Suing a parcel delivery company when you don't have a direct contract with them – third-party rights Copy of judgment available

[BankFodder]

A very common scenario is that people wishing to send a parcel to someone else use a parcel broker/price comparison service to identify a suitable courier company – rather than go directly to the courier company.

This means that when you make a contract to send a parcel, your contract is with the parcel broker and not with the parcel delivery company. This happens especially with people who send parcels because of eBay sales.

Typical scenarios are:
Through eBay, you make a contract with Packlink who recommend a number of couriers and you select one, typically Yodel or EVRi.
Through the Internet, you make a contract with Parcel2Go who recommend a number of couriers and you select one, typically Yodel or EVRi. DPD or DHL.
Through the Internet you make a contract with ParcelHero who recommend a number of couriers and you select one, typically Yodel or EVRi. et cetera.

The common element in all of the scenarios is that you make your contract directly with the parcel broker. You don't have a contract with the delivery company.

In English contract law this poses difficulties because you can only sue somebody for breach of contract if you have a contract directly with them.
It's called "privity of contract" – which means that a contract is private to its contracting partners and third parties don't have the right to sue if one of the two partners breaches their obligations

In Britain, the rule of privity has always been very strict. Unlike most countries in Europe and elsewhere in the world, with third parties have very often been allowed to bring an action against one of the contracting partners if it could be shown that that third party has suffered a loss as a result of the breach.

In 1996 the Law commission produced a report which examined privity of contract in English law and the position of beneficial third parties.
The report is attached to this post. It's terribly long – 208 pages – and unless you have something wrong with you, I would suggest that you avoid it or go and see a therapist.

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

as a result,, in 1999, Parliament passed the Contracts (Rights of Third Parties) Act 1999. This act of Parliament can in certain circumstances give you the rights to sue on a contract just as if you were a directly contracted partner.

In order to be entitled to third-party rights you must be a discernible beneficiary of the contract. In other words you must be somebody who's actually identified in the contract or you must clearly be somebody who is entitled to benefit under the contract.
Our view is that if you are the sender or the addressee of a parcel then you are clearly somebody who is intended to benefit under the parcel delivery contract. There can scarcely be any argument about this.
The other requirement is that there must be no evidence in the contract between the parcel delivery company and the broker that they did not intend for the contract to be enforced by third parties under the 1999 Act.

Generally speaking when you make a contract through ParcelHero or P2G , this doesn't pose any problem because you can sue these parcel brokers directly. They are domiciled within the United Kingdom jurisdiction and it is easy to issue a claim against them and to force them to engage in the litigation.

The situation with Packlink is very different. Packlink are domiciled in Spain and this means that if you want to bring a court action against them, you're going to have to do it in the Spanish courts – and this would be extremely complicated, possibly expensive – and certainly long winded.
Packlink used to be domiciled in the United Kingdom and then suddenly for no obvious reason they packed up shop and moved to Spain. Anybody who suspects that this might have been done simply to make it more difficult for the victims of last parcels to be able to sue them in the English courts, should go and say a prayer, asked for forgiveness and wash their mouth out with soap.
This would be a very evil suspicion and unworthy of any right thinking member of society  .

We have helped lots of people bring cases against mainly EVRi – but some of the others – even though those people did not have direct contracts with those courier companies, but instead they relied upon their third-party rights under the Contracts (Rights of Third Parties) Act 1999.

In every case, the courier company has howled with indignation and protested in their defences that there was no direct contract with them and that the rights of third parties act did not apply.
However, in not a single case where they prepared to put their money where their mouth is and go to court. Instead they preferred simply to settle out of court at the mediation stage – thereby avoiding a judgement against them which would confirm that the claimant did in fact have third-party rights.

Until now.

We are pleased to say that recently at Brentford County Court we helped somebody to win his case on the basis of his third-party rights. This happened on 12 July 2023 and we have applied for a transcript of the judgement – but that won't be available – probably not before September.

However, this is an important milestone in the battle against the courier company scammers – and as soon as we receive the transcript of this judgement we will make it available in this forum and on this thread to be included in people's court bundle in preparation for their court cases against courier companies who tried to deny you your third party rights.

At the moment, although we don't have a transcript, you should certainly cite this case if you are going to trial and explained to the judge that no transcript is available yet because it has only recently been applied for.

If you need this information then please flag it up in your thread and we will make sure you get whatever is necessary.

Meanwhile – watch this space.

