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

[StoneCross]

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

[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.

 

[StoneCross]

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.

[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

[StoneCross]

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

[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
 

[StoneCross]

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.

[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.

 

[StoneCross]

OK understood. Thank you.

[StoneCross]

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. 

 

[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

[StoneCross]

Thank you. 

 

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

[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.

[StoneCross]

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

 

[BankFodder]

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

[StoneCross]

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.

[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

[StoneCross]

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.

[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

[StoneCross]

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?

[BankFodder]

Yes.

EX107

[StoneCross]

Have downloaded EX107. Do I need to order transcript of whole proceedings or judge Summary or other specific element listed on EX107.

Will complete tomorrow and raise any questions with you tomorrow morning..

[BankFodder]

The summary I think