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

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Understood. Am I correct in thinking that as the time allocated for the hearing is only 30 minutes it would be sensible to keep the total bundle fairly brief?

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I am currently drawing together the various documents and will forward to you a provisional index to the Court Bundle. As ever thank you for the advice. 

Index page proposed for Court Bundle. attached.

I have now read probably too much on what should be included in the Witness Statement.  I intend at this stage to include; 

a )Statement that I understand that the Contracts (Rights of Third Parties) Act 1999 is applicable to this matter as I  am entitled to rely on ( need to decide on wording )

b) I am claiming from DPD the value of the lost parcel items in the sum of  £xx as set out in the Claim Form.

c)I maintain that I am entitled to rely on the provisions of  The Contracts (Rights of Third Parties) Act 1999, Section 1.

b) The relationship is evidenced by DPD issuing a receipt for the acceptance by them for the parcel at one of the Collection Points. The postage label for which evidences the relationship as between the Sender, Recipient and DPD as all three parties are named thereon.

c) Additionally on acceptance of the parcel for delivery DPD owed me a Duty Of Care including  the fulfilment of their responsibility to achieve the safe delivery of the parcel to the recipients correct address. The parcel was not delivered to the correct address as witnessed by a photograph provided by their or their subcontracted delivery driver, which they failed to to fulfil and as such are in breach of  my contractural rights as provided in Contracts (Rights of Third Parties) Act 1999.

Then append additional documents setting out the Time Line, including picture of the tracking information showing once DPD accepted the parcel it was in their care until the time they claim to have delivered the items correctly.

Picture of postage label to support b) above.

c) Picture of correct Property where the parcel should have been delivered to and the photograph provide by the delivery driver of a different address

d) Information based on the ebay transaction to evidence the amount claimed through the loss of the contents a Cannon 1DX camera plus accessories, and proof of the purchase monies being refunded to the purchaser at which time my loss was crystalized.

A statement to the effect  that in my correspondence to DPD prior to lodging my MYCOL claim I invited DPD to make contact if they wished to discuss the matter. No response was received.

Additionally I stated my willingness to accept mediation in my Form N180 . 

DPD declined to take part in mediation.  

Sorry that's longwinded but hopefully I am going in the right direction.

 

redacted bundle index.pdf

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Hopefully I will have finally got my head around it by Friday at the latest as I am away from home tomorrow Thursday.

Attached is a rough first draft of my witness statement. If my approach is wrong please tell me. I haven't finished the attachments page as yet but will forward as soon as is possible. Thank you for your continuing advice and guidance.

redactedWITNESS SATEMENT4.pdf

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Thank you for the obvious time and trouble taken to review and amend my Witness Statement. Attached is a revised pdf. Please check my corrections including  to v), where I think it should be Packlink not Ebay. Please advise if I am mistaken.

I have added a tracking number in v).

I am unclear whether the text high lighted in yellow should be deleted please advise.

I have added a Proposed Resolution response as directed by the Court papers.

As previously advised I am away from home today but intend to complete and forward copies of the required attachments tomorrow.

Again thank you for your help

 

redacted WITNESS SATEMENT5.pdf

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I have now split paragraph 7) down as suggested and renumbered all.

In respect of Insurance nothing was mentioned in The Claim Form or Defence Statement.

However, in my initial email contact with DPD the following paragraph was included but that was in respect of Packlink having the usual requirement in their Terms and Conditions to take out additional Insurance and why I declined to complete their claim form.

My understanding is that the requirement that the customer is responsible for insuring themselves against the defendant’s own negligence, contractual breaches or the criminality of its employees is unfair within the meaning of the Consumer Rights Act 2015 and therefore unenforceable.

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.

Irrespective as to whether or not I am successful in this claim I will be supporting you with a further donation in recognition of the time taken and the advice provided in this matter..

WITNESS StATEMENT61.pdf ATTACHMENTS.pdf

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I forgot to add  that I realize all page numbering and associated referencing will have to be adjusted/change when the Court Bundle is put together. 

