Evri lost 2 parcels approx. £600 (part 2)

[BankFodder]

No. The defence is different.

Their defence paragraph 2.7, 2.8, 2.9, 2.10 – for the first time makes reference to an alleged term between the Packlink/EVRi contract which apparently specifically excludes the effect of the Contracts (Rights of Third Parties) Act 1999.

If this is true then it is very likely that they will have closed that loophole because the 1999 act specifically allows itself to be excluded by an express term within the principal contract

Quote

1(2)Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

https://www.legislation.gov.uk/ukpga/1999/31/section/1

I think that you will have to do ask the court to require them to provide evidence by way of presenting their contract and also the date that this new amendment was inserted.
I understand that your claim refers to an item which was lost a year or so ago. These give us the date. We would certainly want to know that this amendment predates the date when you first contracted with Packlink to send the item.

I would want to say to the court that in the absence of their willingness to confirm with evidence the date that this contractual amendment was made, that the court should assume that this was a recent amendment and was therefore not in force at the time you made your contract.

We have third-party defences on this sub- forum which are fairly recent and there has been no mention of this exclusion of the 1999 act.
I think we can take it that this is something that they have put together very recently.

Secondly, even if they want to exclude your third party rights, it does not absolve them from the negligent handling of your item and in respect of an action for negligence you have first party rights. You don't have to rely on third party rights – although of course, you didn't allege negligence in your original claim. We didn't advise you to do so. Maybe shortsightedly we didn't foresee this contractual amendment.

Of course assuming that this contractual amendment is true – although I expect it has only been added recently – what they are saying here is that nobody in the United Kingdom who makes any contract with any parcel delivery company using Packlink will have the right to bring a claim for lost or damaged or even stolen parcels.

These people have lost their moral compass. It is shabby treatment of ordinary customers who pay their money and who repose their trust in these parcel delivery companies.
No wonder that the Paralegal Children are now ashamed to sign off these documents with their own names.

In terms of parcel tracking information – apparently it has been destroyed according to their own data protection policy. That's their business. It's got nothing to do with you and they can't use this to frustrate the six year limitation for bring a breach of contract action or the three-year limitation period for bringing an action in negligence or other tort.

There reference once again to the exclusion of the 1999 Act but this time apparently in the contract between you and Packlink – is irrelevant because the exclusion has to be in the commercial contract between Packlink and EVRi – which they have referred to in their paragraph 2.7 et cetera of their defence.

I'm assuming that you propose to go ahead with this case.

Please let us know when you respond and we will go forward.

In the meantime, I suggest that you write a letter to EVRi.

Referred to their paragraph 2.7 et cetera and ask them for a copy of the contract and confirmation of the date on which the exclusion of third party rights term was included in it. Tell EVRi that if they do not answer or if they refuse that this will be brought to the attention of the judge.
Tell them also that you notice that they say that they have destroyed data in line with their data protection policy. Inform them that they do not appear to have disclosed this data protection policy to their customers. Please will they forward you a copy of it and once again if they failed to respond or if they refuse that you will bring this to the attention of the judge as well.

I suggest that you post a draft of the letter here so we can have a look

 

 

[jk2054]

No, the defence of packlink excluding has been seen before. I remember it.

 

I think it was on the 844 thread or the model kit one but I could be wrong

Edited May 9 by jk2054

[jmxo]

Hi,

Attached I've compiled evidence concisely that they are aware the parcel was lost. On page 6 is emails in OCT 2023 where they offer to settle for the previous parcel and I remind them on record that I have an identical case with this parcel 2. Not sure if I should have attached their response where they acknowledge but only want to concentrate on settling the current claim since the footer of their emails says The content of this email is confidential and intended for the recipient specified in message only. It is strictly forbidden to share any part of this message with any third party, without a written consent of the sender.

Interestingly, I've also put an email I received from their support after i sent the letter of claim where they claim they only keep records for 6 months. And then after the recent claim response saying they only keep records for 12 months. Thought this was a bit contradicting, is that usable for anything?

 

parcel 2 evidence redacted.pdf

Edited May 13 by jmxo
reattaching

[BankFodder]

Thank you for this and the attached documents.
It all looks fine. Don't worry about their confidentiality statement. This is normal practice and they probably don't even understand what it really means. They can't impose a legal duty of confidence upon you in this way and there is no reason in equity why you should be bound by a moral duty of confidence – for instance, you didn't eavesdrop this information only didn't find an obviously confidential document belonging to someone else on the street.

I'm a little bit concerned about their claim that they have a contractual term with Packlink which  expressly excludes third-party rights. I understand from the Cagger above that this has occurred elsewhere but I haven't seen it and certainly I'm not aware that it has been relied upon in court yet.

We shall certainly start advising people who come here to sue in negligence as well as contract by way of alternative

[jmxo]

Ok! Do you still want me to work on that letter you discussed above in post #26?

[BankFodder]

Yes, I don't think there is any downside to doing this. If they decline then you can say that in your witness statement

[jmxo]

Hi, below is a draft of the letter

Address:

Hugo Martin
Director of Legal and Company Secretary
EVRi Parcelnet Ltd trading as Evri
CAPITOL HOUSE,
1, CAPITOL CLOSE
LEEDS
LS27 0WH

REQUEST OF CONTRACTS
    
Dear Sir/Madam,

I am writing in regards to the ongoing small claims case ____. In your Defendant’s response you make reference to a pre-existing commercial agreement between yourselves and Packlink (2.7).

