Hermes lost parcel - claim launched . **WON**

[BankFodder]

Your story is a bit confusing. I'm not at all clear whether there was one parcel or two parcels. There were certainly two labels but at the beginning of your post I had understood that this was because it was not possible to print out the first one.

Please could you go through it again and explain it a little bit more clearly. Thanks.

However I understand that for at least one parcel – which may have a value of £130 – which is the value which you declared – Hermes offering you only £20 on the basis that you had not bought the insurance.

If this is the case, then I think that our position is that as you have paid the delivery fee, it is completely unnecessary for you to have to purchase insurance against negligent handling of your property by Hermes.

On this basis you could certainly sue them

[BankFodder]

Okay. So we are talking about one parcel only. The value was £130 – and this was the value which you declared. This is very important.

Hermes have admitted that they have lost the parcel but they are declining liability because they say that you should have bought their insurance.

You have seen what we have said about this so-called "insurance". As long as the value was properly declared in my view is that if you have paid the delivery fee then it is up to them to insure against their own negligence. There is no reason why you should insure against their negligence.

If you are happy with this reasoning – and if you are prepared to take a legal action then of course we will help you.

You need to understand your risk factor – which is that if you lose then you will lose your claim fee – about £25 and you will lose the allocation fee which for this value may be about £80. You will have to look it up the courts website.

If you win then you will get all of these fees back and of course the hundred and £30 you are looking for plus interest on it. The chances are that Hermes will push you to issue the claim and spend the claim fee. They may also push you to spend the allocation fee – but after that, once they realise that you are serious then it is likely that they will put their hands up and pay you out. However it is not guaranteed and you need to be prepared to lose. You have very high chance of success, in my view.

If you think that you want to take a small claim then you should read around this website about how to bring a small claim in the County Court. It's very straightforward but it is worth knowing the steps in advance which will give you greater confidence.
If you decide to go ahead then you should send them a letter of claim giving them 14 days after which you will issue a claim. Do not bluff. If you are prepared to follow through with your threat then don't make the threat. On day 15 you click off the claim.

We will help you draft the letter of claim and also the particulars of claim.

The particulars of claim don't need to be drafted in a formal language. A very simple statement as to why they are liable – that they lost the parcel – is all you need.

Let us know what you want to do

[BankFodder]

Please read my comments here

 

 

[BankFodder]

If you have read around and you understand the risk factors and you are happy to begin a small claim in the County Court, and also if you have read around about the steps involved bringing a small claim in the County Court then your next step would be to send a letter of claim.

 

Quote

 

Dear Sir/Mdm

Parcel reference number X X X – claim reference number X X X
Letter of Claim

 

On X X X date I used your services to send a parcel containing X X X (have you told us what was in it) X X X.

The parcel did not arrive at its intended destination and I now understand from yourselves that the parcel has been lost.

I therefore is seeking the value of the parcel at £130 plus the delivery fee of £X X X

 

I am fully aware that you have a reputation for losing or damaging thousands of parcels that have been placed into your care. You can be certain that if you force this to court, that your record will be brought before the judge – including pieces in the media – both newspapers and television – as well as the information relating to your recent label and computer problems which may well have contributed to the loss of my property.

If I do not receive this sum in full within 14 days then I shall issue a claim in the County Court and without any further notice

Yours faithfully

 

 

Once you have sent this letter off, you are committed – and the claim should be issued on day 15. If you still think that this letter is going to produce any results then you had better think again. It will do nothing other than satisfy the pre-action protocol.

 

During the 14 days you should register with the Moneyclaim online website and start preparing your case. It doesn't need any particular form of words. A short very basic particulars of claim is fine.

 

Quote

The defendants provide a courier service. The claimant use their service to transport a parcel containing a X X X value £130.
The defendants lost the parcel.
The claimant seeks the reimbursement of £130 plus £X X X delivery fee plus interest pursuant to section 69 of the County Courts act 1984.

 

I don't think you need to give them any more information than that at the moment.

For this sort of figure, they may well push you to pay the claim fee and also the hearing fee – but it's unlikely that they will proceed further although now that hearings tend not to be face-to-face but rather on video or by telephone, they may tend to feel that there is less money at risk for them.

In that case you will have to be prepared to present your case. We will help you.

[BankFodder]

Send it by email and also a physical copy

[BankFodder]

In the event that they push you to a hearing – you should read this post which I have made this morning very carefully

 

 

[BankFodder]

I think this is a helpful note because not only does it refer to the so-called compensation cover – better even explains that they won't compensate you for lost items if they appear on the prohibited items list.

This as to the unenforceability of the term.

Under the unfair terms provisions in the Consumer Rights Act there is no power in the court to reconstruct the unfair term so that only part of it applies. It doesn't destroy the contract, but the unfair term destroys itself.
It's patently unfair to decline liability for lost items simply because it appears on a prohibited items list.

