Evri lost my Ebay parcel £844 - court claim issued

[jk2054]

UPS transcript attatched

 

 

K3QZ061X BRADBURY UPS 27.11.23 (WARW) - J v3a67.pdf

[BankFodder]

It's not possible to open your witness statement et cetera. It is returning an error message. Please can you try uploading it again and then test it by trying to download to check it is okay

[dx100uk]

done now pdf NOT DOCX!!!

 

[BankFodder]

Still not opening for me

 

[occysrazor]

Hi, not sure what has happened here. The PDF has been re-attached below.

Draft - Witness Statement and Court Bundle redacted.pdf

I have tested that attached draft WS / Court Bundle can be downloaded and opened, and it is working.

[BankFodder]

Thank you. I'll get back to you about this later on today

[BankFodder]

Quote

12.
The claimant did not directly contract with the defendant but instead used the services of Packlink, a comparison website and third-party parcel broker domiciled in Spain which in turn entered into a contract with the defendant.
Packlink specifically arranges for its customers' parcels to be transported by an appropriate parcel delivery service.
 

New paragraph in this case Packlink arrange for the claimant' s parcel to be transported by the defendant

new paragraph the defendant was fully aware at all times that the parcel they had agreed to transport belonged to a sender on behalf of whom Packlink was acting. The defendant was also fully aware that the parcel was intended to be delivered and addressee.

New paragraph both the defendant and their contracting partner Packlink were fully aware that although the claimant sender of the parcel and the addressee where the intended beneficiaries of the contract even though they were not direct contracting partners in the delivery contract.



 

Paragraph 16 the claimant is not a direct contracting partner of the defendant and as such is relying on his rights under the Contracts (Rights of Third Parties) Act 1999 (pages 33 – 41, court bundle).

 

Paragraph 17 Both the claimant sender of the parcel and the intended recipient form part of a class of person intended to benefit from the contract is clear that the contract between Packlink and the defendant was concluded specifically for their benefit and as such, it is clear that the sender is a discernible beneficiary.

Paragraph 18 Section 1 of The Contracts (Rights of Third Parties) Act 1999 allows a third party to enforce a contract made for their benefit, even if they were not directly involved in forming the contract. This Act ensures that third parties who are intended to benefit from a contract can assert their rights and seek appropriate remedies as if they were

paragraph? Both parties were aware of the involvement of third party and the intention behind the contract between Packlink and the defendant to benefit third parties, namely, either the sender of the parcel or the addressee, or both. Therefore, it would be disingenuous for Packlink and the defendant not to recognise the presence of a third-party beneficiary.

Paragraph? Consequently, it can be taken that the claimant is suing in place of Packlink, the defendant's direct contracting partner and is claiming on the basis of a trade contract.
 

??
The 1999 Act provides that if a third party is a beneficiary of the contract or a member of a class of beneficiaries, then that third party is entitled to enjoy rights as if they were a direct contracting partner. Given that the claimant was the sender and the purpose of the contract between the defendant and Packlink was precisely to deliver the claimant's parcel to the addressee, there can scarcely be any argument that the claimant is a discernible beneficiary of the contract or a member of a class of beneficiaries as required by the 1999 Act.

Neither Packlink nor the defendant have attempted to provide… – Carry on with this

you have a problem because as you are relying on your third party rights, you are suing on the basis of the commercial contract. This means that you cannot refer to the consumer rights act at all.

You have to rely on the unfair contract terms act 1977 and also some basic contract law.

Modify your paragraphs and will have a look

 

Paragraph 29 – the transcript is now available and you should have amended this

 

I've made substantial suggestions here. There are more to come but please can you incorporate my suggestions above, reorganise and re-paragraph your witness statement and then will have a look at the next version.

By a large where it is in green – that is an indicator for you that there is a new paragraph number or something. Where it is in red, that she generally mean that I am suggesting that you use that text.

