents or should I simply just include the reply with the court bundle?

[BankFodder]

Please can you post a link to the thread of falcon to which you have referred.

Yes please. Prepare and then post the draft document that you are proposing to prepare and then we can have a look.

Well spaced and numbered Paragraphs please

[BankFodder]

Please will you visit the thread relating to a claim against DPD in respect of the contract which was made through Packlink.

In particular visit this post

and download and read the attached document.

To post down from there, there is another attachment which I think is called "query.pdf". Download that and read that.

Visit the Packlink site and also the DPD site – and try to find the equivalent documents which relate to your contract with Packlink. They will probably be identical and I suppose they on the Packlink site. If you find them then save the link and also download them and put them on your thread.
These are essential.

Also, as I have said above, please produce your own draft document with well spaced and numbered paragraphs.

Although it is not yet September, I think that there is a certain urgency about this because it might be a large job to get it perfect.

I'm going to post a message to the owner of the thread to which I referred you to and ask them if they can help us find the Packlink document if it is on the Packlink site.

[jbradbu1]

Hello again,

 

I have finally got around to pulling together the court bundle, please see attached.

 

Despite using StoneCross' bundle and arguments as a template (this was enormously helpful, so thank you StoneCross for your hard work which I have benefitted from), I don't doubt that I have made some errors in how I have substantiated my arguments and how I have worded things in a way that would be acceptable to the courts. Also, I wasn't confident with the type of information to include within the "Reply to Defence" as opposed to the "Witness Statement", I was afraid of repeating myself, so please may you advise if I need to shuffle things around. 

 

As always, thanks for your patience and advice, I wouldn't have pursued this with the help of this forum. 

 

As requested above - Falcon123 thread below for info:

 

Jamie Bradbury v UPS LTD K3QZ061X.pdf

[BankFodder]

A quick note on the format:
when you do a reply to the defence, you should refer to each paragraph I number

So: "of paragraph 1 of the defence… The claimant admits that the Defendants name should have been UPS Ltd. Not UPS (UK) Ltd.… Blah blah blah"

"Of paragraph 2 of the defence… Et cetera blah blah blah et cetera"

Of paragraph 3…

Et cetera et cetera

If you wouldn't mind doing that and reposting the document. I won't be able to read all 25 pages but I shall make some comments on the relevant parts – your statements

[BankFodder]

As far as I can see – paragraph 2 you are disclosing far too much evidence.
You should really restrict yourself to saying that you reject the defendant's assertion that you do not enjoy third-party rights. The text of the 1999 act is clear. You are discernible beneficiary and therefore you enjoy rights.
You put the defendant to proof and to explain why they think that this statutory provision does not apply in the circumstances.

Something like that.

As soon as you start giving detailed reasons – then you are providing them with hints as to how to counter what you have to say.
Keep your powder dry.

Try to restrict your responses to their defence to the bare minimum. Enough to give the court pause for thought but no more. The suggested text that I have given above simply challenges them to put their money where their mouth is.

In fact they have played the trick on you by giving you minimal information and drawing you out in your arguments. Don't fall for it.

[jbradbu1]

Thanks again BankFodder,

Please see the attached file with some slight amendments. You may suggest I need to further cut it down or keep some arguments in my back pocket, so of course I will go with whatever you believe is optimal.

Apologies for the length, I wouldn't expect you to read it all. Pages 5-10 of the file are taken up by the Defendant's T&Cs which contributes to the length. 

Jamie Bradbury v UPS LTD K3QZ061X v2.pdf

[BankFodder]

Sorry but this is a bit all over the place.

You start off by making your comment on paragraph 2 of the defence – that's fair enough but then you dart over to paragraph 10 and comment on that and it is only several paragraphs later of your reply – at paragraph 8 – that you then get on to referring once again to the defence but this time your addressing paragraph 16 of their defence.

You need to deal with each paragraph of their defence point by point – in the correct order – one point at a time.

We can't move on until you do this

[jbradbu1]

Okay, understood.

So you'd suggest, in some capacity, to reply to each of the 20 paragraphs of the defence?

[BankFodder]

Yes. That's what I tried to explain you yesterday morning. I'm not sure that I suggested anything else.

If you have a comment to make about a particular paragraph then you comment on it – but in the order that the paragraphs are presented to you and you don't start jumping around skipping paragraphs and then going back again.

It has to be in an ordered and structured way so that it makes sense to – a judge, for instance, reading it.

[jbradbu1]

Please see the latest version of the court bundle which has been revised following your most recent piece of advice.

 

Thank you.

Jamie Bradbury v UPS LTD K3QZ061X v3.pdf

[BankFodder]

Can you please just clarify one thing – was the lost item sent by you or intended to be received by you?

[jbradbu1]

It was sent by me. If that's not clear then I can reword to make sure it is.

[BankFodder]

No that's fine. I understand now.

It will be helpful if you could respond to questions here a little bit more quickly. Thanks

[BankFodder]

Please get on with the suggested modifications below. You have to reorder your paragraphs. There are many further modifications to make so please will you not take too long about it.