In that, you claim to have a clause removing customers third party rights under the Contract (Rights of Third Parties) Act 1999.

I would like to request a copy of this contract and confirmation of the date on which the exclusion of third party rights term was included in it. If you refuse to provide this then I will be henceforth referring to that refusal in the claim, including to the Judge.

I also notice that you have destroyed tracking information due to "lapse of time" in line with your data protection policy (2.12). Can you share where this data protection policy is disclosed to customers?

I also ask you to forward you a copy of that data protectiono policy, and again if you refuse to provide this then I will be henceforth referring to that refusal in the claim, including to the Judge.

Kind regards,

Edited May 20 by jmxo

[jk2054]

Just a typo change that I'd make for the last line.

Maybe also add something that says

"I assume you will be fully aware that you cannot rely on a clause of a contract that you do not produce."

[jmxo]

Contract request email sent, will also send it as a letter to their hq

Should I wait for a reply or proceed with the case? I have until June 10th to respond to their defence in mcol

Edited May 25 by jmxo

[jk2054]

proceed with the case

 

We've seen a packlink case here already and we're confident it'll be fine.

[jmxo]

Hello guys,

Received an email that the mediation call is booked for the 14th next week

[jk2054]

good good

[jmxo]

Hey guys, just wanting to double check since it's been a a year since my last claims mediation, this is the best stance to have during the mediation right?:

"I am willing to be flexible by not taking Evri to court to get a judgement against  them and i'm willing to settle now.
but I'm not here to compromise on my rights or the amount i'm owed as I have all the rights in this claim and Evri know this, despite what they may say now.
I do not wish to waste the courts time and our time, it's Evri who are being inflexible and they are just wasting evryones time if the are not just paying up now. they should just offer the full £ and we can proceed

The function of mediation is not to persuade you to give up some of your rights. The function of mediation is to help you obtain what you are entitled to without having to go to court and without having to inconvenience or trouble anyone further. The benefit to the defendant is that they are saved the expense and the inconvenience of going to court as well as having a judgement against them and a transcript of the judge's reasoning which will be used in further similar cases."

I can also bring up that 1. they no showed this court in our previous mediation call and wasted all our time, and 2. they already settled in full with me last year on an identical parcel and case so we're going down the same road?

Edited Wednesday at 16:56 by BankFodder
Edits in red

[BankFodder]

Have a look at my addition in red.

Also – good idea, your final points. Put it all in. Make it clear that you will explain this to the judge as well if it goes to trial.

[jmxo]

Thank you, the mediations in a couple of days so hopefully they show up this time. I'll update this thread after how it goes

[jmxo]

Update: they actually showed up to mediation this time.

The mediator seemed pretty understanding that I had a previous claim with Evri last year where they didn't show up to mediation and ended up settling in full before court. And how evri are infamous for following this "dragging out protocol" even when they will lose.

Evri spoke the usual speil of my contract is with packlink not them, to which i briefly explain to the mediator the Rights of Third Parties Act 1999 etc.

Best they could offer was a "goodwill guesture" of £20 plus covering the court fees so £55 total. Said they have an "allocated settlement amount per day". the mediator could already tell it wasn't going nowhere so we had no deal.

[BankFodder]

Thank you. They insisted that they claim they have an "allocated settlement" figure per day.

Make a note of this and make sure it gets into your witness statement and onto the judge. This is a scandal and even more evidence of the abuse of the system.
It has nothing to do with justice. It is purely economic's for them.

Once again, insist on seeing their contract with Packlink. You shouldn't take their word for anything without evidence.

Also standby as I will post a link to a similar case where a very interesting discovery has been made about Packlink's terms and conditions and how Evri are responsible to you in any event.

We are applying for judgement on that. It will take about six weeks. I'm sure it will be available by the time you go to trial.

Also, it is outrageous that they wasted your time and the mediator's time agreeing to compromise when they already had a fixed sum in mind. This is not about compromise, this is about setting a condition from which they will not move.

This is an abuse of the court process. It is an abuse of the mediation process. Make sure it all goes into the witness statement. The judge needs to know

 

[BankFodder]

If I haven't referred to it before then please check out this thread

another case where the claimant contracted directly with Packlink for a courier delivery service carried out by Evri.

Please read this thread very carefully and eventually you will get to a point where the claimant – our OP – discovered some interesting terms and conditions and has referred to them in his case.

He incorporated these into his witness statement and was given judgement – not on the basis of rights of third parties but on the basis of direct responsibility.

I would suggest that use the witness statement as a model although we will want to see it before you file it off.

When you find the particular post with the witness statement, please can you post a link to it here as well as a copy of the witness statement because I don't have the time to look for it at the moment and the thread is rather long. However it is very important to you and you should go through it very carefully indeed.

We have applied for a transcript of the judgement and hopefully it will be along in six weeks or so.

As soon as we receive it we will make it available on this sub- forum.

[jmxo]

Yep, I would  have brought up the other things like asking for their contract and receiving no response etc. but the mediation phone calls were rather short. Evri just said the contract was not with them (i said 1999 act response etc.) and the goodwill offer thing. Whole process took about 10 minutes in total.

Seems like they don't even want to negotate in mediations anymore. "they're only given a certain amount that they can agree to in mediation per day" I mean its hard for me to say if thats the mediator paraphrasing or aa direct quote from evri

I will look through that thread and share what I find, also for what its worth I also have everything I made for the previous claim WS and bundles etc. that I can tweak for this parcel, since it did go almost all the way to court and is a virtually identical case. that + this new stuff you shared above should be helpful to me