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    • Hi, despite saying you would post it up we have not seen the WS or EVRis WS. Please can you post them up.
    • Hi, Sorry its taken me so long to get round to this, i've been pretty busy today. Anyway, just a couple of things based on your observations.   Evri have not seen/read my WS (sent by post and by email) as they would have recognised the claim value is over £1000 as it includes court fees, trial fees, postage costs and interests, and there is a complete breakdown of the different costs and evidence. I'd say theres a 1% chance they read it , but in any case it won't change what they write. They refer to the claim amount that you claimed in your claim form originally, which will likely be in the same as the defence. They use a simple standard copy and paste format for WX and I've never seen it include any amount other than on the claim form but this is immaterial because it makes no difference to whether evri be liable and if so to what value which is the matter in dispute. However, I have a thinking that EVRi staff are under lots of pressure, they seem to be working up to and beyond 7pm even on fridays, and this is quite unusual so they likely save time by just copying and pasting certain lines of their defence to form their WX.   Evri accepts the parcel is lost after it entered their delivery network - again, this is in my WS and is not an issue in dispute. This is just one of their copy paste lines that they always use.   Evri mentions the £25 and £4.82 paid by Packlink - Again, had they read the WS, they would have realised this is not an issue in dispute. They probably haven't read your WS but did you account for this in your claim form?   Furthermore to the eBay Powered By Packlink T&Cs that Evri is referring to, Clauses 3b and c of the T&Cs states:  (b)   Packlink is a package dispatch search engine that acts as an intermediary between its Users and Transport Agencies. Through the Website, Users can check the prices that different Transport Agencies offer for shipments and contract with the Transport Agency that best suits their needs on-line. (c)  Each User shall then enter into its own contract with the chosen Transport Agency. Packlink does not have any control over, and disclaims all liability that may arise in contracts between a User and a Transport Agency This supports the view that once a user (i.e, myself) selects a transport agency (i.e Evri) that best suits the user's needs, the user (i.e, myself) enters into a contract with the chosen transport agency (i.e, myself). Therefore, under the T&Cs, there is a contract between myself and Evri.   This is correct but you have gone into this claim as trying to claim as a third party. I would say that you need to pick which fight you wan't to make. Either you pick the fight that you contracted directly with EVRi therefore you can apply the CRA OR you pick the fight that you are claiming as a third party contract to a contract between packlink and EVRi. Personally, I would go with the argument that you contracted directly with evri because the terms and conditions are pretty clear that the contract is formed with EVRi and so if the judge accepts this you are just applying your CR under CRA 2015, of which there has only been 2 judges I have seen who have failed to accept the argument of the CRA.   Evri cites their pre-existing agreement with Packlink and that I cannot enforce 3rd party rights under the 1999 Act. Evri has not provided a copy of this contract, and furthermore, my point above explains that the T&Cs clearly explains I have entered into a contract when i chose Evri to deliver my parcel.    This is fine, but again I would say that you should focus on claiming under the contract you have with EVRi as you entered into a direct contract with them according to packlink, as this gives less opportunites for the judge to get things wrong, also I think this is a much better legal position because you can apply your CR to it, if you dealt with a third party claim you would likely need to rely on business contract rights.   As explained in my WS, i am the non-gratuitous beneficiary as my payment for Evri's delivery service through Packlink is the sole reason for the principal contract coming into existence. I wouldn't focus this as your argument. I did think about this earlier and I think the sole focus of your claim should be that you contracted with evri and any term within their T&Cs that limits their liability is a breach of CRA. If you try to argue that the payment to packlink is the sole reason for the contract coming in between EVRI and packlink then you are essentially going against yourself since on one hand you are (And should be) arguing that you contracted directly with EVRi, but on the other hand by arguing about funding the contract between packlink and evri you are then saying that the contract is between packlink and evri not you and evri.  I think you should focus your argument that the contract is between you and evri as the packlink T&C's say.   Clearly Evri have not read by WS as the above is all clearly explained in there.   I doubt they have too, but I think their witness statement more than anything is an attempt to sort of confuse things. They reference various parts of the T&Cs within their WS and I've left some more general points on their WS below although I do think  point 3b as you have mentioned is very important because it says "Users can check the prices that different Transport Agencies offer for shipments and contract with the Transport Agency that best suits their needs on-line." which I would argue means that you contract directly with the agency. For points 9 and 10 focus on term 3c of the contract  points 15-18 are the same as points 18-21 of the defence if you look at it (as i said above its just a copy paste exercise) point 21 term 3c again point 23 is interesting - it says they are responsible for organising it but doesnt say anything about a contract  More generally for 24-29 it seems they are essentially saying you agreed to packlinks terms which means you can't have a contract with EVRI. This isnt true, you have simply agreed to the terms that expressly say your contract is formed with the ttransport agency (EVRi). They also reference that packlinks obligations are £25 but again this doesn't limit evris obligations, there is nothing that says that the transport agency isnt liable for more, it just says that packlinks limitation is set. for what its worth point 31 has no applicability because the contract hasn't been produced.   but overall I think its most important to focus on terms 3b and 3c of the contract and apply your rights as a consumer and not as a third party and use the third party as a backup   
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    • 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.
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      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
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Winderbray/JCF PM/PCB Lawers Claimform - Service charge arrears - Refused Payment Plan - Now N244 for SJ+Strike Out.


