Packlink/EVRi - Item "switched" in transit, court claim raised. *** Settled in full***

[mantis shrimp]

It is unlikely that the court would give a hearing date within 3 months. Sorry, but our glorious government does not regard funding the justice system as a necessity. 

[nick676]

@dx100uk Thanks, all sorted now.

 

Back on the claim, I have my mediation appointment soon. I've read some other threads and guides online about how the mediation calls work, but would like to check a couple of points.

 

Firstly, it sounds like being inflexible can count against me in the mediation, so would it be wise to concede anything, or just stick to my guns? 

 

Will just mentioning the rights of 3rd parties be sufficient, or will I need to have the act in front of me and ready to quote. Are there any other tips on preparation for the mediation session?

 

I've been looking at this thread and this one for reference.

 

Thanks

[BankFodder]

What is the date the mediation?

Going back over this thread, as far as I can see the only issue is that they say that your contract was with Packlink and not with them. Is this correct?

I can't remember whether you took out insurance on this item – and you tell us please.

In terms of the mediation – nothing will count against you for being inflexible. You don't have to compromise if you are in the right.

If they have argued their case simply on the basis that you should have sued Packlink – then once you destroy that argument they have nothing left.

You Are Relying on the Contracts (Rights of Third Parties) Act. Point that out to the mediator and tell them that there is nothing else. They haven't raised any other issues in their defence and so as you are entitled to sue them, they haven't raised any other objections therefore you want all your money.

You may come under pressure from the mediator to compromise. You should immediately tell the mediator that he or she is acting improperly and they are simply there to pass messages along.
Tell the mediator that your message to EVRi is that you will not compromise. That you are happy to go to court if they won't let you have every last penny that you claimed. And that if it goes to court then the judge will confirm that you have third-party rights and you will make sure that everybody knows about the judgement so that they won't be able to bring the argument again.
Tell the mediator to tell EVRi that if that is what they want then you are up for it.

Once again, you have rights. You are enforcing your rights. The money is significant to you – it means nothing to EVRi. They have a huge amount of money and that they are only interested in discouraging you and discouraging other people from bringing their legitimate claims.

Don't give ground. There is no downside. It's all about your will to succeed.

EVRi think they can bully you using the mediation process.

[nick676]

Thank you. The mediation is on the 6th.

 

I did take out the insurance. As far as I can see, the only argument in the defence is that "there is no contract between claimant and defendant".

 

A redacted version of the defence is here

 

I'll stick to my guns and maintain that I need to be refunded in full.

 

 

 

 

[BankFodder]

Absolutely correct.

All you need to do is quote the rights of third parties act and say that you are exercising your rights under that act. EVRi have raised no other objection to your claim and so therefore they must pay your claim in full – everything you claimed including interest if you claimed interest.

Don't give any ground at all. If it has to go to court then that will be probably in about two or three months time and you will get a judgement confirming your third-party rights.
We will be very pleased to pay for a transcript of that judgement and then to make sure everybody knows about it. Another nail in the coffin of EVRi scams.

Who was it who signed off the defence?

[BankFodder]

If the mediator tries to give you any grief for not compromising then tell them that they are acting out of turn and if they don't like it then they can withdraw from the mediation.

[nick676]

Thanks, will update on how it goes on Wednesday.

 

The defence was signed off by an Emily Egan, I've seen her mentioned elsewhere on these threads too.

[nick676]

The defendant didn't turn up for the mediation... glad I took the morning off work for this.

 

I have the option of rearranging the mediation or going straight to court with it. If this goes to court, can I claim back any costs incurred (transport etc...) or will the claim only be for the original amount?

 

 

 

 

[BankFodder]

Yes if it goes to court then you can certainly claim back your reasonable costs – including reasonable costs of transport, time off work – and also for this wasted time off work today.

Not only that, in view of the fact that they have broken an appointment for the mediation I would say that you would be in a good position to ask the court to exercise their discretion to award exceptional costs on a litigant in person basis for the time that you have taken so far in preparing, communicating et cetera.
These costs are at £19 per hour. It's not guaranteed that you would get them but I would have thought that the court would be anxious to demonstrate its displeasure at the fact that there was a mediation appointment arranged and that EVRi broke the appointment.

