Evri lost my Ebay parcel £844 - court claim issued

[jk2054]

5 hours ago, BankFodder said:

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

No its done by the local CC.

OP should email the CC and ask for a call to pay.

They’ll call him back 

I would Advise against what DX said with  calling northampton and asking to be put through.

 

Just email the local CC and they will call you directly.

Saves plenty of time

 

Ive paid many trial fees in the past few months for various courts, alwyas email and ask for clal back

Edited April 7 by jk2054

[occysrazor]

@jk2054 thanks, I have emailed the court today asking for a call to pay the fee.

I have received an automated email response that due to an increased workload, they are currently progressing work at approx. 29 days.

So looks like it could still be a further month before I hear back from the court (hopefully sooner if workloads reduce). I will keep on with calling the court and hope to speak to an operator to make payment.

Payment needs to be made by 10th May latest or the claim will then be struck out. Fingers crossed the fee is paid before that happens.

[BankFodder]

Of course part of the increased workload is made up of parcel delivery companies including EVRi simply wasting the county courts time raising obstacles to legitimate claims which they know that they will have to pay out in the end

[occysrazor]

Attached is the updated WS which incorporates the feedback from post #167 including referencing to Part III and Part IV of the Privity of Contracts extract, and also a shortened case summary.

@BankFodder i agree with your feedback that it is getting more convoluted and the paragraph numbers are a mess. I have tried my best to sort out the paragraphs/numbering in the attached WS.

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

Draft - Witness Statement and Court Bundle redacted.pdf

[jk2054]

8 hours ago, occysrazor said:

@jk2054 thanks, I have emailed the court today asking for a call to pay the fee.

I have received an automated email response that due to an increased workload, they are currently progressing work at approx. 29 days.

So looks like it could still be a further month before I hear back from the court (hopefully sooner if workloads reduce). I will keep on with calling the court and hope to speak to an operator to make payment.

Payment needs to be made by 10th May latest or the claim will then be struck out. Fingers crossed the fee is paid before that happens.

They're always quick to take money don't worry.

[BankFodder]

Summary of case

The defendant refuses to reimburse the claimant for the loss of the mobile phone valued at £839.99 even though the defendant contracted to deliver the phone safely to a UK address.

Paragraph 1 This reimbursement was made unilaterally and I did not agree to this reimbursement or accept this by way of full settlement

paragraph 11 Packlink specifically arranges for its customers’ parcels to be transported by a an appropriate parcel delivery service chosen by the customer, in this case myself, the claimant

paragraph 13 The defendant was fully aware at all times that the parcel they had agreed to transport belonged to a third party sender on behalf of whom Packlink was acting.

New heading after paragraph 15

The Contracts (Rights of Third Parties) Act 1999 
paragraph 16 the 1999 Act provides exceptions to the doctrine of privity of contract and entitle certain third parties to sue on a contract even though they were not a direct contracting party.
Paragraph 17 it can be said that entitle third parties under the 1999 Act fall into three categories:

1. specific gratuitous beneficiaries who have not paid anything towards the principal contract,
2. gratuitous beneficiaries who fall into "a class" of third party who might be deemed to have beneficial rights and the contract
3. non-gratuitous beneficiaries/beneficiaries for value – whose payment of of consideration has been the sole reason for the principal contract coming into existence in the first place.

New paragraph – it is submitted that the claimant is a non-gratuitous beneficiary/beneficiary for value as it is the claimant who is responsible for bringing the principal contract into existence and who funded the delivery contract between Packlink and the defendant.

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

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

New heading just before the old paragraph 23

The Report Of The Law Commission On Privity Of Contract: Contract For The Benefit Of Third Parties – Published In 1996.

Paragraph 23 and 24 – unchanged

new paragraph 25 I specifically draw the courts attention to the following headings in the law commissions contents page which will give some indication as to the objectives of the proposed Privity of Contract reforms and which were accepted by Parliament in passing the new legislation in 1999:

PART 111: ARGUMENTS FOR REFORM 

1. The Intentions of the Original Contracting Parties are Thwarted
2. The Injustice to the Third Party
3. The Person Who Has Suffered the Loss Cannot Sue, While the Person Who Has Suffered No Loss Can Sue
4. Even if the Promisee Can Obtain a Satisfactory Remedy for the Third Party, the Promisee May Not be Able to, or Wish to, Sue

New paragraph 26 I also draw the courts attention to the following sections contained in the Law commission report which explain the rationale behind the Law commissions recommendations for the creation of a new act of Parliament to cause inroads into the doctrine of Privity

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.

