Ebay sale of Canon 1DX camera £736 - DPD delivery to wrong address . PAPLOC. Claimform issued.

[BankFodder]

Please start off by reading as many of the stories that you can manage on this sub- forum. That means lots and lots. You will find many stories involving third party rights under the Contracts (Rights of Third Parties) Act and almost all of them involve PackLink which conveniently was relocated to Spain a few years ago having previously been domiciled within the jurisdiction in England.

Please will you post up the claim form and also the defence in PDF format.

Do the reading

[BankFodder]

Sorry but this is completely wrong. I think that it is you who should be doing reading around on this sub- forum. I have sent you a message

[BankFodder]

do the reading – like everyone else who comes to this forum for help

[BankFodder]

The claim is pretty good. I would have alleged breach of contract rather than negligence but it's all a technicality really. They are saying that you use the wrong name for the defendant. Once again a technicality but may be a bit more careful in future.

Their defence is absolutely predictable but it is interesting that although you have mentioned your third party rights under the 1999 Act, they have completely ignored that point.

At some point you will receive a directions questionnaire. It would invite you to consent to mediation. In the past we have been advising people that they should do this but frankly it is all getting so ridiculous that we would suggest that you reject mediation and insist on going directly to trial on the basis that the claim and the defence raises an important question of law – that of third party rights – which needs to be dealt with by a judge in open court.

There is a very slight risk that even if you win – which you probably will – the court might say that you should have gone to mediation and they might withhold some costs from you. This is highly unlikely to happen but I am making sure that you understand the position.

Let us know when the DQ arrives

[BankFodder]

As you are suing on a contract, it would have been more appropriate to refer to the breach. As you are a layperson and this is simply before County Court, it's only a technicality.


It's up to you whether you want to redact. If you are worried about DPD sending the boys round in the middle of the night then maybe you should redact
 

[BankFodder]

No need to send it to us. Thanks .

However, what you are finding is very interesting and even further evidence of the direct relationship between yourself and DPD .

One of the requirements in the third parties act is that you be a discernible beneficiary or of a class of discernible beneficiary .

Clearly you are exactly that .

If they want to make an issue of it then you should insist on seeing the contract between them and packlink.

It is only if that contract contains a clause excluding third party rights that you will not be able to benefit from the 1999 act

[BankFodder]

That is a difficult question to answer. We don't know what your own state of knowledge is.
Probably the most important thing is that you need to start deciding whether or not you are prepared to go to mediation or with the you want to go to trial

[BankFodder]

Frankly you don't need to have much of an understanding of contract law. That part is open and shut.
The only issue here is that of third party rights.

You're quite right that there are very few reported/recorded outcomes. That's because they always settle at mediation and only a very few have slipped through the net.
Nothing relating to 3rd party rights has slipped through the net. They are all settled at mediation and frankly it is all part of a litigation model intended to discourage others and to make it as tough as possible for people who are persistent enough to begin a claim.

As I have said elsewhere on this forum, your interests and ours are aligned in so far as we want you to get a result. It might be said that our interests diverged to the extent that we are campaigning group and we want to look after the interests of all victims of these companies. Your interests are focused (very reasonably) on getting your own money back rather than standing on principle.
This does not imply any criticism of you. It is simply that at some point we are here for different reasons.

I am 90% certain that DPD and the rest of the courier industry would fail on the issue of third party rights. If this were not the case then they would have taken the matter to court by now in order to establish it once and for all. They have always settled at mediation.

Exactly the same with the insurance requirement but in that respect, we now have three judgements in our favour. In fact there is 1/4 but even though we helped that claimant, they have declined to help us obtain a transcript of the judgement.
However, with the insurance requirement, there were almost all settled at mediation and I have no doubt that the courier companies are very anxious that there are not further judgements against them on this issue because as they pile up on top of each other, it will become more and more difficult for the courier companies to maintain this insurance scam. It's the equivalent of PPI mis-selling.

The Packlink arrangement is also a scam. This company used to be domiciled within the jurisdiction in England. For no apparent reason they up-sticked and relocated in Spain – outside the jurisdiction and outside the reach of the normal County Court process.
I'll leave it to you to surmise why this might be

[BankFodder]

You are overthinking this. It's not a question of you having a contractual relationship with DPD. It is a question as to whether you were a discernible beneficiary of the contract .

 

The fact that either you sent the item all you were, the recipient of the item makes it very clear that you were a discernible beneficiary of the contractual arrangement.

 

That's it

 

[BankFodder]

Okay, fill in as best you can and ask us any questions here.

Of course one of the big issues for you is as to whether you want to go to mediation or whether you prefer to go directly to trial.

In the past we have been saying that people should go to mediation but recently we have suggested that people avoid mediation and go straight to trial in order to test the third party rights issue.

If you have a look at a few of the stories on this sub- forum you will see that the pros and cons have been discussed. Have a read and make your own decision and let us know what you want to do.

Once again, ask us questions – but after you have done the reading please

[BankFodder]

No, we don't need to see it. If there are any particular questions that you are not certain about then post them here

[BankFodder]

1. Not sure what you mean by alternative courts. You would normally choose your local court which is most convenient for you.
2. Yes. Type your name.
3. Are you dealing on paper here?
    