  

Quote

Reply to Defence
Claim number: K3QZ061X
Between: MR JAMIE BRADBURY Claimant
And UPS LTD Defendant
1) Of paragraphs 2-4 of the defence I note that the Defendant’s claim the Defendants name should have
been UPS Ltd. Not UPS (UK) Ltd. My apologies to the Court for this error. However, it is clear from the
defendant's response that the relevant claim papers have reached them and that they are fully informed
about this claim against them.
As this is a mere technicality, the claimant respectfully request the court to allow the defendants name to be changed without further formality.

2) I am the Shipper of the item, properly packed and addressed and which was placed into the hands of the defendant as bailee and while under their care and control was lost by them as a consequence of their lack of reasonable care and skill.

2) Of paragraph 5 of the defence, it is argued that I have not provided details of the contracts between the
parties. The contract in which my third party rights apply to is not a public document, hence it’s not
possible for me to access or provide. Copies of this document have been requested from the defendant.
However, the defendant has not pleaded that no contract exists and in fact as the bailee of the claimant's property in their care, they are well aware of the arrangements between the claimant and Packlink and between themselves and Packlink.
Furthermore the defendants have referred to the contract, claimed to have investigated it and have pleaded in respect of it so it is clear that they are fully aware.
In any event, the defendants argument seems to be based on their assertion that there is no contract between the claimant and themselves and therefore paragraph 5 is otiose to their defence.

3) Of paragraph 6 of the defence, the defendant states that I have not pleaded how I consider the
Defendant liable to me further to the Contracts (Rights of Third Parties) Act 1999. As clause 9.2 of the
Defendant’s Terms and Conditions state, UPS will be liable for failure to act with reasonable care and
skill. The failure is clear and given my third party rights (which I mention in paragraphs 6 & 8 ) in relation
to the failed acts of Defendant, the Defendant has a liability to me.
The Contracts (Rights of Third Parties) Act 1999 is a short act of Parliament of only 10 sections and no schedules. It is clearly expressed and the claimant claims third-party rights under the provisions of section 1 of the Act. The claimant refers the defendant to that Act and a copy of the act is included in the bundle for the defendant's benefit.
It is clear that the claimant is a discernible beneficiary within the meaning of the Act as the claimant is the of the item and the defendant is the bailee which has been entrusted with the care of the claimant's property.

4) the defendant claims that I have no rights under the Contracts (Rights of Third Parties Act) 1999. However the defendant has not explained why the act is not applicable in the circumstances.
The defendant should explain the reasons for this assertion rather than simply sent to rely on generalised and unsupported assertions.

4) The Defendant argues that I have not given sufficient information to comply with Civil Procedure  Rule
and plead my case such that the Defendant understands it. In submitting the case via the MCOL system,
a claimant is limited in the level of detail that can be given before character limits are exceeded, this
explains the brevity. Additionally, given the straightforwardness of my arguments, I’ve no doubt that the
Defendant is well aware of the case against it.
However, the defendant has then gone on to admit that they have identified the contract, that they have investigated it, and they have then attempted to produce various arguments as to why they have no liability.
It is clear that the defendant is completely in possession of all the necessary information to understand the claim and to respond to it – as indeed they have done.

5) Of paragraph 9 of the defence, the Defendant claims that the consignment was identified as lost on or
around the 30.12.2022, yet the defendant's own tracking system on 8 January 2023 states that the parcel is still on its way. (Item 5.2, page 13)
It is submitted that the defendant's tracking system is chaotic and can scarcely be considered to be evidence of "reasonable care and skill".
Yet they don’t explain the reason for following status (see item 5.2, page 13)
provided by the Defendant’s tracking system which states on 08.01.2023 that the parcel is still on the
way. This provides further evidence to the Defendant’s failure to act with reasonable care and skill.

6) I reject the assertion within paragraph 10 of the defence that states that the Claimant has no contractual
relationship with UPSL.
If that is the case, then as has already been stated, I enjoy third-party rights under the Contracts (Rights of Third Parties Act 1999.I am clearly a discernible beneficiary under the contract between UPS, Ebay and
their contracting partner. I put the Defendant to proof and to explain why they believe that this
statutory provision does not apply in the circumstances.

Additionally, and in the alternative the defendant has supplied a document described as "UPS Terms and Conditions of Carriage".
The UPS terms and conditions apply to the "Shipper".
By the defendant's own admission, this document containing the "UPS terms and conditions" apply to the Shipper and describe the various duties and responsibilities that the defendant owes towards the Shipper who in this case is myself, the claimant.
It follows from this that the defendant either has a direct contractual responsibility towards the claimant or alternatively, the defendant acknowledges their duties to myself, the claimant (shipper) while my goods are in their care.
Some of the defendants terms and conditions are clearly unfair.
The claimant invites the court to consider the contents of the defendants terms and conditions in the light of unfairness or otherwise of its provisions.
The defendant seeks to limit their liability to a maximum fixed some of damages in the event that they failed to perform their contractual duties.
It is submitted that this contractual term is unfair by any measure – and including under the unfair terms provisions of the Consumer Rights Act 2015 and also under the unfair terms provisions of the Unfair Contract Terms Act 1977.
Apart from the fact that the defendants terms and conditions have not been negotiated and in fact form part of their standard terms and conditions, under the defendants terms and conditions they are reserving to themselves the right to compensate customers with a minimal and unrealistic amount even though the the loss and non-delivery of the claimant's property amounts to a total non-performance of their contractual duty and also a complete failure of the terms of the bailment.