[occysrazor]

Thank you for this substantial feedback. It will be incorporated into the WS and then share the updated version

 

The WS / Court Bundle has now been updated to incorporate bankfodder's feedback in post #158 above. I also researched the Supply of Goods and Services Act 1982 and some contract law, and added in updates have to bring this in.

The updated WS / Court Bundle PDF is attached and all updates are in blue font - visible on paragraphs 12 - 17, 20, 26 - 28, 31 - 34, and 43. Some of the paragraphs have also been re-organised following the feedback/updates being incorporated.

I also wanted to ask if the points on the insurance requirement (paragraphs 46 - 57) and the previous decisions on insurance requirements (paragraphs 58 - 66) should no longer be used, as I noted that these points refer to Consumer Rights Act 2015, but as per BF's feedback above, since I am relying on 3rd party rights, I cannot refer to the Consumer Rights Act at all?

Any feedback on the attached, and any clarity on the above question is appreciated. 

one point also to also share - I have been trying to pay the Trial fee that is in the notice of allocation. I've called the court almost everyday but am unable to get speak to anyone as it just brings an automated message that they are busy and to try again later.

I also cannot find any information if the fee can be paid online, and have sent an email to the court for any information on how to make payment.

I will keep on calling the court until hopefully I can get through to speak to someone and make payment over the phone (or if they respond to my email sooner on how to make the payment online).

 

Draft - Witness Statement and Court Bundle redacted.pdf

[BankFodder]

That is quite right. When you apply your third-party rights in a commercial contract then you are effectively replacing one of the commercial partners – in this case Packlink – and you can only enforce the rights that Packlink would have had – if they could have been bothered – which of course they can't.

On the other hand, although the insurance cases referred to the consumer rights act, they still make the point that EVRi are attempting to limit their liability unlawfully and even in a commercial contract this should be unfair within the meaning of the unfair contract terms act 1977 – and so you might as well include them.
There is also the issue that the insurance – is probably "insurance" meaning that it is a product which should be regulated by the FCA. It isn't. It isn't exempted by them and it isn't authorised by them so from that point of view it is also unlawful in any event.
Bring up the issue of whether or not this is an insurance product which should be regulated takes you into new complicated areas – but it is worth bringing it up.

The FCA discusses how to identify and insurance product and says:

Quote

The best established of these descriptions appears in the case of Prudential v.
Commissioners of Inland Revenue [1904] 2 KB 658. This case, read with a
number of later cases, treats as insurance any enforceable contract under
which a 'provider' undertakes:
(1) in consideration of one or more payments;
(2) to pay money or provide a corresponding benefit (including in some
cases services to be paid for by the provider) to a 'recipient';
(3) in response to a defined event the occurrence of which is uncertain
(either as to when it will occur or as to whether it will occur at all)
and adverse to the interests of the recipient. 

https://www.handbook.fca.org.uk/handbook/PERG/6.pdf

page 4 – at paragraph 6.3.4

It is an offence to offer for sale an insurance product without authorisation or else without exemption by the FCA.

So far as I can tell, the only defence to this is that you exercised "due diligence" which I suppose might mean that you were careful to take expert opinion that the product you are selling was not insurance.
This means that if it ever came up for debate, I expect that the parcel delivery companies would have to show that they had sought advice from competent legal practitioners and that the advice which they had received advise them that their product was not insurance.

I'm very curious to know whether they have exercised due diligence in this respect.

 

Paragraph 3 There is no dispute that I was the customer and the beneficiary of the contract.
 

Paragraph 4 – you say that you made a contract with the defendant!! This is absolutely not at all what happened. Why have you sent this? This is why you are claiming third-party rights?
What is going on here? – Especially when later on at paragraph 12 you say that your contract was in fact with Packlink. So you are now saying that you had a contract Packlink and you also have a contract with the defendant?