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Hello

i am looking for some help and advise.

My partner and I along with our daughter live in a flat of a block of 12 and are in arrears of service charge for the past few years. Our block underwent major external works as a result of not being maintained very well for a long period of time by the managing agents. The works were about £20k per flat on top of the annual service charge.

Due to Covid (my partner lost his job) and the cost of living crisis we have been unable to pay in full. We were speaking to the managing agent and trying to pay as much as we could afford and explained our circumstances. I also lost a parent suddenly during covid and couldn't have a funeral. This is still hurting me now. The managing agent then appointed solicitors who again we tried to reach an affordable payment plan with but they refused. We still continued to make payments. We had almost reduced the arrears down to 50pct in the past year, which has been a struggle. 

There was e-mail communication and various threats of action. The last e-mail which unfortunately went into my junk folder I did not see until late where again legal action was being threatened.

Having returned from my mothers last night, we found a Claim form in the post from Northampton issued on 14th February.

I haven't been able to sleep all night as I am anxious and worried and do not want my family thrown out of our home and onto the street. I must avoid a CCJ as this will impact my job which will not help anybody.

Appreciate any advice as to how we should proceed. We really want to pay this but need more time and I can't afford to get a CCJ.

Thanks 

Penny

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We paid what we could in terms of normal service charge.

There have been many other works previously such as electrics and boundary walls so we have had a lot of expense.

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I think mainly the additional levy. The service charge was inceased by £5000 for several years on top of the normal service charge which was £2000.

Although we tried to agree a payment plan, nothing was formally agreed but we paid what we could.The solicitors refused several offers but we tried to maintain a regular amount and paid a small lump sum from a loan.

We have continued to make payments to the managing agents up to now but don't know going forward because of this claim.

Should a letter before action have been sent to both of us in the post rather than just an e-mail to me which wasn't headed Letter before action ?

I believe that they went through the correct section 20 consultation process.

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I believe that they went through the correct section 20 consultation process.

Yes we have a mortgage and are slightly behind too due to the cost of living.

The monthly payment went up by £700 pm due to the interest rate rises so it has been a real struggle.

We are in communication with them and have a plan to get back on track.

I am at work until late so can't dig out any additional paperwork.

claim form 150224.pdf

I am at work until late so can't dig out any additional paperwork.

 

.

 

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@Andyorch Ok understood, many thanks for clarifying the timelines

@lolerz I believe that there have been end of year balancing charges one which was around £800.

None of the residents are happy with the managing agents and we feel that they are ripping us off. 

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Which Court have you received the claim from ? MCOL Northampton 

Name of the Claimant ?  Winderbray Ltd

How many defendant's  joint or self ? Joint

Date of issue – 15th Feb 2024

Particulars of Claim

What is the claim for – the reason they have issued the claim? 

1. The defendants owe the claimants the sum of £12,630 for arrears of service charge part of which has been outstanding and demanded since 1st April 2019 pursuant to a lease dated 4th September 1998.

2.The claimants claim interest under section 69 of the County Courts Act 1984 at the rate of 8% per annum from 1st April 2019 to 14th February 2024 on the said sum the interest being £1,009

and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £2.77.

