I have now received notification of a  Full hearing set for 4th December.

Preparing for that hearing I have found a document on Ebay that states quite clearly that anyone using the Ebay/Packlink service to select a specific carrier  referred to as a Transport Agency  automatically enters into a Contract with the Transport Agency not Packlink when they signup as described in the document and pay the carriage charge. 

See my message of the 29th August 12.35 which has a link to the document on Ebay.

A short extract is quoted below. It is well worth reading the whole document as the relationship between the USERS ( ie people taking up one of the various options provided) and Transport Agencies is spelled out quite clearly in more than one place.

(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

Replies .... see red TEXT

The message from the "Transcription Agency" – I take it, is the result of a contact from you asking them what has happened to the transcript and they have kindly copied you into a message which they have sent to the court. Is that correct? YES

This is the transcript of the decision which was made in your pre-trial hearing?? YES

Your notes documents represents your feelings about how your approach to the revelation of the Packlink document should be handled. This correct? YES

We should wait for the Farooq transcript which I hope will be along in September. OK I will delay contacting DPD

In fact I was going to suggest to you that you might be kind enough to make your own separate application for that transcript from the judge. We will supply you with all the details and you can explain that the transcript has been specifically requested by a judge in your own case. This should move it along. I am happy to do this.

I will precis the previous pdf and post directly.

Probably too long winded as usual. Previously you indicated  it would/might be disadvantageous to approach dpd but wait until nearer an expected Court Date. The Notes pdf was an attempt to explain why I intend to deviate from your advice. The query to dpd.pdf is the text of the communication I intend to send to dpd which is amended from the one posted a short while ago.

The quote in blue was bringing you up to date with where the application for a Transcript  request re hearing on 15th August 2023. 

Hope that makes sense. 

Please see extract below which is self explanatory.

Good afternoon Birmingham Court, 

Can you advise whether the court records show whether there was a judgment given for the above case on the above date. All we can locate is the discussion around and the drawing up the order, not a usual judgment. If there is no record of a judgment being given, does the requestor have permission to have the whole hearing? We can then advise the requestor (CCd in) accordingly of the next steps. 

Natalie Goodson

Operations Manager / MoJ Contract Manager
The Transcription Agency, a VIQ Solutions Company

Attached are two pdfs which I hope make sense. Notes to.pdf hopefully will explain the second one.

notes to.pdf query to dpd.pdf

I suspect this is the link you are looking for

https://support-ebay.packlink.com/hc/en-gb/articles/360004768420#h_70e65b07-b4ea-49bf-b891-b549e4e4fd7c

Please confirm.

Part of your last message is missing at the moment it reads " In particularvisit this post and download and read the attached document. To post down from th......." 

Please can you supply the missing text so I understand what you are asking me to do please.

OK I've made a diary note.

No... the only bundle I sent to the court and the defence was the one prior to the initial Dispute Resolution Hearing on 15th August and I am currently awaiting a transcript of the Judges summary from that hearing. No date has been set for the formal hearing which I gather is likely to be in December.

The Judge at the hearing 15th August has asked that if the transcript from the Farooq case ( Brenford CC) 12th July is received prior to early November to forward a copy for his attention.

Thank you for the reply and advice.

Is there a risk though. If I take the #extra# bundle with me is the court obliged to accept it at such short notice? Second if during the proceedings I am asked by the Judge or the Defence " when did you become aware of this additional information?" If I answer truthfully is'nt the Court likely to ask why wasn't the information in the main court bundle ? Could that disadvantage me?

On a wider point as Packlink/ebay would appear to step aside from involvement other than as introducers, it follows that all ebay users who appoint a carrier via ebay/packlink have direct contracts with the carriers.  Has this come up in any other reported cases to your knowledge?

just wondering if you have had any further thoughts?

Hope you have had a good holiday. And yes I have received the funds via PayPal thank you.

I appreciate you wont have studied the recent pdf as yet but attach an additional file of  a possible approach to DPD. It may or may not be a sensible route to go down so I await your further advice.

query.pdf

Thanks for the above.. please can I commit you to a little reading. I was bored earlier this afternoon and decided to look at the ebay site. 

A document which I have copied is the T&C of Packlink, It made interesting reading see paragraphs highlighted in yellow and copies as extracts below.

DPD provided a copy of Packlinks T&C which states that Spanish Law is applicable . However reading their document on ebay it states English Law is Applicable. 

Next and maybe most important is that in the the section headed

3 General reproduced as below see b) which indicates the creation of a contract as between me and DPD which they have denied.

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. 

So doesn't this mean by signing up with dpd via Packlink a contract is created? Something DPD have denied. Maybe I have misunderstood which is why I've attached apdf of the full  document copied from ebay.eBay Delivery Powered by Packlink Terms and Conditions.pdfeBay Delivery Powered by Packlink Terms and Conditions.pdf

Form completed and sent to Birmingham County Court admin office. You were correct The Transcription Agency can do the work. Will update you in due course .