So I would suggest that you go directly to court. If there is some form you have to fill in to explain why you're doing this then please let us know and we will help you.

If you want to claim litigant in person costs in view of their unreasonable behaviour – and there is no downside to this – then start keeping a detailed list of the time you have spent so far and the time you are spending going forward.
I suggest that you keep a spreadsheet – times, dates, what you were doing – so that it can all be demonstrated to be completely reasonable and you are not making a money grab.

It will be extremely interesting if it goes to court and the judge upholds your third-party rights. That will be a serious nail in the coffin for EVRi and anybody else who tries this third-party contract trick.

Please keep us closely informed

[nick676]

Someone else from the Evri legal department has emailed me directly with a settlement offer...

 

"I write with a view to settling this matter.

 

You are claiming £242.61.

 

EVRi defence which has been issued to you is that when you sent the item you entered into a contract with Packlink and therefore EVRi is not liable to you as there is no contractual relationship. As a result of this we also have limited information about the parcel. However we have contacted Packlink on your behalf who have advised that, when you sent the item you stated:

Value: 205 GBP

Postage: 9.24 GBP

Insurance: 205  GBP

However they stated that you have not been compensated as you did not provide the mandatory documentation they have requested.

Notwithstanding this and despite that you have not provided the evidence to Packlink we are willing offer you a goodwill gesture of £214.24 in full and final settlement of this matter.

If you would like to accept this offer please provide your account details and I will arrange payment."

 

Should I ignore the direct contact and stick to the court procedure? This offer still leaves me out of pocket on the court fees, so I'm unwilling to accept. Their breakdown is also incorrect - Packlink refunded me the £9.24 postage months ago, so this has never been part of the claim.

 

 

 

 

[BankFodder]

Who signed this off please?

First of all – congratulations, you are winning.

 

Secondly, these people are really stupid. They think they can muck you around, cause delays, put it in the expensive court fees et cetera, waste your time on broken mediation appointments and then get you to accept a gesture of goodwill which still leave you out of pocket.

Have they said that this email to you is without prejudice or confidential?

[nick676]

Thank you. This is signed off by a Eunice Ochieng - Evri Legal Department.

 

There's nothing in the email about without prejudice or it being confidential, aside from the standard "This e-mail (which includes any files/attachments transmitted with it) is confidential. It is intended solely for the use of the individual to whom it is addressed. Any views presented are solely those of the author and do not necessarily represent those of Evri" at the very bottom of the email.

[BankFodder]

Firstly, I rate your chances of success if this goes to court as over 95%. I understand that it turns completely on the fact that you contracted directly with packlink and you are relying on your third party rights.

It is standard rubbish from EVRi to try and fob liability off onto packlink, knowing full well that Packlink are domiciled in Spain and so it's very difficult to attack them.

EVRi routinely avoid reimbursing hundreds of their customers on exactly this basis and of course when they are challenged at mediation they give up and so it is extremely unusual for something like your case to slip through the net and potentially go to litigation.

So here's a warning – your interest and our interests are not necessarily completely aligned. You want to get your money back. We want you to get your money back as well – but we would rather like this to go to court as well in order to establish the principle and to bring an end to this EVRi scam which discourages so many people from pursuing their legitimate claims.

Having said that, you've obviously been put to delay and also losses and so it seems to me that you could send Eunice a letter:

 

Quote

Dear Eunice Ochieng

Reference number XXX

Thanks your letter and your offer of a partial settlement of my claim.

The answer is No.

You have the cheek to come up with the excuse that I have no rights to bring a claim against you despite the fact that we both know about the Contracts (Rights of Third Parties) Act 1999. If you don't know about this Act then I don't know what you're doing being a trainee solicitor.

Not only that, you have tried to lead me a merry dance in your attempt to discourage me from getting my legitimate reimbursement – to the extent that most recently, despite the fact that I took time off from work to attend a mediation session having prepared and made sure that I was available – you went ahead and broke the appointment and in this way you wasted my time, and the scarce time and resources of the mediation service.

Now you think you can come along with some kind of partial offer simply as a "gesture of goodwill" without taking into consideration my lost time, lost interest, the delay you have caused, the stress of dealing with it in addition to having to handle my day job.

I'm more than happy to go to court. I'm more than happy to get a judgement which makes it clear that your standard excuse of lack of privity because I used a price comparison service instead of contracting directly with you, has no basis in law.

I'm looking forward to publishing the subsequent judgement all over the Internet so that the public as well as the media finally understand how you have dishonesty avoided paying lawful reimbursements to hundreds of your customers.

If you want to make me a better offer which takes into account all of the circumstances which I have set out above – including my litigant person costs – and that this offer is made as a matter of liability and unconditionally, then I may be prepared to consider.

 

Let me warn you, that even if you try to make a full offer which is simply limited to the amount of my claim, in the circumstances I will still insist on going to court and I will explain to the judge exactly why that is and why it is reasonable for me to continue and why it is reasonable for that judge to exercise their exceptional discretion to award me my litigant in person costs on this point which I consider as a matter of public interest.

It's completely up to you. I've already started preparing my court bundle.

Believe me.

Signed

 

 

[nick676]

Thank you, that makes sense, and I completely understand regarding our interests.

 

I'll send a reply clarifying my position, based on what you've provided above.

 

I find it ridiculous that they've pushed back this much over what must be a tiny amount of money for them, especially given I paid extra for their "insurance". The fees, interest, litigant court costs, time wasted by both parties must add up to more than the original item value.

 

Can I please also check, how would costs for any time off work be calculated? I would be using annual leave to attend court, so I'm not sure how that works out as a cost. As you say, I wouldn't want this to appear as a money grab so would only want to claim something reasonable and quantifiable.

[BankFodder]

First of all, I would send the letter I have proposed exactly as I have drafted it- unless it really offends you .

Secondly, surely it must be possible to calculate your hourly rate.

I really wouldn't propose any figures at this time. I would wait and see if they are prepared to make you any offer .

Don't hold your breath. I suspect that they will simply prefer to go to court .

I suspect that maybe they will offer you your court costs on top of what they have offered you so far and after that they will simply prefer to go to court .

These people are really stupid and also they don't seem to understand the significance of having this judgement against them .

Wait until they make the first offer .

However, litigation in person costs are about £19 per hour and I would start working out how much you have spent on this right from the very beginning, including visiting this forum, reading threads, doing any kind of research or preparation, etc.

 

If they come back with an offer then maybe you could make a counter offer but I would be thinking of about £800 and then maybe eventually settling for 500

 

 

 

 

 

 

 

Don't forget that The cost to them of having a judgement against them on this point of law will be worth millions

[nick676]

I have sent the letter as drafted, I appreciate you taking the time to write it. It certainly didn't offend me!

 

I'll break my salary down as an hourly rate and use that as a basis for working out costs. I just want to make sure that I'm not left out of pocket with any of this. The longer it drags on, the more it has become a matter of principle than being about the money.

[BankFodder]

Matter of principle is always a bad reason to litigate .

On the other hand, although for many people this could be a serious amount of cash, realistically, it's not a lot and if you aren't massively hard up then it might be a bit sporty to hang on and to take it all the way to court to see what happens.

 

I really don't see you losing

 

 

[nick676]

Received a response today, basically still denying liability but offering to settle the full value of the claim as a gesture of goodwill.

 

I'm going to accept this, as it mean's I'm not out of pocket. I appreciate that I could probably go down the court route and push for additional costs, but I'm happy to just put the whole thing to bed now.

[BankFodder]

OK well done.

No surprises really.

 

I'm pleased you got your money.

 

It goes to show that you have to stand up to them.  They will always blink first

[nick676]

Thank you so much with all your assistance with this, I really do appreciate it.

Edited April 12, 2022 by nick676

[dx100uk]

well done

glad CAG helped you

 

please consider a donation to keep us here.

 

dx

 

[BankFodder]

I've sent you a pm