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I have changed Packlink to Ebay. para 5

I have added para 14 re Insurance. 

I have reworded para 12

I am forming the bundle and will add revised witness statement when you feel it is  adequate.

thank you.

WITNESS SATEMENT8.pdf

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Have requested Witness Statement from Alfred Wylde intended recipient.

Noted with interest the 12th July reported case and added via Index page and in body of document.

Have added additional text re incorrect company name.

Will forward revised documents when Alfred  Wylde indicates he will provide statement. And then forward all as pdf asap. thank you again

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Having re read the Courts Instruction I realize I have missed preparing a one page DRH Statement setting out (the key points of your claim and amount claimed and

(ii) Proposed Resolution: any offers you are prepared to make for settlement to save further time and cost of a trial.

I will prepare this in the next 24hrs and forward to you.

The Witness Statement has arrived signed from Alfred Wylde.

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DRH statement drafted as attached must fit on one A4 page.

DISPUTE RESOLUTION HEARING STATEMENT.pdf

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amended Dispute Hearing doc amended as attached

DISPUTE RESOLUTION HEARING STATEMENT1a.pdf

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I have now put together the whole packet due to be filed with the Court and the Defendant see attached pdf.

Also for Alfred Wylde's Witness statement I have with his agreement added the paragraph beginning 'I believe that the fact stated etc...' which was missing. 

John Griffin v DPD UK LTD K7QZ846K.pdf

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DPD have acknowledged service of papers. 

The hearing is for 15th August . DPD haven't as yet  submitted their papers. They need to do so 14 days before the hearing . Can you advise me what is the last date they can serve please.?

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DPD have at the last minute sent their papers which arrived at 16.14 which I think is just in time. Attached are their index and bundle pdfs.

They are denying I have any rights under the Third Party Rights Act . I have only quickly scanned the papers but would welcome and advice you can provide.

Is this pretty standard on DPD's behalf?

Final Trial Bundle.pdf Index to trial Bundle PDF.pdf

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Thank you for your reply.. I will try and work through all the points tomorrow. However is the following in their terms and conditions relevant see section 23 near the end of their t&C.. Hearing is 15th August.

The Contract does not give rise to any rights, under the Contracts (Rights of Third Parties) Act 1999 or
otherwise, for any third party to enforce any term of the Contract.

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I have gone to the DPD on line website and copied the terms and conditions provided there. But note they operate the website/business through a different company. 

I have used Microsoft word to check the text for any references to Contacts(Third Parties etc and can find no reference to it.

I have attached the text in a docx format but there is no equivalent to the Sec 23 exclusion referred to in the papers received from DPD yesterday. It appears therefore that the T&Cs offered through ebay/packlink differ from those offered directly by the DPD website,

on line T&C.docx

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Thank you. I believe I understand it quite clearly. So in my own words responding to their assertions.

In paragraph 4 of DPDgoup UK Limited's Dispute Resolution Hearing Statement it is asserted that I the Claimant am not a Customer of theirs. 

In paragraph 6 DPDgroup UK Limited repeat the same assertion that I am not a Customer of theirs .

If I am not a Customer of theirs then I have no contact with them and cannot be bound by any of their Terms and Conditions including Section 23 which they  are relying  upon to exclude my rights as set out in the Contract( Rights of Third Parties) Act 1999.

I maintain therefore that I am an entitled beneficiary within the meaning of the said act.

Hope that is OK. 

 

[StoneCross]

A couple of extra questions I'm afraid.

The email from DPD received yesterday 14th was sent after 16;00hrs ie at 16:14 after the court office closes. Does that mean the court will regard it as having been received the day after ie today the 15th and therefore out of time?

Hearing is 15th August so 14th Last day for sending/receipt as documents to be delivered no later than 14 days before hearing.

I have  just found that  DPD sent an amended Index and Trial Bundle later at  17.12pm on the 14th August. I haven't compared the 2 documents but will look at them by mid-day tomorrow. Are they admissible for same reason as above question. .