Do I need to begin familiarizing myself with any other legislation for example areas dealing with unfair contract terms?

oK will do.

See attached pdf which appears to show which transcription service can operate in which area.

list1.pdf

Attached should be a  part completed EX107.

Please see A10 Epiq according to page 7 of the Guidance Notes (pdf attached) appear to be the only company authorised to provide transcriptions for Birmingham County Court.

EX107 B4 is blank as I need to check the spelling of the Judges name. That is in progress.

EX107 see C3 Civil, Family and Tribunals. I am assuming I need to tick just Judgement. is that correct

EX107 see C5 I intend to tick within 12 working days is that correct.

EX107 C9 is the following OK " This having been A Dispute Resolution Hearing which did not resolve matters there is to be a future hearing . No date has been fixed as yet but the Judge indicated it would likely be set for December 2023" 

EX107_static_0823pagecomp.pdf EX107GN_0823.pdf

One thing I didn't mention was that DPD acknowledged /agreed that the package had been delivered to the wrong address and that there would be no need in the future to produce the Witness Statement from the intended recipient. I'll complete the form tomorrow morning and send it to you before submitting it.

Have downloaded EX107. Do I need to order transcript of whole proceedings or judge Summary or other specific element listed on EX107.

Will complete tomorrow and raise any questions with you tomorrow morning..

22 minutes ago, StoneCross said:

Unfair Contract Terms Act 1977

I dont think he was voice recording but a lady sitting behind us ( Claimant and Defendant) was very busy typing into probably a laptop. Will it be possible to obtain a copy of that typed record?

Not too sure why he felt DPD had the stronger case, it just came out in an overall summary he put forward and there wasn't the opportunity to ask why. 

I'll read about the Unfair Contract Terms Act 1977 to be better informed.

Been to court this morning for the Dispute \Resolution Hearing.. 

Court hearing lasted about 30 minutes.

Judge had clearly read most if not all of the papers. He had missed Packlink are a Spanish Company and any claim against them would be under Spanish Law.

He didn’t invite either party to state a case other than provide him with a summary of their overall position. I made the point that if DPD say there is no contract then they cannot rely on the T&Cs as per their argument.

The outcome was he indicated that DPD probably had the stronger case but that my position was arguable. He sought a compromise, none was possible. I did indicate minor flexibility DPD declined outright. DPD also indicated that any compensation normally provided in relation to lost parcels was determined by the weight of the parcel not its contents and on that basis they would offer around £24.00.

One major stumbling block seems to be that DPD are arguing that if I am claiming under the Contracts( Rights of third Parties)Act1999 it may be that as a consequence I have to abide by and accept the contract terms and conditions of DPD’s notional contract if I claim to be a discernible party to it ie the sender. Do you have any thoughts on that please?

Next

would I alter the name of the defendant to Packlink and pursue a claim against them as suggested by DPD. I said no because to do so would mean proceeding under Spanish Law which would put me at a distinct disadvantage re jurisdiction, understanding and location and also lose any rights under English Law. He accepted that was a valid point.

He recognized the case at Brentwood Crown Court might have relevance depending on how the result was achieved and who heard the case .

His decision was to refer the Case to a formal hearing in December after hopefully a transcript of the Brentford Case is made available. If it is not published by November I need to advise the Court and seek a postponement.

Not sure where to go from here.

I have made the amendments to my NOTES as recommended.

Out of curiosity I checked re Packlinks Contract Terms as provided by dpd and found this:

Applicable Law
These Terms of Use of the Website are subject to Spanish law.

18. Applicable legislation and jurisdiction

This contract shall be governed by Spanish legislation, which shall apply to the provisions of this contract

regarding its interpretation, validity and execution. The parties submit to the authority of the Courts and

Tribunals of Madrid.

As an exception to the foregoing, the parties submit to the competent Transport Arbitration Boards, in

accordance with Spanish law, to resolve disputes whose amount does not exceed €15,000, provided that said

disputes involve ground transportation services

Thank you. 

I have made a second interim donation to acknowledge your help and patience.

is this a nonsensical idea?

Helene at DPD in her papers to the Court for the 15th August hearing has as you pointed out made statements that can't all be correct ie If there is no contract as between DPD and myself then I cannot be subject to the terms and conditions of a non existent contract thus I can look to the Contacts(Rights of third Parties) Act for comfort..

Is there any merit in  on, a Without Prejudice basis, emailing her late next week pointing out the problem with her assertion(s).  Would she/DPD be likely to be sufficiently embarrassed to back down completely and settle as  the Judge might well chuck the whole defence out at the hearing as it is based on a nonsense. OR to approach her on the basis that I would like to reach as much common ground as possible and agree that there is no contract and therefore no T&C's etc because DPD cant have it both ways. This second thought is on the basis that the Court at a hearing can be made aware (hopefully) that I have continued to invite discussion? 

I am assuming that DPD would not be allowed to come up with a completely new defence which could be submitted and accepted so late in the day. 

OK understood. Thank you.