If you are simply copying stuff out from other witness statements then you are going to take a bloody nose because it means that you really won't have understood what you are doing.
You have to exercise some autonomy in this.

Paragraph 10 – why are you referring to the defendant's insurance scheme?

Paragraph 18 this is not an accurate summary of the 1999 act. You are suggesting that any third party who might benefit from a contract is entitled to enforce. I wish it was that way but it's not.

Paragraph 22 Neither Packlink nor the defendant have attempted to provide the claimant or the court with a copy of their contract which might show that in some way the rights of a beneficial third-party might be excluded.

Paragraph 25 – how has the defendant accepted that the loss of the parcel was foreseeable to the defendant? What does this mean?

Paragraph 27 – where is this contained in contract law that parties must fulfil obligations in good faith? Also, how have they not demonstrated good faith

 

Please can you review what you have done so far – we will pick up the rest on the next version

[occysrazor]

Hi, Updates/edits have been made to the WS (in blue font) to incorporate the feedback - attached is updated WS pdf for any further feedback.

In summary:

• Paragraph 4 has been updated to remove reference that a contract was made with the defendant
• Paragraph 10 has been removed
• Paragraph 18 containing a summary of Section 1 of the 1999 Act has been removed.
• In response to your feedback on Paragraph 25 and your questions about how has the defendant accepted that the loss of the parcel was foreseeable to the defendant? What does this mean?
  
  - This was in your previous feedback in post #143 on 24 March: "This means that you would be relying on the unfair contract terms act 1977 and you will simply have to say that it is unfair by any measure that a company should be able to charge money for carrying out of service with the proviso that if they didn't carry out the service that they would not be liable.
  You would have to say that the loss of the parcel was a foreseeable loss. It had already been declared. It had already been valued and it was accepted on that basis.
  That will deal with that after you have posted up a revised draft please."
  
  - I therefore included this point to say that the loss of the parcel was foreseeable to the defendant.
  - However, given your questions and thinking how the loss of the parcel was foreseeable by the defendant, this point is removed.
   
• Paragraph 27 has been updated to remove reference about fulfilling obligations in good faith.

 

Draft - Witness Statement and Court Bundle redacted.pdf

[BankFodder]

I suggest it might be good form to start with a very brief summary of the case – so before paragraph 1 something like:

Brief Summary of Claim

The Defendant refuses to reimburse the Claimant for the loss of a mobile phone value £XXX even though the defendant had contracted to deliver the phone safely to a UK address.
The Defendants' reason for refusal to reimburse is that the claimant did not contract with them directly and instead is relying upon his rights under the Contracts (Rights Of Third Parties) Act 1999 as he used a price comparison website to engage with the Defendant.
The Defendant says that the 1999 act does not apply to the Claimant but has given no explanation.
The Defendant has raised no other objection to the Claimant's claim
 

Paragraph 1 blah blah blah et cetera

Paragraph 21 –… The 1999 Act applies to the claimant unless the defendant can show that their contract with Packlink specifically excluded third-party rights under the 1999 Act or that the claimant is a beneficiary of the Packlink/defendant contract does not fall within a class of entitled third-party envisaged by the 1999 Act.

Paragraph 23 – you are now referring once again to the defendant's contract with you and that is no longer relevant because you are suing as an entitled third-party and I have already explained that you are simply replacing Packlink here is the litigant.

New paragraph 23 – it is clear that the defendant does recognise the claimant as an entitled third-party despite their denial in their defence because, for instance, as I have already stated at paragraph 2, they have made a partial reimbursement of £29.83

 

**Please can you explain what the £29.83 was intended to represent – delivery fees? Limit of liability?

Paragraph 25 –… By losing the claimant’s correctly addressed and packaged parcel

please can have a look at this so far. And it me an answer to the question above in green

[occysrazor]

The £29.83 is the refund provided by Packlink, made up of £4.83 that was paid to Packlink for Evri's next day delivery service and proof of delivery, and £25 standard compensation from Packlink.

