Yodel courier forged my signature

naedanger

bris wrote: »

The fact is the courts will consider it delivered if the delivery driver says so, there is no way the OP can counter that.

The court will not automatically believe one side or the other as the courts will obviously understand either side could be mistaken or lying.

If there is a dispute they will hear the evidence from both sides then decide based on all the evidence what to believe.

If the driver's version was always accepted then there would be no need for any signature and no protection against any drivers that are dishonest.

unholyangel

bris wrote: »

It doesn't need to be the OP that signs for the parcel, it's considered delivered when signed for by anyone.


Can you imagine all the fraudulent claims if delivery companies had to get the addressee signature, never going to happen, for one thing millions of parcels would not get delivered every day.


Look at the scenario, I buy a 2 grand telly, get my brother to sign for it then claim I never received it, you think this is going to work? Of course not, all this nonsense about it must be the addressee signing for it is exactly that nonsense. The fact is the courts will consider it delivered if the delivery driver says so, there is no way the OP can counter that.

The courts cant make the law up as they go along. And if they intended for it to be like you say, then they wouldnt have specifically entered the exact same provision for passing of risk into both the CCRs and CRA which is:

Passing of risk

(1) A sales contract is to be treated as including the following provisions as terms.

(2) The goods remain at the trader’s risk until they come into the physical possession of—

(a)the consumer, or

(b)a person identified by the consumer to take possession of the goods.

And the explanatory notes only stipulates:

Section 29: Passing of risk

158.This section determines where risk relating to the goods supplied under a sales contract lies before and after transfer of physical possession of the goods to the consumer. Under the section, the risk lies with the trader until the consumer has physical possession of the goods, at which point risk is transferred to the consumer. However, if the consumer stipulates that the trader must use a carrier of the consumer’s choosing, and that carrier was not offered by the trader as an option, the risk transfers to the consumer at the time that the goods are passed to the carrier.

Consumer Rights - so called because they're heavily balanced in the consumers favour by having clauses like the above. Consumer rights aren't about protecting the profits of a retailer.

usefulmale

OK Rumpole, why not put your money where your mouth is? PM the OP and offer to cover any losses (including refunding the cost of the item) should they lose the case.

If you win, you can come back here and regale us all with tales of how you snatched victory from the jaws of almost certain defeat.

Frankly, if you do pull off such a feat, you would have a glittering career representing others in similar positions. You could even move to win cases for sellers hit with INR claims and there is no shortage of clients there.

I, for one, would certainly hire you.

naedanger

usefulmale wrote: »

OK Rumpole, why not put your money where your mouth is? PM the OP and offer to cover any losses (including refunding the cost of the item) should they lose the case.

I have not said the op will definitely win, merely that the court will look at all the evidence and decide based on that. (I am a bit surprised this is contentious.)

No legal case is ever certain and to accept the risk of loss for no reward would not be sensible.

Furthermore I am not even recommending the op takes legal action. They need to weigh up the cost (in time and money) and consider the possibility they will not be paid even if they win. For £60 I am not sure I would take the risk of suing an ebay seller.

usefulmale

naedanger wrote: »

I have not said the op will definitely win, merely that the court will look at all the evidence and decide based on that. (I am a bit surprised this is contentious.)

No legal case is ever certain and to accept the risk of loss for no reward would not be sensible.

Furthermore I am not even recommending the op takes legal action. They need to weigh up the cost (in time and money) and consider the possibility they will not be paid even if they win. For £60 I am not sure I would take the risk of suing an ebay seller.

Actually, I was referring to unholyangel.

But in answer to your post, the OP has no evidence that they have not got the package, merely their say-so.

As the potential plaintiff, it would be up to them to prove their case with evidence, not just say-so.

As I have said before, they are in an unenviable position.

naedanger

usefulmale wrote: »

Actually, I was referring to unholyangel.

Maybe they will take up your offer but I doubt it.

But in answer to your post, the OP has no evidence that they have not got the package, merely their say-so.

As the potential plaintiff, it would be up to them to prove their case with evidence, not just say-so.

The op's say-so is evidence. Not necessarily conclusive but probably more believable than the driver's evidence if the signature does not match the op's, and the op can provide evidence they were at work when the item was supposedly delivered. However a court will see all the evidence and be in a much better position to decide.

As I have said before, they are in an unenviable position.

I agree with that.

steampowered

usefulmale wrote: »

As the potential plaintiff, it would be up to them to prove their case with evidence, not just say-so.

I think this is the key point. The Op is being fobbed off. Noone appears to be investigating this properly - not the seller and not Yodel.

The reason why I think an LBA is a good idea is because it forces the seller and Yodel to investigate the situation properly. For example, Yodel should provide a copy of the signature and details of when the package was delivered.

The court's Civil Procedure Rules rules require the parties to exchange information which is key to the case before a claim is brought, so they are required to provide this information (and could be liable for the Op's costs in bringing the claim if they fail to do so).

If the Op did bring a small claim, it would be easy for the Op and difficult for the seller/Yodel. The court fees for small claims are pretty small. As the Op would be suing a company, the case would be allocated to the Op's local county court so he wouldn't have far to travel. He doesn't need a solicitor and it is easy for him to do it himself. That is why I think the Op is holding the cards and has leverage to get an acceptable resolution.

Marktheshark

If a scribbled forged signature was proof, every bank in England would be broke.

steampowered

usefulmale wrote: »

I agree, if the OP is genuine, that it is a poor position to be in. An INR in reverse almost, which sellers have to suck up all the time, but I don't think the OP helped themselves by jumping in and start banging on about consequential loss

I agree. Talk of consequential loss is not helpful.

At the risk of going a bit off-topic, I would point out that the legal meaning of "consequential loss" is much narrower than the dictionary definition would suggest and most people would think. In essence, "direct loss" is a loss which a reasonable person would predict as being likely to arise from a particular breach of contract and "consequential loss" is everything else.

For example, if you contract a courier to deliver an expensive item on a particular day and they fail to do so, and you have to take an extra day off work, that is entirely predictable by a reasonable person and hence it is a "direct loss". In law it is not a "consequential loss".

Most couriers will say in their T&Cs that their maximum liability is capped at the value of the item. That is enforceable. But not all sellers have this provision, and the seller is liable for arranging delivery.

The difference between "direct loss" and "consequential loss" is explained here: http://www.out-law.com/en/topics/projects--construction/construction-claims/direct-and-indirect-loss-for-contractors/

the_lunatic_is_in_my_head

Easiest thing is for the OP to contact their local Yodel depot, preferably in person if it's not too far away, they are far less likely to fob them off than CS and can check the GPS data as well as with the driver.