[BankFodder]

Yes, a decision in your favour will be of enormous benefit to many people. Interesting that they are declining mediation. Can you remind me? Did you agree or decline mediation?

Have you got any deadlines for submitting documents et cetera?

[BankFodder]

This dispute resolution hearing sounds to me like a form of mediation and not a trial.

I haven't heard of it before.

You will have to assemble a court bundle. Follow the court bundle link.

You will also have to prepare a witness statement – in numbered paragraphs. Post a draft here so we can have a look.

They haven't given you much time. You have to have this done and filed 14 days before the DRH

You can certainly mention duty of care but also you should be mentioning the contractual breach. Contracts (rights of third parties) act is completely relevant for contracts. Not for negligence.

If they want to exclude the effect of this act then this has to be included in the contract between DPD and eBay or Packlink – whoever appointed DPD to send the item.

In order to establish this they would have to disclose that contract.

The fact that they have mentioned this otherwise is not relevant.

The Third Parties Act is very clear that third-party rights can only be excluded by reference to the contract between the parties – nothing to do with you.

Please prepare your witness statement and let us know that you are in control of the court bundle

This Cagger has a similar claim except against EVRi.
They also have to do a witness statement

 

[BankFodder]

Section 1.

Don't necessarily look for the exact words that I have used. Read the section and and understand the meaning of it

[BankFodder]

The court bundle is not something which will be read from cover to cover. Most of it is comprised of reference documents and are therefore information in the event of any queries.
Obviously, everybody would like it to be kept as short as possible.

Why don't you start putting together your court bundle and put up your index page so we can see what you are proposing to include.

[BankFodder]

Please produce your draft witness statement here in PDF when you are ready

[BankFodder]

Quote

I reject DPD’s assertion in their statement of Defence and Counterclaim item 5) that Mr Griffin is not a Customer of DPDgroup UK Ltd and has no contract with DPDgroup UK, to the extent of the provision/protection afforded to me by Section 1 of the Contracts (Rights of Third Parties) Act 1999.
I am clearly a discernible beneficiary under the contract between DPD and eBay as I was the sender of the parcel. Therefore I enjoy third-party rights under the Contracts (Rights of Third Parties) Act 1999.

 

Quote

I disagree with Item 10 of DPD’s argument in their Defence and Counterclaim stating Any claim for loss regarding the delivery should be made to Packlink Shipping Ltd as this is with whom the Claimant has contracted. I accept that I could have made a claim against Packlink but as they are a Company based in Spain making a claim against them would prove significantly more onerous than pursuing a Claim through an English Court relying on the provisions of Section 1 of the Contracts (Rights of Third Parties) Act 1999. I argue that not making a Claim against Packlink does not debar me from claiming against DPD.

Quote

In regard to DPD’s Item 11) DPD asks for strict proof of there being a contract between the Claimant and DPD. My response is that DPD were responsible for the creation and provision of a parcel label (see Attachments page1) to facilitate the collection/reception of the parcel at a designated location being one of their Collection points. The printed label shows three parties:
a) Me (the Claimant),
b) Alfred Wylde the intended recipient and
c) DPD
indicating relationships as between the three parties.
On delivering the parcel to the DPD Collection point, I was given a numbered Receipt printed on DPD stationery. There is no indication on the receipt that DPD were acting as an agent for a third party. (see Attachments page 2)
At the moment the parcel was accepted into the care of a DPD agent, Michael Peters of 206 Widney Road, Knowle Solihull, DPD assumed responsibility and a Duty of Care towards both the sender and the recipient for its safekeeping up to the point was safely delivered to the recipient’s address.
There is no need to establish a contract between the claimant and DPD because the Contracts (Rights of Third Parties) Act applies.

Quote

I will again invite discussion in a letter/email to DPD at the time of lodging this statement with the Court or at a sooner date.

Your draft is overcomplicated and overlong.

Start off with the amendments that I have suggested above and then post up the new version.

I notice that you haven't mentioned what the contents of the parcel were or the tracking reference number. Any reason for this?

[BankFodder]

You can get rid of the yellow highlighted passage. It is simply repeating what you have already said.

Stop using Roman numerals

paragraph 7 needs to be broken down into several paragraphs. You should make one point per paragraph so go through the whole thing again and do this and space each paragraph.

I don't think you need paragraph 8. Let's see what it looks like without it.

Quote

Proposed Resolution. At this time it is my intention to establish myself as an entitled third-party under the Contracts (Rights of Third Parties) Act and Claim the full amount as set out in the Claim Form and restated in my Witness Statement paragraph iv) in order to recover the loss suffered.
I would point out to the court that my intention was to achieve this resolution by means of mediation but the defendant has declined mediation and prefers to go to trial thus causing inconvenience and expense to myself and to the court.

And to save me going back over the whole thing, has there been mentioned anywhere at all about you having purchased or not purchased insurance's? Did you purchase insurance?

[BankFodder]

Quote

In paragraph 5)  I changed ebay to Packlink was that correct please?