7) There is no need to establish a contract between the claimant and UPS because the Contracts (Rights of
Third Parties) Act 1999 applies.
Judgements now exist (such as the case of Hashim Farooq v Evri PARCELNET) 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. This precedent provides clear guidance for the application of law in the same manner
as these types of case with the same facts.

9) If I were to be required to prove the establishment of a contract between myself and UPS, I would like to
refer to the extracts from the eBay Delivery Powered by Packlink Terms and Conditions (See item 8, page
17) which states that a transport contract is entered into between the User (myself) and the Transport
Agency (the Defendant).
10) Within paragraphs 10-14 of the defence, the Defendant frequently refers to the Contract between
Packlink and the Defendant. Despite relying on the terms of said contract within the defence, as well as
receiving a request from myself to view a copy of this document, no response was received from the
Defendant. The refusal to supply me with this document before trial would effectively and potentially
waste the time of the parties and of the court.
11) In response to the statement made in paragraph 16 of the defence, clause 9.2 within the Defendant’s
terms and conditions (see page that state the Defendant’s liability is limited to £60.00 per shipment is
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.
12) For the Defendant to accept any liability, it negates any argument that their liability is limited.
13) Of paragraphs 16-17 of the defence, the Defendant refers to the “declared value” clause within their
terms and conditions, this is effectively an insurance policy. I’d like to make the following points in
relation to the use of this insurance policy:
i. the defendants offer of an insurance policy in the form of secondary insurance is contrary to
Section 72 Consumer Rights Act 2015 in that it is presented in a way to convince their customers
that they have limited consumer rights of redress unless they purchase the policy.
ii. The defendant's Terms and Conditions make it clear that customer’s redress is limited in the
event of loss or damage of an item unless this secondary insurance protection is purchased.
iii. This exclusion of consumer rights which are guaranteed by the Consumer Rights Act 2015 is
specifically prohibited by Section 57 of the same act.
14) In response to paragraphs 18.1-18.3 of the defence, there is no need to establish a contract between the
claimant and UPS because the Contracts (Rights of Third Parties) Act 1999 applies.
15) In response to paragraph 18.4 of the defence, the insurance policy that the Defendant refers to is
contrary to Section 72 Consumer Rights Act 2015.
16) Of paragraphs 18.5-18.6 of the defence, strict proof of the value of the consignment is requested. The
value of the consignment and the proven loss (as evidenced by the refund) can be viewed from the
image shown in item 5.1, page 13.
17) In response to paragraph 18.7 of the defence, the damage to the consignment is recoverable by me from
the Defendant as I am a clearly identifiable third party of the contract who has suffered proven loss as a
result of the Defendant’s failure to act with reasonable care and skill. The Defendant accepts liability for
the loss as proven by their acceptance of the loss whilst the consignment was in their care and clause 9.2
of their terms and conditions.
18) Of paragraph 18.8 of the defence, it is argued that the loss is purely economic, I reject this argument on
the basis that the consignment belonged to me up until the time that had been successfully delivered by
the Defendant (which the Defendant failed to do). The consignment was in the care of the Defendant
and it was their negligence, in failing to deliver the service on which the contract is based, that resulted
in my property being lost/damaged

 

[jbradbu1]

Thank you BankFodder,

 

I have reflected your modifications within the attached file. By removing the reference to the Farooq vs Evri case, would you also suggest removing it entirely from the bundle (i.e. also in item 11, page 22) and keeping this argument for the hearing?

Jamie Bradbury v UPS LTD K3QZ061X v4.pdf

[BankFodder]

I think we should avoid all references to the Farooq case until we have the transcript.
We seem to be having difficulty getting hold of it and if you would be prepared to make your own application then we would reimburse you. I expect it will only be about 50 quid.
Please let us know if you would be prepared to do this? If so then I will send you the details and you will have to complete an EX107 form and email it to the court.

In the meantime, please have a look at the document link below. I think that this is a very important document. See if you can find the equivalent in your own Internet browser and which refers more to UPS – but the one below will be enormously helpful anyway.

You should probably include that in your bundle – but try to get one that is relevant to your own case.

 

https://www.consumeractiongroup.co.uk/applications/core/interface/file/attachment.php?id=51351&key=6c2b9e7f08ae4274c46d76ba27748236

 

have a look at these two threads –

especially this one: