Evri - Third party rights issue ***Settled before Trial***

[BankFodder]

You should also include at least the first page of the 1999 statute which you are proposing to rely upon.

You should organise your bundle in the way that we suggest if you follow the link – preparing your court bundle.

You understand that you didn't buy their insurance but they haven't raised the issue at all?

[Johnas]

Will include what you suggested and check the link, thank you.

 

I noticed about insurance and I assume it's because I used eBay's Delivery page to buy the label.

When using eBay's Delivery page the option for insurance is pretty much invisible and "no insurance" was always selected by default so people like myself that sell a couple of items a year might not even know that option exists, this has changed recently and you are now forced to select something if you use Evri.

 

However this doesn't seem to be helpful in my case, but might be for others if I actually get in front of a judge and win?

[BankFodder]

I'm concerned because they haven't raised the issue of insurance – and they normally would.

I can imagine that if it went to trial they would suddenly raise the issue and you need to be prepared.

Your position would be –

1. The issue has not been raised at all in the defence and so it cannot be validly raised during the trial because nobody has had any notice of it.
2. However, if the court decides to allow the issue to be raised then you have with you the copies of three judgements involving precisely the issue of insurance and showing that the insurance requirement is unenforceable. Two of the judgements were given against EVRi and therefore they are fully aware of these judgements yet they have not carried out their duty to the court and made the court aware of the existence of the adjustments but have simply raised the issues in an attempt to frustrate or defeat the claim. This is improper but in any event, you are providing copies of the judgements to the court for the courts information and your argument against the defendant's insurance requirement is contained within those judgements. 

 

So be prepared for this surprise tactic from EVRi. Make sure you understand the principles involved relating to the insurance question and although you aren't going to refer to in your skeleton argument, make sure that when you go to the court, you have at least two copies of each judgement with you – one for the court and one for yourself. I suppose you could take a third as a courtesy for EVRi but if you give them a copy of the judgements then make sure that you let the court know that you are doing so simply as a courtesy because it is clear that EVRi must be fully aware of the judgements ready because they were the defendants in the case and have already lost on this issue.
You would also point out to the judge that EVRi are effectively concealing the existence of these judgements from the court when they are raising the insurance issue.

If you can get those comments in then the judge will be interested and won't be at all pleased with EVRi.
Oh dear.

[Johnas]

Understood, will read up on the insurance problem a bit more then and familiarise myself with it a bit more then.

 

As for the court bundle, I will go ahead and compile it now and send it over to the court and evri by tomorrow.

[BankFodder]

Of course you will also attach evidence of the value of the item – and anything else in your skeleton argument which you reference

[Johnas]

Sure, this is what I will add to the bundle:

 

- Witness statement

Supporting documents:

1. eBay order details (before and after refund), this will serve as proof of value (2 pages)

2. Packlink Investigation complete email - this is meant to be the confirmation that the item was lost (1 page)

3. Evri's tracking page which shows that the parcel hasn't been marked as 'delivered' or even 'out for delivery' (1 page)

4. First page of the Contracts (Rights of Third Parties) Act 1999, Section 1 from legislation.gov.uk (1 page)

 

 

 

Assuming this can be emailed to the court (will call tomorrow and ask) would it be better to have all this in a single pdf file or should I post it via recorded delivery?

[FruitSalad1010]

I don't want to make this over complicated for you, but strictly speaking in the eyes of the court the witness statement and the documents you rely on in support of that statement is simply your opportunity to explain what happened and is your version of events.

 

You do not have to introduce your legal arguments, and in higher courts counsel have been reprimanded for introducing legal argument into witness statements.

 

The reason I bring this up is not to cause you any issue, but rather it may be to your advantage not to submit the legal arguments upon which you rely to the court and the defendant until the bundle is due to be filed, which is typically 2 days before the final hearing.
 

Unlike witness statements and supporting documents, skeleton arguments do not need to be produced 14 days prior to trial, and it is my understanding that the court will not have any expectation that a skeleton argument will even be filed on the small claims track especially by a litigant in person. You could theoretically walk into court and present your argument for the first time. However out of respect for the court if you know what you will say it wouldn't put you at a disadvantage to make available to the court your legal argument 1 or 2 days before trial.

I am aware there is a track record of how these claims play out against Evri, but litigation is ever evolving and I see no reason for you to provide opposing counsel a couple of weeks to go digging for all sorts of case law to thwart your claim when they are being paid by the hour to do so.