Further updates made to the WS / Court Bundle, and updated version attached:

• Added a Summary of Case section, including the points in BF's feedback
• Amends made to the wording in relevant paragraphs as per BF's feedback.
• Removed the previous paragraph 23 and replaced it with BF's feedback for new paragraph 23. However, as the £29.83 refund was provided by Packlink and not Evri, I don't think it is correct to say "it is clear that the defendant does recognise the claimant as an entitled third-party despite their denial in their defence because, for instance, as I have already stated at paragraph 2, they have made a partial reimbursement of £29.83"  - can this be re-phrased?

I am still not sure that the insurance requirement points need to be included in the WS in my case. I understand that the insurance points are there to pre-empt Evri relying on the insurance point in their defence. However, as Evri have not relied on it so far, is it worth just adding a paragraph in the WS to say that as Evri has not relied upon the insurance requirement, this point is not enforceable by Evri as part of this claim... or something along those lines?? 

That way, it is clear to the judge/court that Evri cannot use the insurance requirement in their defence of this claim and that the main issue in dispute for this claim is only on 3rd party rights / unfair contract terms... and then remove the rest of the insurance requirement points from the WS?

Draft - Witness Statement and Court Bundle redacted.pdf

[BankFodder]

I suggested a brief summary of the case at the top. You have written almost an entire side of A4.

The whole idea of this kind of approach is to make everything accessible and easy for the judge.

It's too long. Much too long.

When you use Packlink – do you know which delivery service they are going to suggest? Do you have a choice?

[BankFodder]

Paragraph 13 Both the defendant and Packlink were fully aware that the claimant (who is the sender of the parcel) and the addressee were the intended beneficiaries of the contract even though they were not direct contracting partners in the delivery contract.

The defendant was fully aware that there contracting partner, Packlink, was acting on behalf of a third party sender, the claimant and that ultimately the fee paid by the claimant to Packlink was also used to pay the defendant in consideration for their promise to carry out a successful delivery.

Paragraph 15 Both the claimant (who is the sender of the parcel) and the intended recipient form part of a class of person intended to benefit from the contract. It is clear that the contract between Packlink and the defendant was concluded specifically for their benefit and funded by the claimant and as such, it is clear that the sender is a discernible beneficiary.

New paragraph 41 – in particular, the judge in JAMIE BRADBURY VS UPS LIMITED, did not take into consideration that the claimant was not merely a gratuitous beneficiary of that delivery contract.
The claimant in that case had funded the entire transaction and therefore inherited third-party rights to sue on the contract if either of the two main contracting parties failed to carry out their obligations.

New paragraph 42 as the sender in this instant case, I am not a gratuitous beneficiary. I also funded the entire transaction between Packlink and the defendant and as such I am an entitled third-party within the meaning of the 1999 Act

Your existing paragraph 42 should be move down below the heading – The Defendant's Insurance Requirement although I'm not sure that references should be made to the insurance anyway.

We will have to think about that one

[occysrazor]

I will revisit the summary and shorten this done to keep it brief.

In regards to your question: When you use Packlink – do you know which delivery service they are going to suggest? Do you have a choice?

Thats correct that Packlink provide a list of couriers and delivery services to choose from, for e.g.

Royal mail 1st class

Royal mail 2nd class

Royal mail special delivery

Evri

Evri next day

DPD

Yodel

 

This is not an exhaustive list but is to give an idea of the variety of options presented by Packlink, and they didn't recommend or suggest just 1 delivery service for my parcel

[occysrazor]

The WS / Court Bundle has been updated to incorporate the amends suggested in post #166 - the updated PDF is attached and the amends are visible in blue font.

The Summary at the top of the WS has also been shortened considerably following the feedback in post #165.

In regards to the references should be made to the insurance, I also am unsure it should be included in my case. For now, it is in the WS and am happy to get any further steer on whether it needs to stay in or taken out.

