Taking City Sprint to court over lost parcel, Simple Claims Procedure (Scotland), response received, guidance please

[BankFodder]

Please use the Adobe scan app to scan the letter again in a proper, readable form .

Please read around this sub forum at the various stories and in particular understand all about third party rights under the contracts ( of third parties) act as this will be the basis of your claim.

 

[BankFodder]

Yes, I didn't realise that it was only restricted to England and Wales .

However, have a look at this:

Dentons - Third party rights in Scotland - all change?

WWW.DENTONS.COM

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A new third party rights Act came into force in Scotland in...

 

 

Please let us know what you make of it. I'm afraid that we are not on Scottish law here .

You find out we'll be useful for others who visit here

 

 

 

[BankFodder]

Contract (Third Party Rights) (Scotland) Act 2017

WWW.LEGISLATION.GOV.UK

 

[BankFodder]

I think you will find that Scottish law makes it easier to enforce third party rights and in England it is fairly straightforward anyway.

Scottish law has some similarities with continental European law and there contractual promises can sometimes be enforced simply on the basis of a moral obligation. That doesn't exist at all in English law.

I'm not able to go through the Scottish legislation am afraid. We have to rely on you – but I'm pretty certain that it is broadly in line with English law – and probably better

[BankFodder]

You should certainly insist on seeing the contract. If they are going to rely on something in it then it should be made available to you.

Who are the solicitors?

[BankFodder]

Thanks for this. Very useful to have an account of how it has been working in Scotland. We are a bit impoverished as far as Scottish materials and Scottish experiences go.

Quite amazing that FG have actually tried to use as an argument that it was a matter of principle that they wouldn't tolerate all of these petty claims been raised against them. Any chance that you can get a written record of that?
This obviously means that they are receiving lots of claims and so there must be a systematic problem.

Yes I agree, you will have to make the new approach to packlink.  However I don't think you need to go overboard. I think a single message to them saying to them that you reject their position and that you require them to review their decision but that you will only accept full payment.
You could also stir it up a bit by saying that their own client is placing the blame squarely on their shoulders.

[BankFodder]

Quote

Dear XXX

Reference number XXX.

 

Thank you for your message dated XXX.

I can confirm that on the suggestion of the sheriff I have reached out to Packlink once again and asked them to review their decision.

However you should be in no doubt that if Packlink once again decline to reimburse me in full plus all costs that I shall proceed through the court process. I shall disclose to the sheriff the attempt that I have made to comply with his suggestion.

There is no doubt that I enjoy full third party rights under the 1999 Act and I'm sure that you must be fully aware of this.  Despite the fact that you have a duty to the court, I take your arguments to be an attempt to frustrate the legal process and to raise obstacles to discourage other claimants. You yourself pointed out during our conversation that you have many other claims against you.

I note that in our telephone discussion with the sheriff that you made it clear that your defence was based on a matter of principle and that you were not prepared to tolerate (your word) all of the petty claims which have been raised against you.
I shall be reminding the sheriff of this statement by you and I shall be pointing out that this is not a basis of any legal defence position that I know of and I shall be asking you to support that argument with some legal authority. I am curious to see what authority you will produce.

I know also that in the conversation with the sheriff you stated that in fact responsibility lay with Inpost and you said that they had acted carelessly.

 

Unless you have some special access to Packlink, I expect that I shall be seeing you in court in the near future, so good luck.

I look forward to making certain that the subsequent judgement against you will be transcribed and published on the Internet.

Yours sincerely

XX

 

[BankFodder]

It shows how out of touch with Scottish law I am. What is the name of the Scottish act please

[BankFodder]

Don't worry, I have found it.

I have to say that it seems a little less certain than the 1999 act.

In the 2017 act it seems that there must be a definite intention by the parties that 1/3 party will become entitled.

Quote

1Creation of a third-party right 
 

 ...the intention of the contracting parties that the person should be legally entitled to enforce or otherwise invoke the undertaking.

Contract (Third Party Rights) (Scotland) Act 2017

WWW.LEGISLATION.GOV.UK

It seems that there must be a pretty definite implication which might be more difficult to show in a Scottish contract then in an English contract.

Still, I wouldn't let that hold you back.

[BankFodder]

Anyway, I suggest that you send the letter I have proposed above with minimum modification.

I think it's important to show that you are prepared to be assertive and that you are prepared to go all the way. They won't be used to being treated like this. Either they will take it personally and rise up against you – but more likely, they will want to get the matter settled to avoid the risk of losing in court

 

Also, in terms of the assertive style of my letters, I think it is partly because after 17 years of running this forum I'm past caring.

I think that is also helped by the fact that it's your neck on the block and not mine 

 

[BankFodder]

The whole thing seems like a load of garble to me. What exactly are they offering you? And if you accept it how much you giving up?

If you really want to accept their offer then fair enough – but there is really no reason for you to give up a single penny.

Please can you clarify what is being offered and what you are accepting

[BankFodder]

So do I understand that if you accept their conditions above, that you will be out of pocket by £19?

 

[BankFodder]

I think that you should make it clear that because they have ignored your claim so far that it was they who forced you to begin a claim and therefore they should pay everything, including the cost of the claim.

 

I would suggest that you print out one of the judgements which have been published on this sub forum and send it to them and tell them that if they don't pay every last penny that you will go to court and this will be one of three judgements which will be put before the sheriff so that when they are eventually forced to pay, it will be as a result of a court decision and nothing to do with their terms and conditions which are completely invalid.

 

 

Also, I think you should tell them that you will not submit yourself to any conditions which they want to impose on the payment .

If they don't like it then you will all go to court and the sheriff will make the decision for them.

 

Tell them that there are absolutely no conditions which you will accept. You will refuse any conditions of confidentiality and you will not give any undertaking not to make further claims against them in respect of any other breaches of contract

 

 

 

And just to add, I think you should tell them also that you will be sending their letter containing their goodwill offer along with the owners conditions that they are attempting to attach to that payment to the court along with the other documents which will be contained in your court bundle to demonstrate to the sheriff exactly how unfair and how exploitative of their dominant position they are tending to be.

You can remind them that one of the requirements of an unfair term under the Consumer Rights Act is precisely that a dominant party attempts to lay down its own standard terms and conditions and exploits the imbalance between themselves and the consumer.

Tell them that this is precisely what they are doing and you expect that this will be referred to in the final judgement which will undoubtedly be in your favour.
You can tell them also that in addition to the publicity you will create for them and the judgement which will be published on the Internet, you will be sending the bailiffs around to their offices for immediate enforcement of the inevitable judgement.