Have checked DPDs amended submission the alteration is the inclusion of a copy of the Defence and Counter claim form. This includes revised Index page.

Sorry to take up so much of your time.

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OK understood. Thank you.

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is this a nonsensical idea?

Helene at DPD in her papers to the Court for the 15th August hearing has as you pointed out made statements that can't all be correct ie If there is no contract as between DPD and myself then I cannot be subject to the terms and conditions of a non existent contract thus I can look to the Contacts(Rights of third Parties) Act for comfort..

Is there any merit in  on, a Without Prejudice basis, emailing her late next week pointing out the problem with her assertion(s).  Would she/DPD be likely to be sufficiently embarrassed to back down completely and settle as  the Judge might well chuck the whole defence out at the hearing as it is based on a nonsense. OR to approach her on the basis that I would like to reach as much common ground as possible and agree that there is no contract and therefore no T&C's etc because DPD cant have it both ways. This second thought is on the basis that the Court at a hearing can be made aware (hopefully) that I have continued to invite discussion? 

I am assuming that DPD would not be allowed to come up with a completely new defence which could be submitted and accepted so late in the day. 

 

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Thank you. 

 

I have made a second interim donation to acknowledge your help and patience.

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I have made the amendments to my NOTES as recommended.

Out of curiosity I checked re Packlinks Contract Terms as provided by dpd and found this:

Applicable Law
These Terms of Use of the Website are subject to Spanish law.

18. Applicable legislation and jurisdiction

This contract shall be governed by Spanish legislation, which shall apply to the provisions of this contract

regarding its interpretation, validity and execution. The parties submit to the authority of the Courts and

Tribunals of Madrid.

As an exception to the foregoing, the parties submit to the competent Transport Arbitration Boards, in

accordance with Spanish law, to resolve disputes whose amount does not exceed €15,000, provided that said

disputes involve ground transportation services

 

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Been to court this morning for the Dispute \Resolution Hearing.. 

 

Court hearing lasted about 30 minutes.

Judge had clearly read most if not all of the papers. He had missed Packlink are a Spanish Company and any claim against them would be under Spanish Law.

He didn’t invite either party to state a case other than provide him with a summary of their overall position. I made the point that if DPD say there is no contract then they cannot rely on the T&Cs as per their argument.

The outcome was he indicated that DPD probably had the stronger case but that my position was arguable. He sought a compromise, none was possible. I did indicate minor flexibility DPD declined outright. DPD also indicated that any compensation normally provided in relation to lost parcels was determined by the weight of the parcel not its contents and on that basis they would offer around £24.00.

One major stumbling block seems to be that DPD are arguing that if I am claiming under the Contracts( Rights of third Parties)Act1999 it may be that as a consequence I have to abide by and accept the contract terms and conditions of DPD’s notional contract if I claim to be a discernible party to it ie the sender. Do you have any thoughts on that please?

Next

would I alter the name of the defendant to Packlink and pursue a claim against them as suggested by DPD. I said no because to do so would mean proceeding under Spanish Law which would put me at a distinct disadvantage re jurisdiction, understanding and location and also lose any rights under English Law. He accepted that was a valid point.

He recognized the case at Brentwood Crown Court might have relevance depending on how the result was achieved and who heard the case .

His decision was to refer the Case to a formal hearing in December after hopefully a transcript of the Brentford Case is made available. If it is not published by November I need to advise the Court and seek a postponement.

Not sure where to go from here.

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Not too sure why he felt DPD had the stronger case, it just came out in an overall summary he put forward and there wasn't the opportunity to ask why. 

I'll read about the Unfair Contract Terms Act 1977 to be better informed.

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22 minutes ago, StoneCross said:

Unfair Contract Terms Act 1977

I dont think he was voice recording but a lady sitting behind us ( Claimant and Defendant) was very busy typing into probably a laptop. Will it be possible to obtain a copy of that typed record?