Draft - Witness Statement and Court Bundle redacted.pdf

For ease of reference, attached is Evri's POC that was provided back in August 2023 to save searching through the earlier posts to find it. 

In the main, their defence in the POC, is that I contracted with Packlink and not with them, and therefore Evri are denying that I am entitled to claim against them under the Contracts (Right of third parties) Act 1999. 

As there is no mention of the insurance in their POC, this is why I am thinking that Evri cannot then rely on bringing up the insurance point in court as part of this claim.

Therefore I am considering whether the points on insurance should be removed from the WS - as mentioned above, happy to get further steer on whether they stay in or are taken out.

Evri Defence (POC) - Redacted.pdf

[BankFodder]

The summary is still much too long. You don't need to give a timeline. What are you just use the suggested summary which I posted above. Tell me if there is anything missing.

The thing that you've already set this out in your particulars of claim. We then gone on in your witness statement to say that there is no dispute on things. All you're doing is making a simple statement to put the judge in the picture in case they have forgotten. Don't forget the judge gets you a lot of cases and so a little memory jog would be great but they don't want to read the whole spiel.

Paragraph 10 The Defendant has agreed it has lost the claimant’s parcel while in their possession (page xx, court bundle) and there is no dispute that the parcel was not delivered, therefore there can be no dispute that the defendant is in breach of their contract to Packlink

Paragraph 32 I therefore further invite the court to rule that the defendant has breached their contractual obligations to Packlink.

New paragraph 18 – Packlink is fully entitled to sue the defendant for the breach of contract if they so wish but it seems that they have chosen not to do so.

New paragraph 16 it is clear that entitled third parties under the 1999 Act fall into two camps – gratuitous beneficiaries who have not paid anything towards the principal contract – and non-gratuitous beneficiaries whose payment of consideration has been the sole reason for the principal contract coming into existence in the first place.

New paragraph 17 It is submitted that the claimant falls into the second category is a non-gratuitous beneficiary as it is the claimant who was responsible and who funded the delivery contract between Packlink and the defendant.

New paragraph 18 – the contract between the defendant and Packlink was funded completely by the claimant. It seems that Packlink has no interest in suing the defendant for their breach of contract.

New paragraph 19 it would not be a just outcome for the defendant and Packlink to take the benefit of a contract which had not been fulfilled and at the expense of the claimant's who would be the sole party to suffer loss by the defendant's breach.

New paragraph 20 it is clear that the Contracts (Rights of Third Parties) Act 1999  was intended particularly to benefit third parties who had paid consideration but were unable to reclaim their losses where the direct contracting partners were in breach but declined to sue.

New paragraph 21 – any ambiguities as to who is entitled third-party within the 1999 Act revolve dearly around the status of gratuitous third party beneficiaries.

I'm sorry that this is getting rather more convoluted then you expected – and more than I expected as well.

However as I'm starting to explore the subject, there is more more to say.

Please will you do another version. What date must the bundle be filed?

Also, can you read the stepped argument carefully and let us know that you understand it or if there are any questions.

When a judge ceases, the judge will understand that it is a fairly technical reason legal argument – especially about the entitled third parties falling into two particular categories.
You will need to be very fluent with it

Quote

New paragraph 18 – Packlink is fully entitled to sue the defendant for the breach of contract but as they have suffered no loss, they are not entitled to do so under current English law

therefore it is anomalous that the person who has suffered the loss cannot sue while the person has suffered no loss has a right to sue except having suffered no loss they are unable to demonstrate that they have suffered any damage by the defendant's breach.

I would respectfully draw the courts attention to the report of the Law commission on privity of contract: contract for the benefit of third parties published in 1996.
I have no doubt that the court would not wish to read through the entire 203 page report but for the courts convenience I am including at page XXX of the bundle an extract from the contents page – page iv which outlines the arguments for reform and which were broadly accepted by Parliament when it passed the Contracts (Rights of Third Parties) Act 1999.

lc242_privity-of-contract-contr-the-benefit-of-third-parties iv.pdf

I'm sure you are getting in a mess with the paragraph numbers – me too!