 

****We now have the transcript of the judgement – see below****



 

[BankFodder]

Mr Hashim Farooq v EVRi PARCELNET LIMITED

Claim no.  365MC637

12th of July 2023 – Brentford County Court

 

 

[BankFodder]

The judge in the above case has declined to allow the transcript to be provided.

We are not sure why this is. There is a suspicion that possibly EVRi objected – no surprises there.

Since then, a Freedom of Information Act request has been made and the County Court/judge has failed to comply.
A complaint has been made to the information Commissioner and the information Commissioner has found that the court/judge is in breach of the act and they have been threatened with certification for contempt in the High Court.

 

IC-264963-R3X5 - Signed Decision Notice_Redacted.pdf

 

 

 

In the meantime, if you want to apply for your own copy of this judgement then here is a partially completed EX107.

The form will have to be completed by you and then emailed to Brentford County Court.

If you succeed in getting a copy of the transcript then we will reimburse you.

If you want you could try this simply for a challenge.

ex107-static-eng-04.21 (1).pdf

[BankFodder]

We have finally managed to obtain the transcript of this case.

The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

Frankly I don't think that is any accident.

One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
This is good ethical practice.

It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

 

OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf

[BankFodder]

When you make a claim against a parcel delivery company even though your contract was with the parcel delivery broker, you will have to rely on the Contracts (Rights of Third Parties) Act 1999.

In order to claim that you have third party rights in the contract, you will have to do persuade the judge that you are a discernible beneficiary meaning that you are named as a beneficiary to the contract or you fall within a class of person intended to benefit from the contract.

I take it seems pretty obvious to everyone that if you are the sender or the receiver of a parcel is pretty clear that the broker and the parcel delivery company realise that you are benefiting from the delivery.
After all, the sender paid for the delivery to occur. The receiver as their name and address written on the parcel. It is beyond belief that the broker and the delivery company are simply sending parcels to each other because they have nothing better to do.

Despite this, if you sue EVRi or any other parcel delivery company when you have contracted with the broker, they will try to convince the judge that they (the parcel delivery company) did not know that you were intended to be a beneficiary of the contract!!

Somehow or other, in a recent case involving UPS, the judge actually did accept that. A really extraordinary result and we are hoping to get the judgement transcript before too long.

Anyway, if you are suing EVRi because you used Packlink who conveniently domiciled in Spain and therefore out of reach of the UK justice system, the children in the EVRi legal department will actually try to say – hand on heart – that you should sue Packlink because you had no direct contract with them, EVRi – and that the rights of third parties act does not apply because you are not discernible beneficiary!

I suppose they all think that we are stupid. And the judge as well.

I bought an item on eBay and I have just received a notification sent by EVRi telling me that my "Packlink parcel is on its way".

If you ever needed any evidence that EVRi knew that you were an intended beneficiary of the contract – then use the redacted email message which I have posted below.

Evri 3rd party_Redacted.pdf

Explain to the judge that this is a redacted message but it is absolutely typical of what EVRi sends out to the recipients of parcels and it is slamdunk evidence that they are fully aware that there are other beneficial interests in their delivery contract with Packlink.

Another little point is that every routinely say that because the contract was made with Packlink, they do not have detailed tracking information.
This is so blatantly untrue it's quite extraordinary that a judge has not criticised them for saying it.

When you make a contract with Packlink, Packlink never sees the parcel. They simply administer/broker the contract and it is EVRi which is fully in control of the parcel at every step of the journey.
If you have a case which comes to court then you should point out that this assertion by EVRi must be blatantly untrue. There is no other possibility.


 

[BankFodder]

And here is a screenshot of a notification to a recipient that a parcel is on its way – and a downloadable PDF of the screenshot showing once again the tight relationship between EVRi and Packlink – once again removing any doubt that they are fully aware that the contract between them are made precisely for the ultimate benefit of the beneficiaries – the sender and recipient who are very clearly the intended end users. Discernible beneficiaries.

 

Evri Packlink_Redacted.pdf

 

[BankFodder]

And here is a screenshot showing yodel's close relationship with Packlink and the fact that they know that third parties are involved

at

Yodel packlink 3rd party.pdf

[BankFodder]

If you are suing as an entitled third-party under the Contracts (Rights of Third Parties) Act 1999 then if you are referring to a contract between a parcel delivery company and a broker, you will be suing in the position of one of the parties to that contract.

So for instance, if you are suing EVRi on the basis of the delivery contract which they made with Packlink, then once you use your third party rights, you will effectively be suing as if you were Packlink.
In other words, a disadvantage of relying on third party rights in a business contract is that you forfeit your consumer rights and you then sue as a business.

