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

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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.

[Audioboxer]

You posted it yourself on the last page  

 

Contract (Third Party Rights) (Scotland) Act 2017

WWW.LEGISLATION.GOV.UK

 

Your brain must be perpetually spinning plates keeping up with all the topics on this forum. It's mostly Evri so at least this one is a bit different!

 

As for that act itself, you previously advised me on a quick skim it is very similar to the 1999 England and Wales act, possibly even a little more robust. I personally noted these parts for my defence, although as stated earlier at this moment in time during a 15 minute call the Sheriff wasn't entertaining in-depth legal discussion

 

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1Creation of a third-party right
(1)A person who is not a party to a contract acquires a third-party right under it where—
(a)the contract contains an undertaking that one or more of the contracting parties will do, or not do, something for the person’s benefit, and
(b)at the relevant time it was the intention of the contracting parties that the person should be legally entitled to enforce or otherwise invoke the undertaking.
(2)The third-party right is the right to enforce or otherwise invoke the undertaking.
(3)The person who is to acquire a third-party right under a contract must be identifiable from the contract by being either named or described in it.

 

and section 9 with arbitration

 

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(5)A person is not to be regarded as having renounced a third-party right to enforce or otherwise invoke an undertaking to resolve a dispute by arbitration by bringing legal proceedings in relation to the dispute.

 

I'm a layman but unless I have misunderstood the arbitration section and point 5 itself, I was under the impression the above asserts I am not in any way giving up third party rights by bringing legal proceedings.

[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 

 

[Audioboxer]

Just noticed after you made the original comment that I then replied to you edited this in as you found the act yourself.

 

As a layman that sounds worrying, but I'll continue on the path! I'm under the impression it would be surprising as it is if CitySprint were actually willing to provide their contracts with Inpost. Especially over £150 at a hearing the Sheriff already pointed out win or lose it will cost CitySprint more than the value of the claim.

 

The degrees of separation in this case are what makes it both interesting and as a layman a challenge. Unlike many other cases on this forum where Packlink has contracted directly to Evri, I've got Packlink -> Inpost -> CitySprint -> Yodel. I opted to use Inpost through Packlink, Inpost have then contracted CitySprint to pickup from their lockers and Yodel to hand the final pass off to the destination.

 

Which I would say right now to anyone browsing, just avoid Inpost completely. Try and go direct with couriers as well, but I understand if you're selling through eBay they really push hard that you use their Packlink service and it automates tracking numbers for buyers/etc. But good luck challenging Packlink after they moved operations to Spain so eBay can try and avoid being held accountable in the UK...

[Audioboxer]

You wouldn't believe it, after I sent a message to Packlink stating I was currently in a legal dispute with CitySprint and was now coming back to question them over responsibility at the bequest of the sheriff they have decided to 180 and do a "goodwill gesture"

 

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The overlooking and especially the mishandling of your case is something which I have addressed to the Escalations team of the contracted carrier of your order. I do not wish for there to be a repeat incident- however, shipping incidents can happen from time to time. You can rest assured that I have the matter escalated and await a full and comprehensive report on the parcel investigation of your order xxxxxxx.
 
Unfortunately, no enhanced insurance was purchased so you would only be liable for standard compensation.
 
This is clearly stated in our eBay Delivery Powered by Packlink Terms and Conditions Clause 14a Packlink’s liability (whether in contract, tort, negligence or otherwise and howsoever arising) for the loss, theft or damage to any Goods and/or any other matter under or in connection with these Conditions shall, unless the User has chosen enhanced compensation cover as set out in Section 15 (b) be limited to £25.00 for all EVRi, Yodel and InPost delivery services (twenty five GBP), and to £60.00 for UPS, DPD and DHL delivery services (sixty GBP), whereas EVRi Postable service does not include standard compensation. Packlink shall under no circumstances be liable to the User, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit or indirect or consequential loss.
The main objective of the Customer Service team is to solve the problems encountered by the user during the transport process, from our experience, we know that not all users spend the necessary time to read the conditions, for that reason we will defend your case arguing ignorance on your part.
 