You should store this safely and add it to your bundle of evidence later

[BankFodder]

Now if you want to send them a letter of claim, you should do so.

 

Quote

Dear Sir/Mdm

Parcel reference number – X X X – claim reference number X X X
Letter of Claim

 

On X X X date I used your service to send a parcel under the above reference number.
The parcel did not arrive at the destination and after several exchanges with your customer service staff, I was told that the item was lost.
I was also told that I would not be entitled to make any compensation claim because I had not purchased an additional compensation cover. In fact I was also told that even if I had, if my item was included on your prohibited items list, you would still declined liability for its loss.

My position is that I have paid the delivery fee and it is not for me to insure against the negligence of Hermes. It is for Hermes to protect themselves against liability for their own negligence and not pass the buck onto their customers.

I see this requirement as an unenforceable unfair term designed to exclude liability and to prevent me from taking a legal action.

I am preparing to take you to court. If you force this to a court hearing – you can be certain that I shall be producing evidence from many different sources to show that you systematically lose parcels and decline liability on spurious grounds which are unfair and unenforceable.

The contents of my parcel were valued at £X X X.  plus the delivery fee of £X X X.

If I do not have reimbursement in full within 14 days then I shall issue a claim in the County Court to recover this money from you plus interest and without any further notice.

Yours faithfully

 

As I have already indicated, you should only send this letter if you are prepared to issue the claim on day 15. It is almost inconceivable that Hermes will buckle under this threat without issuing the claim papers.

Make sure you have read around the forum and you understand the steps in taking a small claim. Make sure that you understand your risk factors and what will happen if you lose the case.

In the intervening 14 days register on the court service Moneyclaim website and start preparing your claim.

Here is a suggested draft particulars of claim

 

Quote

The claimant used the courier service provided by the defendant courier company to send an item to a third party.
The defendant company has admitted that they have lost the item and yet they refuse to compensate the claimant.
The value of the item sent was X X X. The delivery fee was X X X
The claimant claims full reimbursement of X X X (item value plus delivery fee) plus interest pursuant to section 69, County Courts act 1984.

 

[BankFodder]

Thank you, make sure you read around and you understand all the steps.

[BankFodder]

I'm afraid that this person has not returned to the forum since the end of June.

It's very frustrating when we go out of their way to try and help people and they don't let us know what has happened or if there has been some resolution.

It's frustrating for us but also for other people who come here for help and hope to find an example or to learn from other people's experiences, it's even more difficult.

[BankFodder]

I'm afraid by not following up on your threat on the fifteenth day – exactly as promised in your letter of claim, you weaken your credibility, bring comfort to Hermes and of course it becomes more difficult for others.

If you make these threats then you must carry them out exactly

[BankFodder]

Yes the claim is still valid but what you don't seem to realise is that there are hundreds of people sending letters of claim which are never followed up to Hermes and they all end up in some bucket and that is properly where yours is now.

If you're serious about it then you need to set your deadlines and then follow them up. Otherwise you simply hand control over to Hermes. If you issue the claim against Hermes then they will simply assume that they probably shouldn't worry about you as much as they might do if you laid down strict timelines and stuck to them

[BankFodder]

I have just realised that you have not confirmed to us that £130 was the declared value

[BankFodder]

Okay, nothing surprising here.

Of course your position on their payment will be that it was a payment made unilaterally by them without any prior agreement from you and therefore you take it that it is a part payment of your claim

[BankFodder]

You won't be able to request a judgement because they have put in a defence. I'm afraid that you will have to let things take their course a little bit and eventually you will get an allocation/directions questionnaire which will require you to pay a fee if you wanted to go on.

 

For the size of the claim – which is quite small – I can't see it really going all the way. I can imagine that they will put up their hands – but you can never be sure

 

[BankFodder]

I have always been against mediation. Please follow the mediation link to see what I think about it and it really is calculated to get you to compromise over some of your rights.

However, it seems to be becoming more common and more preferred to try mediation and for such a small sum, may be you should go ahead. However, it is a small sum so there is very little to lose and if I were you I would go into mediation extremely bullish and stand your ground for every penny including your costs.

Hermes will try to get you down at least by the extent of your costs and maybe try to fob you off with a hundred quid in full and final settlement. Really there is so little at stake I think that your best bet would be to say to the mediator/Hermes that if they want to go to court then fine. You will get the court to agree that their "insurance" requirement is an unfair term and that once you get that judgement you will make sure that everybody knows about it – everywhere – and Hermes will then have to deal with an enormous number of claims.

I think this should be your bargaining position and that you explain to Hermes that if they settle up your claim in full as well as your costs then there will be no judgement against them and no risk of a lot of publicity about their fake and unfair insurance scheme.