(This is why in almost every case, it is worth suing the parcel broker directly because you can then rely on your consumer rights which are stronger than business rights).

As we know, Packlink has conveniently upped sticks to Spain so that they are out of reach of claimants in the UK and so you will have to sue the parcel delivery company directly and you will have to rely on your third party rights under the 1999 act.

So this means that you will no longer be able to rely on section 57 and section 72 of the Consumer Rights Act because that act only helps consumers. It doesn't help businesses.

Instead, you will have to rely on the Supply of Goods and Services Act 1982 and also on the Unfair Contract Terms Act 1977.

Section 13 of the supply of Goods and Services Act requires that a business carrying out a contractual promise carried out using reasonable care and skill.

Under the act, if a term of the business contract (the contract between EVRi and Packlink, in this case) expressly excludes the effect of section 13 then it means that EVRi can carry out the contract NEL how and Packlink doesn't have any claim against them – and that means that you as an entitled third-party doesn't have a claim against them either.

However, The Unfair Contract Terms Act 1977 section 10 makes it unlawful to evade contractual responsibility by means of a secondary contract and any other exclusion clauses such as limitation of liability et cetera must be fair.
Apart from anything else, exclusion clauses must not be unreasonable. The test of reasonableness includes whether or not the victim (You) would have been able to protect themselves by insurance.

This is a bit of a grey area for people claiming third party rights against the parcel delivery insurance industry and frankly we would eventually have to see what the courts make of it.

It may be that people operating through Packlink are exposed to some rather harsh rules – and anyway, we would really recommend that nobody uses Packlink to organise the delivery of their goods. They are operating on eBay then they should contract directly with EVRi or Royal mail – anyone but not through a foreign domiciled parcel broker.

One thing in the favour of entitled third parties at the moment is that you are relying on the contract between EVRi and Packlink but of course nobody has seen the contract. And if EVRi want to argue that it is reasonable for them to exclude liability or to exclude the whole effect of the rights of third parties act, then they need to disclose their contract.

So far, as far as we know, nobody has ever seen it and whilst they withhold it, then frankly they have no arguments to make.

If anybody ends up in a trial with EVRi on the issue of third party rights in respect of Packlink in one of the first things you should do is to ask them where is the contract. You can even ask the EVRi representative have they ever seen the contract.
I'll wager very good money that the answer is No. They haven't seen it.

If you do happen to get side of the contract then you also need to find out what was the date of the version which you have been shown.

 

Also on the test of reasonableness, if there really is a term of the EVRi/Packlink contract which says that EVRi will not be liable for any failure by them to exercise reasonable care and skill in their delivery obligations, then I think that the proper argument to the judge is that if this is permitted then it really undermines the whole purpose of contract.

It becomes almost possible to make a contract where you promise to do something and then later on your terms and conditions you say that if you break your promise then you are responsible for anything at all.

It's like saying that I promise to do X in return for your money – but with your fingers crossed behind your back!

Our EVRi and Packlink and anybody else really going to ask the judge to say that there is good business practice and that it is reasonable even between businesses?

It undermines the whole purpose of entering into a contract


 

[BankFodder]

And here is another screenshot showing the clear relationship between UPS and packlink. This is an email sent to the addressee of a parcel. Sent by UPS. Refers to Packlink and informs the recipient/addressee that a parcel delivery has been rescheduled.
Impossible to say anything other than both Packlink and UPS are well aware of the intended beneficiaries of the delivery contract.

UPS Packlink email.pdf

[BankFodder]

Here are two more notifications from EVRi to the recipients of parcels that their parcel deliveries are underway and will be arriving soon.

One is a parcel which was organised by QVC.

Evri - QVC.pdf

The second one is a parcel which was organised by Packlink.

 

Evri - Packlink.pdf

It is clear that EVRi are fully aware that there is a third party beneficiary – the recipient. It would be extraordinary if they try to say that yes, they were aware that the recipient was a beneficiary of the contract but they were completely unaware that there was a third party sender.

[BankFodder]

Claiming For A Breach Of Contract Where You Are Not A Direct Contracting Partner

The contract is private to the contracting parties – “Privity”

The general rule is that only the direct parties to a contract are allowed to claim if there is a breach.

This is a very old rule and it is called “privity of contract” which means that a contract is private to the contracting partners.

“Privity”can cause injustice

This has caused some difficulties and even some injustice where a third party expecting to benefit from the contract might be expecting to receive something, if one of the parties to the main contract doesn’t fulfil their side of the bargain, you, the third party beneficiary can’t do anything about it - and the contracting party who did keep their promise is the only person who can sue and maybe they simply don’t want to.