 

Subheading just before Old paragraph 31

Conclusion as to defendant's position

old paragraph 31 as has been stated earlier on in this witness statement, the defendant has not produced any arguments whatsoever as to why the claimant should be excluded as an entitled third-party.
The defendant has simply given a bland denial that the claimant is entitled to exercise third-party rights.
Therefore it is the defendant's position that

1.  in the absence of any explanation the defendants denial should be disregarded, but in any event,
2. it is respectfully suggested that the court accepts that the Law commission report in 1996 which broadly set out the objectives to be achieved by the 1999 Act, and which objectives were accepted by Parliament resulting in the passing of the legislation.
3. It is respectfully submitted that it is in the interests of justice as outlined by the 1996 law commission report that third-party rights be accorded to the claimant.

New heading above old paragraph 33 –

Contractual Obligations

[BankFodder]

Okay, more additions I'm afraid – but we have lots of time and I know that you are working very hard but I think it's important to put together a good document – we will be using it again in the future for other cases. I'm sorry because you are the one who is putting in the spadework for people in the future.

Blame EVRi – because they are the ones who are trying to put you to this trouble so that they could avoid paying you out your claim. That's the what they do.

So have a look at what I have put. I'm trying to now stop and in summer subheadings which will make things easier as well.

When we finally finish it – not too long now (I promise!) – We will then try to shorten it a bit.

[occysrazor]

Changes (in blue font) made to the WS to incorporate the feedback in post #181 - Updated WS attached for review.

I find The subheadings help make the WS easier to read / understand.

I just wanted to clarify whether this point should say it is the claimant's position instead of the defendant (in orange below):

old paragraph 31 as has been stated earlier on in this witness statement, the defendant has not produced any arguments whatsoever as to why the claimant should be excluded as an entitled third-party.
The defendant has simply given a bland denial that the claimant is entitled to exercise third-party rights.
Therefore it is the defendant's position that

 

I think there are paragraphs that may be making the same point (e.g., paragraphs 21 & 28, and 23 & 31) and a shortened WS will be welcome once the WS is finally finished.

I'm still waiting for a call from the court following my email so that the trial fee can be paid. Will keep this thread updated.

Draft - Witness Statement and Court Bundle redacted.pdf

[BankFodder]

Well 

31 minutes ago, occysrazor said:

 

I just wanted to clarify whether this point should say it is the claimant's position instead of the defendant (in orange below):

old paragraph 31 as has been stated earlier on in this witness statement, the defendant has not produced any arguments whatsoever as to why the claimant should be excluded as an entitled third-party.
The defendant has simply given a bland denial that the claimant is entitled to exercise third-party rights.
Therefore it is the defendant's position that

 

Well spotted!!

[jk2054]

OP - call 0116 222 5704 tomorrow morning.

Leicester County Court Contact Details, Email, Cases, Daily & Archive Hearing List Records (thelawpages.com)

 

[BankFodder]

Paragraph 2 – has this been admitted?

Third party rights enjoyed by the claimant That the Claimant Is Entitled to Rely on Third-Party Rights under the Contracts (Rights Of Third Parties) Act 1999

paragraph 11 domiciled in Spain which in turn entered into a contract organised the delivery with the defendant

paragraph 12 – delete

paragraph 13 – delete

Paragraph 19 no interest in suing the defendant for their breach of contract.

paragraph 25 I have no doubt that the court would not wish to read through the entire 203-page report but for the court’s convenience, I am including an extract from the contents page of the report (on page 51, court bundle). Part III and Part IV of this report outlines the arguments for reform which were broadly accepted by Parliament when it passed the Contracts (Rights of Third Parties) Act 1999.

The Law commission report is over 200 pages long and so for the sake of brevity, I am simply referring an extract from the contents page (page 51 blah blah) and two extracts which I believe in this case are the relevant portions of the report. Part III and Part IV of this report outlines the arguments for reform which were broadly accepted by Parliament when it passed the Contracts (Rights of Third Parties) Act 1999.

Paragraph 26 The extract from the contents page I specifically draw the courts attention to the following headings in the Law Commission’s contents page report which will give some indication as to the objectives of the proposed Privity of Contract reforms and which were accepted by Parliament in passing the new legislation in 1999:-
 

paragraph 28 Packlink is fully entitled to sue the defendant for the breach of contract. It is anomalous that the person who has suffered the loss cannot sue while the person who has suffered no loss has a right to sue but may choose not to do so

Paragraph 30 Both parties were aware of the involvement of the claimant and the intention behind the contract between Packlink and the defendant      claimant 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 to claim not to be aware of the presence of the defendant as a third-party beneficiary.

Paragraph 31 delete

Paragraph 33 therefore it is the claimant's position

paragraph 34 – by way of further evidence that the defendant does recognise the claimant as an entitled third-party

Paragraph 35 however by losing the claimants parcel which was properly addressed and packaged…

Paragraph 36 delete

Paragraph 37 delete

paragraph 39 liability where they lose a parcel that is in their possession and which they have contracted to deliver safety to its destination.

