Evri lost my Ebay parcel £844 - court claim issued ***Judgment***

[jk2054]

Hi, Sorry its taken me so long to get round to this, i've been pretty busy today.

Anyway, just a couple of things based on your observations.

 

• Evri have not seen/read my WS (sent by post and by email) as they would have recognised the claim value is over £1000 as it includes court fees, trial fees, postage costs and interests, and there is a complete breakdown of the different costs and evidence.

I'd say theres a 1% chance they read it , but in any case it won't change what they write. They refer to the claim amount that you claimed in your claim form originally, which will likely be in the same as the defence. They use a simple standard copy and paste format for WX and I've never seen it include any amount other than on the claim form but this is immaterial because it makes no difference to whether evri be liable and if so to what value which is the matter in dispute. However, I have a thinking that EVRi staff are under lots of pressure, they seem to be working up to and beyond 7pm even on fridays, and this is quite unusual so they likely save time by just copying and pasting certain lines of their defence to form their WX.

 

• Evri accepts the parcel is lost after it entered their delivery network - again, this is in my WS and is not an issue in dispute.

This is just one of their copy paste lines that they always use.

 

• Evri mentions the £25 and £4.82 paid by Packlink - Again, had they read the WS, they would have realised this is not an issue in dispute.

They probably haven't read your WS but did you account for this in your claim form?

 

• Furthermore to the eBay Powered By Packlink T&Cs that Evri is referring to, Clauses 3b and c of the T&Cs states:  (b)   Packlink is a package dispatch search engine that acts as an intermediary between its Users and Transport Agencies. Through the Website, Users can check the prices that different Transport Agencies offer for shipments and contract with the Transport Agency that best suits their needs on-line. (c)  Each User shall then enter into its own contract with the chosen Transport Agency. Packlink does not have any control over, and disclaims all liability that may arise in contracts between a User and a Transport Agency
• This supports the view that once a user (i.e, myself) selects a transport agency (i.e Evri) that best suits the user's needs, the user (i.e, myself) enters into a contract with the chosen transport agency (i.e, myself). Therefore, under the T&Cs, there is a contract between myself and Evri.

 

This is correct but you have gone into this claim as trying to claim as a third party. I would say that you need to pick which fight you wan't to make. Either you pick the fight that you contracted directly with EVRi therefore you can apply the CRA OR you pick the fight that you are claiming as a third party contract to a contract between packlink and EVRi. Personally, I would go with the argument that you contracted directly with evri because the terms and conditions are pretty clear that the contract is formed with EVRi and so if the judge accepts this you are just applying your CR under CRA 2015, of which there has only been 2 judges I have seen who have failed to accept the argument of the CRA.

 

• Evri cites their pre-existing agreement with Packlink and that I cannot enforce 3rd party rights under the 1999 Act. Evri has not provided a copy of this contract, and furthermore, my point above explains that the T&Cs clearly explains I have entered into a contract when i chose Evri to deliver my parcel. 

 

This is fine, but again I would say that you should focus on claiming under the contract you have with EVRi as you entered into a direct contract with them according to packlink, as this gives less opportunites for the judge to get things wrong, also I think this is a much better legal position because you can apply your CR to it, if you dealt with a third party claim you would likely need to rely on business contract rights.

 

• As explained in my WS, i am the non-gratuitous beneficiary as my payment for Evri's delivery service through Packlink is the sole reason for the principal contract coming into existence.

I wouldn't focus this as your argument. I did think about this earlier and I think the sole focus of your claim should be that you contracted with evri and any term within their T&Cs that limits their liability is a breach of CRA. If you try to argue that the payment to packlink is the sole reason for the contract coming in between EVRI and packlink then you are essentially going against yourself since on one hand you are (And should be) arguing that you contracted directly with EVRi, but on the other hand by arguing about funding the contract between packlink and evri you are then saying that the contract is between packlink and evri not you and evri. 

I think you should focus your argument that the contract is between you and evri as the packlink T&C's say.

 

• Clearly Evri have not read by WS as the above is all clearly explained in there.

 

I doubt they have too, but I think their witness statement more than anything is an attempt to sort of confuse things. They reference various parts of the T&Cs within their WS and I've left some more general points on their WS below although I do think  point 3b as you have mentioned is very important because it says "Users can check the prices that different Transport Agencies offer for shipments and contract with the Transport Agency that best suits their needs on-line." which I would argue means that you contract directly with the agency.

For points 9 and 10 focus on term 3c of the contract 

points 15-18 are the same as points 18-21 of the defence if you look at it (as i said above its just a copy paste exercise)

point 21 term 3c again

point 23 is interesting - it says they are responsible for organising it but doesnt say anything about a contract 

More generally for 24-29 it seems they are essentially saying you agreed to packlinks terms which means you can't have a contract with EVRI. This isnt true, you have simply agreed to the terms that expressly say your contract is formed with the ttransport agency (EVRi). They also reference that packlinks obligations are £25 but again this doesn't limit evris obligations, there is nothing that says that the transport agency isnt liable for more, it just says that packlinks limitation is set.

for what its worth point 31 has no applicability because the contract hasn't been produced.

 

but overall I think its most important to focus on terms 3b and 3c of the contract and apply your rights as a consumer and not as a third party and use the third party as a backup 

 

[occysrazor]

Thank you for this detailed response, and appreciate you are responding while busy. 

