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By occysrazor · Posted
Hearing held today in court. I attended in person and Evri had an advocate attend on their behalf to defend their position that my contract is with Packlink and not with them. I also provided a copy of Evri's terms and conditions which explains that a contract is entered into when a parcel is sent with Evri. The judge pointed this out to the Advocate and agreed there is a contract between me and Evri under the Ts and Cs. The judge explained that while Packlink are responsible for organising the delivery of the item, it is Evri who are responsible for handling the goods and delivering them, and therefor Evri has a responsibility to handle the goods with reasonable care and skill. So am pleased to say the judge found in my favour. Hearing lasted about 75mins. Evri has been ordered to make payment within 21 days. Also nice to meet @jk2054 in person. -
Good morning, I just wanted to update you on the situation. I have visits piling up with my current employment and they need doing before I finish at the end of this month. I am moving to Wiltshire in 3 weeks for a new job helping care homes with their Dementia patients. I tried to work it out and at a guess I will be doing about 20-25,000 miles a year. So need a vehicle that can cope with that mileage, my old car would have done it easy but 🤷♂️ I have taken out a loan and got a friend to find me a reliable car that can cope with the miles and hasn't been written off in the past. I phoned Adrian flux to see if I could use the last months insurance on a new car I have bought, the girl I spoke to phoned Markerstudy and asked them but they said no, my new car doesn't have any modifications. I had an email from someone who saw one of my appeals for information, they live near the site of the accident and know a nearby farmer who has a security camera at his entrance that catches the traffic and specifically registration plates as he has been robbed before. They said they would reach out for me and see if he still has the data. Unfortunately it wont catch the scene of the crash. The Police phoned me and said they were closing the report I made, even if they found footage of the vehicle at the time I said the actual incident would be my word vs theirs. My first response was I am sure google maps would show that they turned around at that location which would verify my version of events, but upon reflection I do understand, I have seen people doing make up with both hands while driving, eating from a bowl steering with their knees and veering all over the place. I am sure some of these people go off the road and claim that someone forced them off. Markerstudy phoned me yesterday to say that my car is now at Copart, the £80 tank of Vpower diesel was emptied on entry to the site for safety reasons, which I get but it sucks. It is awaiting being assessed and shouldn't be too long, which is a relief. I am really glad things do not seem to be going the way of the other stories and they seem to moving quickly. However I was informed that my car was a structural write off before I bought it - this destroyed me, I was almost sick. and this is going to affect any offer of money - after hearing the first statement this didn't affect me. They need to wait for the assessor to check it over but it is highly likely to be written off and the maximum they can offer is £2300. I was desperate for a car as I was working for an agency at the time, no work no pay, and did not do a vehicle check because I didn't know about them. The seller did not tell me that it had been structurally written off, he told me that it had the front wing damaged while parked and was repaired at an approved repairer. Markerstudy records state that it was sold at auction, no record of repair at an approved repairer. I bought it bank transfer with hand written receipt. It gets worse. It turns out my airbags should of gone off. For some reason they are not working. I think we can figure out why. If I had hit that car head on and had no airbags. Some good news. I can arrange a time with Copart to go and take my stereo equipment and any personal items that are left in the car only. I cant live without music and need quality sound, my speakers and amps are Hertz and JLaudio, (no I am not a boy racer with booming subs, I am an audiophile on a budget) I was really worried I wouldn't get them back so this is a huge relief for me. It is stuff I have built up over years of saving and collecting. Everything to do with the vehicle and mods I have declared need to stay to be assessed. The accident has gone as a fault on my record, I have to remove 2 years NCB which means I still have some to declare which is good. So it appears at this point that it may be resolved quickly, not in the way I was hoping, but not as bad as I presumed it was going to be based upon that tow truck drivers attitude and behaviour and the horror stories I read. I am not going to buy the car back and try to make money with all the parts on it, I don't have the time or energy. I may need an xray on my back and neck. The whole situation has left me feeling physically sick, drained and I need it done. The lesson learnt from this - My conscience is 100% clear, my attitude to safety and strong sense of personal responsibility - A rated tyres even if on credit card, brake fluid flush every year, regular checks of pads and discs, bushes etc, made avoiding what I believed to be a certain broadside collision possible. Get a dashcam (searching now for the best I can afford at the moment) - Research your insurance company before you buy - Pay for total car check before you go and see a car and take someone with you if you are not confident in your ability to assess a vehicle. Thank you to everyone here who volunteers their time, energy and information, it is greatly appreciated. You helped my sister with some advice a while ago but we weren't able to follow through, she is struggling with long term health conditions and I ended up in hospital for a while with myocarditis, when I got out and remembered it was too late. I am going to make a donation now, it is not a lot, I wish I could give more, I will try to come back when things are on a more even keel. Take care -
