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

[BankFodder]

Yes I found that – but what I asked you was whether you could find this on their website and whether that is included in the contract that they make with customers who send their parcel through them directly

[BankFodder]

What we need to see is the contract between Packlink and DPD.
It is not clear whether the contracts in their bundle are intended be the contracts if they agreed directly with you to carry your goods or whether they are the contract they have with Packlink.

The terms and conditions which have just posted certainly seem to be an example of their contractual terms with you if you contracted with them directly.

We need to know if the contracts in the bundles are their contract with Packlink – and they don't say at all who the parties to those contracts might be

[BankFodder]

For the moment, this is what you need to understand:

(this is from the witness statement on the first page of the defendants bundle)

Quote

1. The Claimant dropped his parcel to a DPD Pick up shop as instructed by the Defendants
customer Packlink Shipping Ltd.
2. The Claimant cannot reply on Rights of Third Parties Act 1999 and Consumer Rights Act Right
Act 2015.
3. As per the Defendants Terms & Conditions S.23. THIRD PARTY RIGHTS “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.” (Doc 1)
4. The Defendant stands by the fact that the Claimant is not a customer of the Defendants.
5. The defendant confirms there is no technicality as there is also a sister company which is
another comparison website. DPDGROUP UK Ltd is a separate entity in its own right.
6. The defendant is unaware of any contact that the claimant offered. But would not make any
difference as the Claimant is not a customer of the Defendant.
7. The Claimant needs to issue against Packlink Shipping Ltd as they are

they are saying that you are bound by their contractual term – section 23 – but says that you do not have any rights under the Contracts (Rights of Third Parties) Act.
This is all very well – except that in their paragraph 4 – they make the point that you are not there customer – in other words you don't have a contract with them.
They repeat this assertion in paragraph 6 – where once again they say that you are not a customer of DPD.

So if you're not a customer of DPD and you are not in a contract with them, then it is impossible for you to be bound by section 23.

Assuming that the contract that they are referring to is the contract that they would have made with you if you had sent the parcel directly, then you don't have a contract with them – therefore you aren't bound by any of the terms and conditions including section 23.

This is a bit convoluted but please will you tell me if you understand this. It will be helpful that if you do understand that you could post up your understanding in your own words.

If you don't understand then please say so and help me to explain it more clearly.

This is a vital element of their defence and so it is a vital element that you must be in control of
 

[BankFodder]

You should probably understand that the courts are pretty lax about time limits for the filing of these kinds of things. Certainly if it was only a few hours over the limit it's not worth making a song and dance about it.

 

[BankFodder]

No I don't think it will be a good idea.

They will simply adjust their position and be prepared for your arguments in court and give you a more difficult time or even put you in a position where you might lose..

Keep your powder dry until the court hearing and then you can deliver your arguments and it will be too late for them to modify theirs and it will be a matter for the judge.

Don't go into a fantasy world about this

And by the way, you have completely misunderstood the effect of without prejudice

[BankFodder]

Concerning the donation you made, I've emailed you.

We are very grateful to receive your donations – but I think that it's probably enough now. Let's wait until you get a result and see how you feel then.

[BankFodder]

Thank you. Makes it even more difficult for a UK based national to bring an action against Packlink

[BankFodder]

Quote

The outcome was he indicated that DPD probably had the stronger case

Why is that?

Quote

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?

Yes that is correct, subject to the Unfair Contract Terms Act 1977

[BankFodder]

I think that we should order a transcript of the decision.

Was he recording it?

Also, if they are relying on the contractual terms, and of course you are also then you should ask for a copy of their contract with Packlink 

 

Please download a copy of form EX107.

Complete it. 

Choose the Transcription Agency as the company to do the transcription. We have good relations with them.

If it is alright with you, please will you put yourself down as the source of payment and we will reimburse you.

I expect that it will be only about 50 quid or so.

If you can do that and email it to the court tomorrow then that would be great.

Please let us know if you can manage this

[BankFodder]

Yes.

EX107

[BankFodder]

The summary I think 

[BankFodder]

In no particular order:

12 = no

Just judgement will be fine

Not urgent

Where does it say you can't use the transcription agency

12 working days is fine

[BankFodder]

I think that might simply refer to the complaints process.