Paragraph 40 delete

Paragraph 43 delete

Paragraph 44 delete

Paragraph 49 delete

paragraph 50 – did the judge really say this? I haven't looked at the case carefully enough. Please could you post up the quote from the case. Thanks

Paragraph 54 delete

Okay if you could produce the next version please and we will go on from there.

I've started suggesting a load of deletions which will shortened the statement by at least a couple of pages I hope and I have asked you a question about your paragraph 50

[jk2054]

paragraph 30 should be claimant as 3party no?

[occysrazor]

Amends made to WS to incorporate feedback from posts #186 - 187. Attached is the updated WS pdf and amends are in blue font.

@BankFodder answers in orange to your Qs:

• Para 50 did the judge really say this? I haven't looked at the case carefully enough. Please could you post up the quote from the case. 
  Yes, the wording used in that paragraph is from the court transcript (bold in extract below): 
  22. EVRi would have the option, should they wish to do so, to bring a claim against Parcel2Go to recover any award that the Court may make today but it would be unfair and I am required to take into account the Consumer Rights Act and consider the general fairness in this matter for Mr Farooq as a consumer and as a user of the services provided by EVRi in considering this matter as a whole.

• Para 2  has this been admitted? This has not been admitted. This paragraph has now been amended in the attached WS.

 

@jk2054 thanks for providing the CC number. I tried it a couple of times but it just rang out. I then rang the usual CC number and still got no where. Will keep trying.

Draft - Witness Statement and Court Bundle redacted.pdf

[BankFodder]

Paragraph 5, six, seven, eight, nine – delete

New paragraph X – the defendant has asked for evidence of certain values and I have provided these in the bundle pages XX to XX

I think you can do away with the entire section on the defendant's insurance requirement.

If they start referring to that then we will deal with it on the basis that first of all they haven't refer to in their defence but secondly this is a matter which only Patrick could raise and that if EVRi raised the issue they would effectively be referring to the contract between yourself and Packlink – in other words they will be referring to 1/3 party contract.

Even if you do end up referring to the insurance – you can't refer to it under the consumer rights act 2015. You have to refer to it as an unfair term intended to exclude or limit liability under the unfair contract terms act 1977.

So get rid of the defendant's insurance requirement completely but store it away in your memory – but not with references to the 2015 act.

Your previous paragraph 50 was a reference by the judge at to an attempt to rely on the consumer rights act even though the claim in that case had forfeited the benefit of the act by suing the courier instead of the parcel broker with whom they had a direct contract.

The claimant in that case made a bad mistake by seeing the courier. The parcel broker was domiciled in the UK and they should have sued them.

 

So let's have a look at the next version – maybe the final version

[jk2054]

try calling that number at 08:00, 08:30 and 09:00 exactly

[occysrazor]

Updated WS attached which incorporates the feedback in post #189:

• removed entire section on the defendant's insurance requirement.
• paragraphs 5-9 with all values now merged into 1 paragraph (paragraph 5) and remaining paragraphs deleted.
• To remove any remaining references to the Consumer Rights Act, the previous paragraph 50 has been removed as it referred to the point in the Farooq vs EVRi transcript where the judge is attempting to rely on the consumer rights act even though the claim in that case had forfeited the benefit of the act.

@BankFodder I do see your point about referring to the insurance as an unfair term intended to exclude or limit liability under the unfair contract terms act 1977, and this is supported by paragraphs 29, 30, and 32 in the WS, which highlight that liability cannot be excluded or restricted as per Sections 2 and 3 of the 1977 Act.

I have kept a copy of the previous draft WS with the section on defendant's insurance requirement so that I can still memorise the key points in it without referring to the Consumer Rights Act. 

I think the WS sits alot better now and that we may need to consider the order of the paragraphs so that it flows more concisely.

Thank you for all the help in getting the WS to this stage!

Draft - Witness Statement and Court Bundle redacted.pdf

[BankFodder]

Probably best to check back over the weekend

[BankFodder]

In your index you haven't referred to the bits of the Law commission report that you are going to include

Where it says – defendant's evidence – none. – You should wait until the last two or three days before submitting this bundle and if you still haven't received anything from EVRi then you should put something like "the defendants have failed to file any court bundle or evidence as of this date – XXX date"

Summary – .2 that the claimant did not contract directly with them

Paragraph 1 partial reimbursement of £29.83

I think generally, instead of the words "there is no dispute" it would better to say – "the defendant does not dispute"

new paragraph just above paragraph 7 – the defendant disputes that the claimant is entitled to rely on the third party rights under the 1999 Act but has failed to give any explanation

paragraph 8 – delete

Paragraph 10 – entitles

Paragraph 14 – It would not be a just outcome in the interests of justice for the defendant and Packlink


Paragraph 20 – put your quoted extracts from the report in my italics – including the heading

Paragraph 21 – again extracts in italics

Paragraph 22… sue except but may choose not to. This is exactly the scenario referred to in the Law commission report in 1996

Paragraph 23 – on the basis of a commercial contract

Heading – Conclusion As To Claimant's Position in respect of third party rights

Heading – the defendant' s Contractual Obligations

Paragraph 28 – mandates   requires

New paragraph 29 – the defendant is invited to provide an explanation as to how they lost the claimants parcel

Paragraph 31 – this really amounts to a conclusion and should be moved further down, I think.