In response to your points:

• In regards to the £25 and £4.82 paid by packlink, in my witness statement, it is clearly explained that this amount of £29.82 is not in dispute.
• I agree with you that I will focus on claiming under the contract you have with EVRi as you entered into a direct contract with them according to packlink T&Cs. 
• I also agree that I will focus on terms 3b and 3c of the Packlink T&Cs and apply rights as a consumer, and use the third party as a backup if required.

 Does it mean a new witness statement will need drafting to send to the court / Evri? 

As per my previous post #246, I am thinking of sending an email to Evri and the court, that I have already sent my WS to them by post/email and attach the email that was sent last weekend to them containing my WS.

In the email, is it worthwhile also telling Evri that I will be making a point to the judge that:

• the Packlink T&Cs provided by Evri in their witness statement clearly explains in terms 3b/3c that when a transport agency (Evri) is chosen by a user (myself), a contract is formed by the user and transport agency. Therefore, Evri's view that there is no contract is flawed, as under the T&Cs, there is a contract formed when I chose for my parcel to be delivered by Evri via Packlink.
• Evri's own T&Cs also state when a parcel is sent with Evri, a contract is formed between the sender and Evri.

Happy to get any more thoughts on the above and then I will send the email either tomorrow or by Monday. 

@BankFodder I have provided the screenshots and information you requested in post #248. Please let me know if there is anything you want to add to the above, before i send the email out to Evri and the court.

FYI - Court date is in 2 weeks on 7th June.

[occysrazor]

Hi all,

Just wanted to ask if there's any update/thoughts on Evri's defence (attached in post #246) and whether I should contact the court and Evri to explain that in addition to the 3rd party rights,

I am also highlighting that the packink T&Cs which Evri provided in their bundle, details that there is a contract in place between a user (myself) and a transport agency (Evri) and therefore I am also claiming under the consumer rights act 2015?

I'm thinking of sending an email to the court/Evri, but am not sure how I would add this as an amendment to my statement and court bundle which has already been sent to the court and Evri, and especially as the filing deadline has passed (was 24 May 2023).

Any thoughts/suggestions are welcome.

Thanks

[jk2054]

Hi,

im actually quick for once because its a bank holiday so no work

anyway you dont need to write to anyone. Just bring it up at the hearing.

 

evri read this thread

judges dont read emails

 

so nobody gains anything extra from any email you send.

 

Just leave it it’ll be ok.

 

Is your hearing this friday or next.

 

might come see it if its near

[occysrazor]

Hi, thanks for letting me know. 

I was just thinking that during the court hearing, how do i to refer to consumer rights act if the extracts are not in the court bundle that i submitted?

@BankFodder's  response last week suggested that I would need to send something additional to the court, so am trying to confirm if there is anything I need to send to the court / Evri.

Its next friday 7th June. Sure, its in Leicester. is that near to you?

Edited May 27 by occysrazor

[jk2054]

judges will know the CRA.

They can look it up if they need to

Same with LPC (who will represent EVRI)

You don’t need to send anything else to EVRI or the court no.

Leciesters not really near but its not too far and unis out so might as well.

what time is it may I ask?

[occysrazor]

Ok thanks, in the mean time i'll continue with my prep work.

The hearing letter says to be at the court before 10am but there isn't a specific time slot given, so could be anytime from there until 4-5pm.

 

[jk2054]

can you post the hearing letter please

[occysrazor]

Hearing letter (redacted) attached

Just re-read it and it says the case is listed in back to back small claims list which are block listed at 10am and 12pm before a number of judges.

Letter does go on to state that the case might not be heard until the afternoon, and there is a risk there will be insufficient time on the day for the judges to hear the case which could mean adjourning it to a further date.

Hearing letter redacted.pdf

[jk2054]

it says 10am just above that so it should be at 10

[occysrazor]

I just thought that was the starting time of the block listed cases, rather than a specific slot.

Either way i'll make sure to be at the court early and as per the instructions in the letter

[jk2054]

Yeh might come to this one if you dont mind. Not super far from my accom

[occysrazor]

Sure, got no issues with you coming there

[occysrazor]

Just an update - received a copy of Evri's WS/court bundle in the post today. No different to the one provided by email previously - see attached

 

Evri Witness Statement Redacted v1 compressed.pdf

[jk2054]

they just sent it by post because you did.

 

just copying.

[jk2054]

on friday you should get an email with evris cpr 27.9 notice

Edited May 29 by jk2054

[occysrazor]

Will keep this thread updated if i get any further correspondence/updates from Evri.

[jk2054]

Did you get the notice of non attendance for the final hearing? 

 

CPR 27.9 notice?

[occysrazor]

Hi, no I haven't got any notice

[jk2054]

That’s interesting we normally see a notice for non attendance

[jk2054]

anything from them?

[occysrazor]

Hi, nothing received.

I have been spending evenings and last weekend preparing my case to present to the judge.

Feeling a bit anxious/nervous, as I want to ensure I've covered all bases and dont leave any opportunity for a rebuttal

[AndyOrch]

(2) If a claimant does not –

(a) attend the hearing; and

(b) give the notice referred to in paragraph (1),

the court may strike out^(GL) the claim.

[occysrazor]

I did note that in other cases where they weren't attending the hearing, they did provide a notice beforehand.

I guess my case is the one they want to challenge on and as they haven't given notice, they are likely to attend

 

Edited June 5 by occysrazor

[jk2054]

might be your close I’ll check or maybe they stopped giving notice if an adovcate is going to attend because they dont want a reapeat of last time

Edited June 5 by jk2054