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By Man in the middle · Posted
It seems the solicitor has got your case listed for this “appeal” but not for the Stat Dec(SD). You need to ensure you can perform your SD on the day. If you are able to make your SD in court, the situation you are in now is more straightforward than if you made your SD via a solicitor. You have been convicted of two offences (and two were dropped) via proceedings of which you were not aware. The way to remedy that is to perform an SD. No appeal is necessary (nor is it available via the magistrates’ court). If you are able to make your SD this is how I see it panning out: You will make your SD to the court. The court must allow you to make it as it will have been made within 21 days of you discovering your convictions. You will then be asked to enter pleas to the four charges again. At this point you should plead not guilty to all four but make the court aware that you will plead guilty to the speeding charges on the condition that the FtP charges are dropped. The prosecutor will be asked whether or not this is agreed. In my opinion the overwhelming likelihood is that it will be. If it is you will be sentenced for the two speeding offences under the normal guidelines. In the unlikely event it is not accepted, the speeding charges will be withdrawn (they have no evidence you were driving). You have no viable defence to the FtP charges and so should plead guilty. This will mean 12 points and a “totting up” ban (as you have already suffered). You can present an “Exceptional Hardship” argument to try to avoid this (explained below). Because of this, I don’t see any need to make an argument to ask to have any ban suspended (pending an appeal to the Crown Court) unless and until you are banned again. The only reason I can think the solicitor suggested this is to secure a (Magistrates') court date. I was surprised when you said you had an appointment so quickly; a date for an SD usually takes longer than that. However, if you can use it to your advantage, all well and good. I can’t comment on the argument that the two speeding offences were committed “on the same occasion” as I don’t have the details. That phrase is not defined anywhere and is a matter for the court to decide. It’s an interesting thought (and only that) that such an argument could equally be made for the two FtP offences. If the requests for driver’s details arrived at your old address at the same time, with the same deadline for reply, it could be argued that you failed to respond to hem both “on the same occasion” (i.e when the 28 days to respond expired) and so should only receive penalty points for one. Hopefully you won’t need to go there. I think you have information about avoiding a “totting up” ban. But here’s the magistrates’ latest guidance on "Exceptional Hardship" (EH) which they refer to: When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following: It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn. Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence; Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive. If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account. Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable; Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others. I must say, I still do not understand what the solicitor means by “As a safeguard we have lodged the appeal and applied to suspend your ban pending appeal due to the time limit for being able to automatically appeal without getting leave of the Judge.” When they speak of “leave of the judge” I assume they mean they have lodged an appeal with the Crown Court. I don’t know what for or why they would do this. It seems to follow on from their explanation of the “totting up” ban. If so, I’m surprised that the Crown Court has accepted an appeal against something that has not yet happened. But as I said, i is no clear to me. Only you can decide whether to employ your solicitor to represent you in court. If it was me I would not because there is nothing he can say that you cannot say yourself. However, I am fairly knowledgeable of the process and confident I can deal with it. That said, I do have a feeling that the solicitor is somewhat “over egging the pudding” by introducing such things as appeals to the Crown Court which, in all honesty, you can deal with if they are required. I can only say that the process you will attempt to employ is by no means unusual and all court users will be familiar with it. I can also say that I have only ever heard of one instance where it was refused. In summary, it is my view that it is very unlikely that your offer to do the deal will be refused. If it is accepted, you may be able to persuade he court that the two speeding offences occurred "on the same occasion" and so should only receive one lot of points. Let me know the details (timings, places, etc) and I'll give you my opinion. Just in case your offer is refused, you should have your EH argument ready. Whether it's worth paying what will amount to many hundreds of pounds to pay someone to see this through is your call. Let me know if I can help further.
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Post in Suing a parcel delivery company when you don't have a direct contract with them – third-party rights Copy of judgment available
BankFodder posted a post in a topic,
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
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