Paragraph 32 – seems to be generally a repetition of other arguments. See if you can remove it and check that the whole thing still makes sense.

Paragraph 33 – this is a bit of a mess. It also repeats a lot of the other arguments. I'm wondering whether it is necessary. Keep in mind and see what you can do.

Paragraph 34 – simply use the case name/case number and date as a subheading rather than a paragraph – then continue the paragraphs

Paragraph 38 – same thing, use the case name et cetera as a subheading

Paragraph 41 a lot of repetition here. These paragraphs outline why I am entitled to exercise my rights as a third-party under the 1999 Act because the contract between the defendant and Packlink was intended to benefit third-parties like myself. As the sender of the parcel using the defendant’s parcel delivery service, this would make me a foreseeable, non-gratuitous, and intended beneficiary eligible for protection under the 1999 Act.

Let's see how all that lot works in the next version. It's down to 9 pages. Let's see if we can get it to 8 pages – or maybe even seven.

[occysrazor]

Updated WS attached incorporating the above feedback (post #193).

Re the bits of the Law commission report that are not referred to in the index, I was under the impression that only the extract from the contents page was being included. I have now included Sections 3.1 - 3.4 in the index which are referenced in paragraphs 21 - 22.

The WS has reduced to 8 pages and the re-structuring helps it to flow a lot better now, with a conclusion on my position provided at the end of the WS. 

In this conclusion, paragraph 41 has been added to invite the court to agree that I am allowed to enforce my rights against Evri and to hold them accountable to pay the claim value and 8% interest on this value.

This is my first ever WS so I'm just being upfront in the WS to the court/judge as I don't know if amounts awarded (where relevant) by a Judge/court includes 8% interest. 

I couldn't see any other place (apart from the POC) where this should be stated in the WS or if at all.

Draft - Witness Statement and Court Bundle redacted.pdf

Edited April 14 by occysrazor

[jk2054]

I assume your aware or this bur your WX needs to be black not. color

[BankFodder]

If you didn't specifically claim interest in your particulars of claim then you won't be able to claim it

[jk2054]

he did claim interest afaik

[occysrazor]

Hi, yes i did claim interest in the particulars of claim. I just thought it needed to also be mentioned in the WS - if it doesn't need to be in WS, then happy to take it out.

@jk2054 yes, blue font is only used in the draft WS so the amends are easily visible. Final version of WS will be in black font.

[jk2054]

Just a few suggestions - 

I wouldn't be listing the attachments in your index. Just say exhibits then have a page of an exhibit index right before the exhibits start

move the defendant's evidence bit above the the previousy reported cases. I believe if you look at the macbook case, you will see similar

I also think for the issues in dispute and not in should be short bullet points not full on sentences (for example point. 8 paragraph 3 isnt an issue in dispute or not its just an explanation - the list of dispute/not in dispute should be short and concise. Information about the points should be in your wintess statement.

Also on page 3 you switch between bulet points and numbers, I think you shoud be using numbers throughout so you can refer to it much easier. 

Also I'm not sure why you have put your issues in dispute as part of your witness statement. I would be putting this as a seperate page before your witness statement.

point 25  - I would add something that says something similar to "The Defendant cannot rely on a contract they have not provided to exclude their liability"

I also see lots of switching between I and the claimant. Its a mere point of how it reads but I think you should stick to one or the other not use them interchangeably.

Also, I would say that your WX should have your name at the bottom above the signature.

I'd also change the wording on page 8 to be just "Exhibits to witness statement of YOUR NAME"

Just my thoughts and vast majority are just about the formation rather than the content

 

31 minutes ago, occysrazor said:

 I just thought it needed to also be mentioned in the WS - if it doesn't need to be in WS, then happy to take it out.

It doesn't need to but it makes no difference.

 

What you will find is that if the judge finds in your favour, they will award the sum and ask you if you want anything else, it is at that point you claim interest and your expenses (if applicable) such as lost work etc

[occysrazor]

Thanks @jk2054 I'll incorporate your feedback in #199 into the WS.

I'll stick to just the claim value and interest, as I understand that it is not simple to quantify other expenses such as time spent, lost work, etc.