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

[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

 

[StoneCross]

In a previous advice  you stated in quotes

" It is a question as to whether you were a discernible beneficiary of the contract .The fact that either you sent the item or you were, the recipient of the item makes it very clear that you were a discernible beneficiary of the contractual arrangement."

I've been re-reading the Third Party Contacts Act and for my own better understanding can you reference for me the Section and paragraph of the Act you refer to above please I suspect I will need to understand it if I am questioned on the assertion in due course. Thank you

[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

[StoneCross]

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?

[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.

[StoneCross]

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

[BankFodder]

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

[StoneCross]

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

[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?

[StoneCross]

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

[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?

[StoneCross]

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

[StoneCross]

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. 

[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

[StoneCross]

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

[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

[StoneCross]

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

[StoneCross]

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.

[StoneCross]

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

DISPUTE RESOLUTION HEARING STATEMENT.pdf

[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.

[StoneCross]

amended Dispute Hearing doc amended as attached

DISPUTE RESOLUTION HEARING STATEMENT1a.pdf

[StoneCross]

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

[BankFodder]

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

 

[StoneCross]

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.?

[BankFodder]

1st Aug??