Why don't you telephone the transcription agency and ask them. They are very approachable

[BankFodder]

Eventually yes but you may as well wait for the transcript for the moment. There is lots of time.

Soon we should write to the other side and ask them for a copy of their contract. We will sort that out in a few days.

Meanwhile you may be interested to know that somebody has made a donation to the cost of the transcript.

They want simply to be known as a "Well-Wisher".

If you have a PayPal account Please let me have the email address for it to our admin email address and I will forward the sum to you.

[BankFodder]

Very interesting discovery.

I'm away at the moment. I will have a look at it next week

[BankFodder]

I haven't looked through the document which you posted on the 16th – but I have just scanned to the helpful two page document which you posted on Saturday.

The reasoning seems absolutely excellent. However it seems to me that you are proposing to approach DPD about this before the trial.

I think this would be a serious mistake.

I think that it would be a better approach to compile this into an "additional bundle" and to produce it at the hearing. If you can meet the DPD representative outside the court five minutes before you according, then give that person a copy of the extra document which you are intending to provide to the judge.

When you going to the court you can tell the judge that you have only recently discovered this document and it costs a grave light over DPD's position that there was no contract with them because the evidence is that Packlink is simply a conduit to providing a direct contract between you and DPD and in that case, although you still stand by your position that you enjoy rights of third parties against them if the judge considers that there is no direct contract with DPD, on the basis that there is a direct contract then you have the right to sue them and furthermore you are entitled to be treated as a consumer with all of the protections contained in the Consumer Rights Act.
In other words I would prepare but keep my powder dry

[BankFodder]

Have you submitted the original bundle?

[BankFodder]

Let's wait until then and we can send the second bundle along with the judgement.

[BankFodder]

Yes, let us know in advance so that we can work out a message to go with the items which you have found along with the transcript. I should tell you that there are some problems with the transcript the moment. We made an application on our own name and the judge refused it – I'm not sure that she was entitled to – but now it has been reapplied for by the claimant.
I am pretty confident that we will have it by October

[BankFodder]

@StoneCross

please can you help us with this

 

[BankFodder]

That is probably it. Thanks

[BankFodder]

Sorry but I don't all together understand will post above.

[BankFodder]

I am back at my desk – and don't have to use a telephone.

The message from the "Transcription Agency" – I take it, is the result of a contact from you asking them what has happened to the transcript and they have kindly copied you into a message which they have sent to the court. Is that correct?

This is the transcript of the decision which was made in your pre-trial hearing??

Your notes documents represents your feelings about how your approach to the revelation of the Packlink document should be handled. This correct?

I think it would be helpful if you would post this kind of thing as normal into a post in the thread rather than a separate PDF document. We would normally expect PDF documents to be some kind of official document or something which was sourced outside the thread.


The query to DPD document – is the same. This is a document containing your own thoughts which would be much easier to deal with and less confusing if you could simply post them on the thread in the normal way. Once again, posting them as a separate document would normally suggest that they are some official document or something which has been sourced outside the forum.

In terms of your feelings about how the information relating to the Packlink terms and condition should be revealed, I agree that they shouldn't be held on to the last moment. I agree that the court should not be misled – but I think that they can be held on to for a lot longer and certainly not revealed yet. We should wait for the Farooq transcript which I hope will be along in September.
In fact I was going to suggest to you that you might be kind enough to make your own separate application for that transcript from the judge. We will supply you with all the details and you can explain that the transcript has been specifically requested by a judge in your own case. This should move it along.

Of course we will pay the cost of the transcript. If it is an original copy then I expect it won't cost more than between 50 and 75 quid. If it is simply a copy of a case which has already been transcribed then it will only be a tenner or so.

It will be helpful if you could post the contents or at least the summaries of those two PDF documents into a post. I would like to remove the PDFs because they are confusing to other people who might visit this thread and also make following the story very much more lumpy

[BankFodder]

Any news on the transcript application please?
If not, maybe you might have time to phone the court and also the transcription agency.

Thanks