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 01/04/2019 to 14/02/2024 on £13,632

and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £2.77

 

What is the total value of the claim? £14,414

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ? Only e-mails threatening forms of legal action and nothing headed Letter before Action
 

Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? No

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? No

Is the debt showing on your credit reference files (Experian/Equifax /Etc...) ? No

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. By the Freeholder

Why did you cease payments ? Service charge demands were excessive due to works carried out on the building. We paid what we could as affected by yhe pandemic and cost of living crisis

What was the date of your last payment? End of Jam 2024

Was there a dispute with the original creditor that remains unresolved? No

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? We explained our situation to both the managing agent and solicitors and tried to negotiate an affordable payment plan which was refused, so continued to psy what we could.

Please let me know what other documents are required. It may take several days and some documents might be at my mothers house which is a 220 mile round journey.

Appreciate everyone's responses today.

Will try to get a good nights sleep as have felt terribly anxious today and work is very busy too.

 

Thanks

 

1Penny

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Hello

 

Very frustrating but the e-mail that was in my junk folder has been permanently deleted and I cannot retrieve it. I think it had an attachment.

Should I ask the managing agent or the solicitors for a copy of an up to date statement ?

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Ok many thanks, I will call the managing agent today and ask for them to send me one.

I will try to look for any other docs that might be useful, but these might be at my mothers house.I won't be able to get there until the weekend though.

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  • lolerz changed the title to Winderbray/PCB Lawers Claimform - Service charge arrears - Refused Payment Plan

I proposed £200 per month initially which was refused and with help proposed £400 a month plus any additional amounts as and when we were able to. This was also refused.

We maintained payments as much as possible along with some larger ones.It has been really tough with the cost of living crisis coming straight after Covid. I feel my health (mentally and physically) is suffering as a result of the stress.

Our boiler broke down over Christmas which caused an unexpected bill but some larger payments were made in the last year so we are showing that we are doing what we can.

 

Regards

1Penny

 

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I think I still have some e-mails, but some went to junk and got auto deleted, including the last e-mail before the court claim arrived.

Last year we were threatened that our file would be sent to collections, then several threats of legal action and even forfeiture of the lease. 

I will check for any letters, but mostly communication was e-mail only and some telephone calls in the early stages, but then they wouldn't answer my calls.

Work is hectic at the moment so will look for docs over the weekend.

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Hello Lolerz

Many thanks for chasing.

I only arrived at my mothers late this afternoon

Will find the docs tomorrow.

Can you remind md which ones would be useful ?

Andyorch advised in an earlier post that we had until Monday 4th March ?

I will upload more docs tomorrow afternoon.

Many thanks, really appreciate the help

1Penny

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Hello Lolerz

I have uploded some pages of the lease and service charge statement of acc for year ended 31 Mar 2023

Working on some other paperwork but only have my phone so finding it slow.

Lease Documents merged.pdf

Attached are some other letters including the last arrears notice that I could find from the managing agents and Sect 20 notices.

The external works to the building were long overdue with the last external works being completed 15 years earlier around 2008.In 2018 and 2019 we had electrical work and a boundary wall rebuilt at significant cost which wiped out the sinking fund.

We feel that the freeholder was not ensuring that the managing agents were maintaining the building to the level required. The fact that the external works were left so long has led to substantial service charge demands over the past 4 years during unprecedented times with the pandemic followed by the cost of living crisis.

Many thanks

1Penny

 

Edited by lolerz
PDFs Merged
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Hello Lolerz

 

Many thanks for your reply and help so far.

I need to drive back home now (2 hrs), so will read your response in more detail tonight and will reply if I have any questions.

I couldn't find any letters from the solicitor unless I have it filed somewhere else. I think that the managing agent only charged for stage 2 & stage 3 letters as per the statement of account (£36 & £72). There were numerous arrears letters but it seems that no charges were added.Have I provided you with enough info ? Do you need me to copy the body of an e-mail example received from the solicitors last year, perhaps the one threatening us with forfeiture of the lease ?

They said in their e-mails that if we didn't pay the outstanding balance by a certain date then they would commence legal action without further notice. I am very sure that they didn't send us a letter in the post headed "letter before action".

I will get the AoS sent online tomorrow.Also need to do the CPR 31.14 request, so will get this sent off by tomorrow or Tuesday at the latest.

Will read up on formation of a defence. The defence would need to be sent 33 days from the date of issue, so is it 18th March 2024 very latest ?

Much appreciated

 

1Penny

 

 

 

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