Quote

and their contracting partner

 

4 hours ago, StoneCross said:

 

In paragraph 5)  I changed ebay to Packlink was that correct please?

RE paragraph viii) Rather than omit its contents I have amended it see 13). My thought being unless there is a statement to the effect that the moneys paid by the purchaser had been returned/ refunded there is no statement of LOSS incurred. If that is wrong let me know please.

 

I don't understand what you mean here.

Although they don't appear to have mentioned the question of insurance – as you didn't request insurance, you should be aware that even though it hasn't been mentioned in their defence, they may decide to introduce it during the court process.
Strictly speaking they shouldn't because they haven't pleaded it – but the County Court's are very flexible about this kind of thing and it would be a good idea for you to be prepared.

I would suggest that you use some of the skeleton argument which I have recently amended in one of the stickies at the top of this sub- forum. Integrate some of the content into your witness statement.

Preamble it:
although the defence has not referred to their insurance policy in their statement of defence, in case they decide to introduce the matter at trial, I wish to make the following points:
the defendants offer an insurance policy which the former secondary insurance and is contrary to section 72 Consumer Rights Act in that it is presented in a way to convince their customers that they have limited consumer rights of redress unless they purchase the policy.
The defendant's terms and conditions make it clear that customer address is limited in the event of loss or damage of an item unless insurance protection is purchase.
This exclusion of consumer rights which are guaranteed by the consumer rights act 2015 is specifically prohibited by section 57 of the same act.

Blah blah.

Get it all to fit and all to work somehow. Get it all into a logical order and then let's have a look.

You may as well be pre-emptive about this kind of thing

[BankFodder]

Quote

In DPDs Defence and Counter Claim I note that they claim the Defendants name should have been DPDgroup UK Ltd. Not DPD UK Ltd. My apologies to the Court for this error. However, it is clear from the defendant's response that the relevant claim papers have reached them and that they are fully informed about this claim against them.
Therefore I would suggest that the incorrect name is a technicality and can easily be amended by the court if necessary.

 

New paragraph 7

Quote

I would respectfully refer the court to a recent case Hashim Farooq v EVRi PARCELNET LIMITED, claim number 365MC637 and which was heard on 12 July at Brentford County Court. This was a another case involving third-party rights also in a parcel delivery claim although with a different defendant. In that case the judge agreed that the claimant sender of the parcel was an entitled beneficiary within the meaning of the Contracts (Rights of Third Parties) Act 1999. Unfortunately although the transcript of the judgement has been ordered, it has not yet been approved for release and so I have been unable to produce it for this hearing.

I have suddenly realise that you will probably need a statement from the intended recipient of this parcel.
He simply needs to provide a statement giving his name, address, and the on such and such a date he expected to receive a parcel from you. In fact no parcel arrived and the photograph that was supplied by the parcel delivery company was not his property and so he concludes that it was delivered to a different property.
As a result he has not received the parcel and has no knowledge of its whereabouts.
If the parcel does appear, he will contact the sender and also the parcel delivery company without delay.

Signed

Statement of truth.

Make sure that the statement there is the case name in the case number.

Then you will need to refer to the statement in your witness statement

[BankFodder]

In paragraph 11, you should refer to the fact that the case was heard only on 12 July and although a transcript has been bespeaked it is unlikely to be available before August or September of this year.

In paragraph 9, I think you should make it clear that you accept this. That it was an error – but as the defendant knows of the action – you believe that it is just a technicality and you apologise.

Other than that I think it's fine.
Please post your final draft just in case.

[BankFodder]

Okay, I haven't been through the whole thing but it looks very nice.

 

[BankFodder]

1st Aug??

[BankFodder]

We have very little experience with DPD. It's mainly the brokers and EVRi.

However the principles all the same so I'm sure that we will be able to help you deal with it.

Do you have a hearing date?

I don't know who prepared this bundle – maybe it is Hélène Titus-Glover who is some paralegal who tried the professional solicitors law course at some point and presumably didn't make it and is now paralegal after having been a fitness instructor et cetera.

It's not at all well indexed. She refers to document one et cetera but doesn't identify which document that is. Put me right from wrong.

So we will have to work through it on our own. 77 pages – mostly unnecessary. She should come here for guidance on how to produce a court bundle.

She refers throughout – to the "contract".

Please can you have a look through and see if you gather that this is intended to be a contract between DPD and somebody with whom they directly contract to carry the goods. This is an important point.
Or you think they are referring to the contract between them, DPD and Packlink?

 

She refers to the fact that you don't have insurance – this is not a problem. The restrictions on liability is clearly contrary to section 57 of the consumer rights act. The insurance requirement is clearly a requirement to take a secondary contract – prohibited under section 72.

I think the question that we really need to ask ourselves is whether the contract that she is referring to throughout, is there contract with Packlink to carry your goods – or is this a contract which they would enter into if you had contracted with them directly.

I suggest you have a look at the DPD site – and pretend that you are sending goods directly through their site and see whether the terms and conditions they are trying to find you two are in fact the same as mentioned in this bundle.