Do not be surprised if you receive the Defendant's skeleton argument very late in the proceedings, perhaps even less than 24 hours before trial or even handed to you personally by their representative a few minutes before entering the court room.

You can submit a single pdf to the court provided it is less than 50 pages double sided i.e. 25 pages of A4. If it is larger then to be safe submit a paper copy, however if you have created a pdf version which is easy to navigate a judge would probably find this helpful to have a copy of.

 

Email addresses for your local court can be found easily online.

Edited April 13, 2023 by FruitSalad1010

[Johnas]

@FruitSalad1010 Thanks for the input however on the notice that I've got it says my hearing is set to take place on the 17th of May and "...all documents upon which that party intends to rely at the hearing including witness statements..." must be submitted to the court by 2pm on 17th of April otherwise they may strike out my case.

[FruitSalad1010]

Yes documents are the supporting documents to your witness statement - not your legal argument.

To emphasise the point, documents are something the court is unlikely to have access to such as correspondence between both parties. However statutory law such the the Contracts (Rights of Third Parties) Act 1999 is freely available. So while it is helpful to include it with a skeleton argument so the judge has it to hand, they could just as easily look it up, which of course having to do so would probably annoy them.

 

As this is a claim on the small claims track albeit in Scotland, it is unlikely to do you any harm if legal argument is introduced to the witness statement in which case leave in the statutory material. (What you have referred to as item 4).

 

I am saying if you choose to, you could leave out your detailed legal argument until later in the proceedings.

Typically witness statements and supporting documents are exchanged between both parties and filed at the court not less than 14 days before the hearing, in your case the Sheriff has directed a specific date.

Skeleton arguments are normally exchanged by agreement between both parties and I would say its important to get to the judge (Sheriff) at least 1 day before the hearing.

Perhaps you could scan and upload the directions issued by the court so they can be read in full.

Not doing it the way I have suggested is unlikely to prejudice your position and I appreciate you have already written to Evri informing them you intended to pursue them under the Contracts (Rights of Third Parties) Act 1999.

At the top of your skeleton argument you have written I am not proposing to set out the sequence of events. However generally speaking that is exactly what the witness statement is for, what was said and to whom and if relevant how it affected you.

I think you will find, given that you have already submitted a detailed particulars of claim that what you could do is use most of the particulars and then add in the documents which support what you have said happened.

Edited April 13, 2023 by FruitSalad1010

[FruitSalad1010]

Also as your claim appears to have been issued in Scotland, read this thread.

Ok I got my wires crossed there, Audioboxer is the one referring to a Sheriff as it is their claim which was issued in Scotland, perhaps you could clarify?

 

 

Edited April 13, 2023 by FruitSalad1010

[Johnas]

Indeed Audioboxer is in Scotland, I'm in Wales.

[FruitSalad1010]

That changes very little of what I have written above and is good because there should be no question as to the applicability of the Contracts (Rights of Third Parties) Act 1999.

It would still be helpful if you were able to scan, redact and upload the directions issued by the court.

[Johnas]

Sure, please find attached the notice I've got from the court.

 

2023-03-20 N157.pdf

[FruitSalad1010]

Thank you, while the directions make no reference to a bundle, perhaps due to the allocation of the claim to the Small Claims Track they do make clear reference to the witness statement.

The witness statement is made in order to set out the evidence (of what happened). Evidence is not legal argument and legal statute is not evidence.

 

I suggest you do a little further reading on both witness statements and skeleton arguments and with the time available prepare a witness statement which sets out what happened with the supporting documents.

 

You should then keep the skeleton you've prepared ready to submit to the court closer to the hearing, if it even gets that far (unlikely).

 

Here is an example of a simple witness statement which went on to succeed.
 

 

It is clear from other threads, given that almost all of the claims are settled prior to hearing that using the skeleton you have prepared appears to get the job done as it were.

 

You seem to have a good grasp of the issues and what is to come so whatever you decide to do it looks as if your chances to succeed are high.

Edited April 13, 2023 by FruitSalad1010

[Johnas]

As expected EVRi came a day before the deadline for the hearing fee payment was due with their offer to settle for the full amount, didn’t update here as I was waiting for the payment to come through which has now happened.

 

Thank you everyone for the input and help, @BankFodder and the team as well as I wouldn’t have even tried without you, that being said I have donated to the forums the little I received from them.

[BankFodder]

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