This could be even more unjust if you are the third party who funded the entire arrangement between the parcel broker and the delivery agent. The parcel was lost. Both the parcel broker and the delivery agent are not out of pocket – only you are out of pocket– but under the “Privity of Contract” rule you are not allowed to make a claim against the delivery company which lost or damaged your parcel.

The Law Commission Report on Privity Of Contract And Third Party Rights

In 1996 there was a report from the Law commission which recommended that in some circumstances third parties should be able to sue under contract even though they were part of the contract.

In particular, the Law commission highlighted this injustice:

 

[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 [privity] rule produces the perverse, and unjust, result that the person who has suffered the loss … cannot sue, while the person who has suffered no loss can sue.

 

As a result, Parliament passed a law called the Contracts (Rights of Third Parties) Act 1999

This gives a third party in some circumstances the right to sue for a breach of contract even though they were not a direct contracting party.

As a third party, are replacing one of the main parties

When the third party uses this third party right, then they have to sue as if they were one of the direct parties to the contract and this means that they are bound by the same terms and conditions of that contract.

This means that if it was a consumer contract then they can sue as the consumer with consumer rights. If it was a commercial contract, for instance between a broker and a delivery company, then you have to rely on your commercial rights.

Most parcel delivery brokers are in the UK so you can sue the broker directly and this is always the best thing to do. However, there are one or two which are not in the UK. They are outside the jurisdiction of the UK courts and so if you arrange your parcel delivery through a one of those brokers and if your parcel is lost or damaged and if they refuse to reimburse you, suing the broker can be a difficult business and probably impossible.

The only thing you can do is to sue the delivery company which lost the parcel but as you didn’t contract directly with them, you will have to rely on your “third party rights”.

What the delivery company will say

If the delivery company tries to defend the claim, they will probably say that although they did lose the parcel, you don’t have a right to sue them. They will say that you must sue the parcel broker because you made your contract directly with them – but of course we know that that is impossible because your parcel broker isn’t in the UK.

You will have to state in your claim form and also explain to the judge that you are entitled under the 1999 Act because it was clear to the broker and to the delivery company that the delivery contract was made specifically for your benefit as the sender of the parcel and also for the benefit of the addressee – who is also a third party – and that it was even you who paid for the delivery anyway.

What rights will you use?

In a contract where you organised with Packlink, for example, to send a parcel using Evri, Packlink are based in Spain, you would have to sue Evri using the same commercial rights as enjoyed by Packlink.

So in a commercial contract instead of relying on the Consumer Rights Act 2015, you would rely on the Supply of Goods and Services Act 1982 which also requires that a company selling a service must exercise reasonable care and skill and if they don’t then they are in breach.

Also, in a commercial contract you would rely on the unfair terms provisions in the Unfair Contract Terms Act 1977 and which includes as an unfair term any attempt to restrict or limit liability without any good reason.

If you are using your third party rights to sue on a consumer contract then you would be able to rely on the Consumer Rights Act 2015.

Making a small claim as a third party is pretty straightforward

The the process for bring a small claim as an entitled third-party is the same as any other small claim and pretty straightforward.

The arguments are slightly different – but that’s all

            Some examples of people who might be excluded by the “Privity” rule but are saved by their third party rights

• ·        Your friend takes you on holiday. They organise it and pay for it. Your friend’s holiday is great but your room is damp and rat infested. Your friend doesn’t want to claim against the holiday company. You took time off work for this holiday which you won’t get back but you didn’t have a contract with the holiday company.

            You would sue the holiday company as third party consumer and rely on your consumer rights.

 

• ·       Your friend uses a parcel broker based abroad to send you a mobile phone with £500. And the parcel arrives, it contains shoes. Your friend has moved to Australia permanently.

          You don’t have a contract with the parcel broker so you would sue them as a third party to a consumer contract and                 rely on your consumer rights

 

• ·        You get taken out for an expensive meal. Your host the table and pays for the meal but you get food poisoning. Your host had a great time and hasn’t actually lost anything.

             They have no loss to claim but you don’t have a contract with the restaurant.You would sue as a third party to a                         consumer contract and rely on your consumer rights.

 

• ·        You sell a mobile telephone on eBay and send it to your purchaser using an overseas parcel broker to organise the delivery through a UK delivery company. When the parcel arrives the purchaser finds that it contains some books.

                You sue the parcel delivery company as a third party to a commercial contract and rely on your commercial rights