They will try to get you down about 20 quid or so and frankly it so little, you have nothing to lose by telling Hermes that you are prepared to go head-to-head in court and get the judgement which will destroy them once it is published.

You can also point out that Hermes are being ridiculous spending so much money trying to crush your claim – far more than your claim is worth. These people are really taking it personally and they are completely pigheaded.

[BankFodder]

By the way, you will probably even come under pressure from the mediator to compromise.

I think you're starting position should be "I'm not here to compromise on my rights. I've only agreed to mediation in order to save Hermes further money and expense and also embarrassment of going to court and losing. That's my offer. If they don't want it then they should say so and we will go to court."

[BankFodder]

Thanks. Let me refresh my memory and I'll come back to you with maybe a few suggestions – in case they might be helpful

[BankFodder]

[BankFodder]

Firstly – stand your ground. This is such a small amount that there is no reason to give way on it. Even if you have to go to court hearing – stand your ground. The hearing will not be face-to-face. It will be a telephone or video hearing.

Secondly, their whole defence is based on the fact that you didn't take out their insurance – which they call "compensation".

This question of compensation insurance and whether it is enforceable is so fundamental to what Hermes are doing, that for this kind of money there is no way that they will risk going to a County Court and having a judgement against them on it. If it went to County Court and you won the case – which is highly likely – then we would make sure that this judgement is published in the press and all over the Internet.
Although it would not set a binding precedent, it would be hugely influential and it would begin a spate of claims against Hermes and also all the other courier companies which have the same system in place. Of course it is a disreputable system.

• Firstly Hermes say that you "took out compensation" – not true. You have no option. Their so-called insurance requirement is obligatory and simply changes according to different levels. So that it is untrue for them to say that you took anything out  - suggesting that it was a matter of choice.

 

• Secondly, it is unfair that you should be required to protect yourself against their negligence. Any prudent company should ensure itself against errors and claims by its customers. This happened throughout all industries but for some reason rather the courier industry has developed a different culture which has come to be accepted – although there is no legal rule which says that it must be this way.

 

• Thirdly, you have no option because all the other courier companies operate the same system so this does not mean that you deliberately chose Hermes or that you could have deliberately avoided Hermes and go to somewhere else where this compensation requirement would not apply. In that respect you are captive.

 

• Fourthly, it is completely open to Hermes to restructure their pricing system so that they alter their delivery fees according to a tariff of parcel values. This would be clear and transparent and would probably be a reasonable approach. Hermes have chosen not to do this. In alignment with the rest of the industry, there attempt to force their customers to buy some kind of insurance against Hermes own negligence or the dishonesty of their own employees.

 

• Fifthly, this insurance is needed even if it is not a question of Hermes negligence – but it is needed as a result of Hermes employee criminality. This means that Hermes distances itself from all wrongdoing whether it is by its own employees or by Hermes itself.

 

• Sixthly, the term of the contract which limits the liability of Hermes in respect of his contractual breaches or its negligent acts is unfair under the Consumer Rights Act and if Hermes insist on it going to court then the judge will be invited to exercise his/her duty to consider the fairness of the term as he/she is required to do under the 2015 act.

 

• Seventh by limiting compensation for damage or loss, Hermes is attempting by its contract to limit the power of the court to make awards of damages.

 

Because this is telephone mediation, you will be able to have a list of these points in front of you. I suggest that you understand them and you are able to say them in your own words so that you sound as if you know what you're doing and you are confident.

Don't forget that Hermes probably monitors this thread – but who cares. Don't forget also that you are only talking about £120 and Hermes would be thoroughly stupid to take the risk of this going to court and succeeding.

Stand your ground. They will try to reduce you down by 20 or 30 quid – I suggest you refuse. Make sure you insist on your costs being paid. I can't remember if you claimed interest – but if you did then insist on it.

Insist on every penny. Hermes have already spent more than the claim is worth trying to resist this. They're completely stupid and bullying and are incapable of making sensible business decisions.

 

[BankFodder]

Thank you. I'm very pleased for you of course – and very grateful that you are updating us.

It's great that you found it so reasonably straightforward and that you are letting other people know about this.

I wonder if you wouldn't mind describing the interaction with Hermes through the mediator from the moment that the exchange began – and also maybe tell us a bit about any preparation that you put in hand.
I think that would be very useful for people and I might put it or a version of it into the library for guidance.

[BankFodder]

Well done. Very well done indeed.

I think it shameful that the mediator tried to join with Hermes to push you into reduction. That is not at all the function of mediation. 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.

I think the mediator behaved outrageously and I think they have lost sight of their true function.

Well done to you.

Thank you for this update – it is extremely useful.

Bravo

[BankFodder]

13 minutes ago, murraynt said:

Just received payment this morning. 

 

That was quick.

 

Did they use UPS?