Please confirm that you have read the information we have previously sent you and that you understand it, once you confirm that you have no doubts about these conditions,
we will proceed to issue a payment for the remaining  value of the item as a gesture of goodwill.
 
Please note that should you make any further claims against Packlink, we will only be able to meet those claims within the limits detailed in the terms of service, which you confirm that you have read and understood.
 
For future reference, make sure to purchase enhanced compensation if the content value is above the standard compensation of the carrier you chose, as if you submit another claim without this insurance you will only be liable for standard compensation according to the carrier you chose to carry on the service.
 
Please confirm if you are willing to accept this goodwill gesture and the instructions above are understood as this goodwill gesture will only take place this one time.

 

By all means I was getting kind of excited at the prospect of continuing to pursue this against CitySprint, but not only do I have no meaningful reason to do this now, even just to avoid further months of waiting and nonsense from CitySprint I'm obviously going to accept the above.

 

All I'll "lose" now is a £19 simple procedures fee as the sheriff isn't going to request CitySprint pay out on that to me.

 

I've responded to the above but given it seems guaranteed they'll payout the full £150 I can only hope even up to now the process I've gone through can lay some of the groundwork for anyone else in Scotland that looks to go through the simple procedure process.

[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

[Audioboxer]

My bad I think it copied as rich text or something and that made the text format weirdly, I'll try again

 

Quote

The overlooking and especially the mishandling of your case is something which I have addressed to the Escalations team of the contracted carrier of your order. I do not wish for there to be a repeat incident- however, shipping incidents can happen from time to time. You can rest assured that I have the matter escalated and await a full and comprehensive report on the parcel investigation of your order xxxxx.
 
Unfortunately, no enhanced insurance was purchased so you would only be liable for standard compensation.
 
This is clearly stated in our eBay Delivery Powered by Packlink Terms and Conditions Clause 14a Packlink’s liability (whether in contract, tort, negligence or otherwise and howsoever arising) for the loss, theft or damage to any Goods and/or any other matter under or in connection with these Conditions shall, unless the User has chosen enhanced compensation cover as set out in Section 15 (b) be limited to £25.00 for all EVRi, Yodel and InPost delivery services (twenty five GBP), and to £60.00 for UPS, DPD and DHL delivery services (sixty GBP), whereas EVRi Postable service does not include standard compensation. Packlink shall under no circumstances be liable to the User, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit or indirect or consequential loss.
The main objective of the Customer Service team is to solve the problems encountered by the user during the transport process, from our experience, we know that not all users spend the necessary time to read the conditions, for that reason we will defend your case arguing ignorance on your part.
 
Please confirm that you have read the information we have previously sent you and that you understand it, once you confirm that you have no doubts about these conditions,
we will proceed to issue a payment for the remaining  value of the item (125.00 GBP) as a gesture of goodwill.
 
Please note that should you make any further claims against Packlink, we will only be able to meet those claims within the limits detailed in the terms of service, which you confirm that you have read and understood.
 
For future reference, make sure to purchase enhanced compensation if the content value is above the standard compensation of the carrier you chose, as if you submit another claim without this insurance you will only be liable for standard compensation according to the carrier you chose to carry on the service.
 
Please confirm if you are willing to accept this goodwill gesture and the instructions above are understood as this goodwill gesture will only take place this one time.

 

Total value of refund when they do it will be £150 which is the value of the item.

 

As much as I would like to carry on out of principle I think the sheriff will just rule and close the claim if and when I provide evidence that Packlink have paid out. From advice from yourself and this forum I know the insurance nonsense is a load of crap, but if they're paying out just "accepting" the above and refusing to deal with packlink again seems the wisest move.

[BankFodder]

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

 

[Audioboxer]

I will be for raising the simple procedure against CitySprint. Packlink wouldn't pay that. Are you suggesting I tell the sheriff I still want that paid by CitySprint? I did say at the beginning of the procedure I wanted the sheriff to claim that £19 off the defendant.

 

I guess instead of pulling the claim I'll wait till the next conference call and see how the sheriff responds to the actions of Packlink.

[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.

[dx100uk]

and?

 

dx