Get your next amended version sorted out as best as possible and then we will try to deal with the paragraph numbers. There will probably be more are juggling but I don't think there's much more to add.

The extract from the Law commission report I think by and large says it all

[occysrazor]

Thanks very much for these amends and sharing the information on the privity of contracts. I've downloaded a copy of the full 203 page document on the privity of contract: contracts for the benefit of third parties (attached).

I was reading part IV which outlines the circumstances considered by the committee in which third party rights should arise. I've also come across these points in part III

• section 3.2 [the injustice to the third party]: A second argument focuses on the injustice to the third party where a valid contract, albeit between two other parties, has engendered in the third party reasonable expectations of having the legal right to enforce the contract particularly where the third party has relied on that contract to regulate his or her affairs.
   
• Section 3.3 [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 rule produces the perverse, and unjust, result that the person who has suffered the loss (of the intended benefit) cannot sue, while the person who has suffered no loss can sue.

I thought the above points are reflective of my case as

1. I have relied on the contract between Packlink and Evri to deliver the parcel containing the item to the recipient so that i can conclude the sale of the phone. By losing the parcel in their possession, Evri have not enabled me to conclude this sale or provided any evidence to demonstrate it was reasonable for them to lose the parcel.
    
2.  It is anomalous that the person who has suffered the loss cannot sue while the person has suffered no loss has a right to sue except having suffered no loss they are unable to demonstrate that they have suffered any damage by the defendant's breach - as per the feedback in post #172.

I therefore wondered whether the court's attention should also be drawn to part iii of the contents page for the privity of contracts?

lc242_privity-of-contract-contracts-for-the-benefit-of-third-parties - FULL DOC.pdf

[BankFodder]

Yes you have picked out the most useful paragraphs – and we will refer to those.

However don't attach the entire file to your bundle. The judge will hate you for it.

I think that the relevant contents page and the extracts will be more than sufficient.

I suggest that you don't bother to read the whole thing either – but if you do then seek psychiatric help

[occysrazor]

I will share the WS once it has been updated with the amends as soon as possible. I won't attach the entire file, as I agree that the Judge will likely be cursing me 

Re the date for filing the bundle, i have worked this out to be 24th May at the latest - this is 14 days before the hearing date of 7th June.

I am also considering removing the section on the defendant's insurance requirement from the WS - as mentioned above in post #169, in Evri's POC, their only point is that I contracted with Packlink and not with them, and therefore Evri are denying that I am entitled to claim against them under the Contracts (Right of third parties) Act 1999. 

As there is no mention of the insurance in their POC, this is why I am thinking that Evri cannot then rely on bringing up the insurance point in court as part of this claim.

One last point to mention - I have still not had success in getting through to the court to pay the £85 trial fee. I will keep calling until I get through to an operator to make the payment.

[BankFodder]

Isn't paying the trial fee something that you do online?

[occysrazor]

I have tried calling the court, and have also emailed the court to ask if payment can be made online - still waiting for a reply. 

I haven't found any information that shows the payment can be made online and used the old MCOL system as this claim started in July 2023 last year. The old system does not give any option to make a payment for the trial fee. 

If there is a website on which payment for the trial fee can be made, I would be grateful if someone can point me to this.

[dx100uk]

you ring northants bulk and simply state you wish to pay XXX fee for claim XXXX they put you through.

18 hours ago, occysrazor said:

In the main, their defence in the POC,

a defence is not a POC!!

it's in reply to your POC.

[occysrazor]

Hi, what is Northants bulk?

I've just googled this which finds bulky item/waste collections by Northamptonshire council 

 

[dx100uk]

click it!