Problems with Evri - Lost Parcel

albizo74

user1977 said:

Yes, I can understand musical instruments being more prone to damage, but I don't see why they're intrinsically more likely to go completely missing...

In my case, the guitar was secured in a hard case which would probably have to be dropped from a couple of meters height (and without the padding around) in order to sustain any significant damage.
This can be a problem per sé, as the size and the shape of the parcel (not to mention the big "Thomann" sign on both sides would make it almost immediately recognizable as an electric guitar in its flight case. 

albizo74

Thank you all very much for your advice, I really appreciate it.

I would imagine I have to wait until they come up with an outcome (i.e. before they either accept or reject my claim) before issuing a Letter Before Action?

albizo74

albizo74 said:

Thank you all very much for your advice, I really appreciate it.

I would imagine I have to wait until they come up with an outcome (i.e. before they either accept or reject my claim) before issuing a Letter Before Action?

Sorry, I meant after they either accept or reject my claim..

Hoenir

albizo74 said:

I would imagine I have to wait until they come up with an outcome (i.e. before they either accept or reject my claim) before issuing a Letter Before Action?

Only reasonable to allow them to do so. 

Okell

albizo74 said:

albizo74 said:

Thank you all very much for your advice, I really appreciate it.

I would imagine I have to wait until they come up with an outcome (i.e. before they either accept or reject my claim) before a Letter Before Action?

Sorry, I meant after they either accept or reject my claim..

Not if they accept your claim...   

If they don't... then yes, I would be sending a LBA.

I think you submitted your original claim 10 days ago and they told you it would take up to 28 days to resolve(?)

So if you can wait another 18 days I would do so I think.  See what others here say.

You can google LBA and LBC to see what sort of form one should take.  Essentially you briefly explain what has happened and why you think they are liable.  Refer to the arguments posted previously (reasonable care and skill... can't exclude liability... unfair contract terms).  You tell them how much money you want (£350 + £25 + court fee I think) and give them a time limit in which to pay otherwise you will issue a court claim against them without further warning.  Bearing in mind they've already had 28 days I think 14 days would be reasonable to give them, but see what others think.

Bear in mind that once you reach the stage of sending a LBA you really need to be prepared to follow it through because they will probably try to call your bluff on the basis that they don't think you will carry out your threat.

Also bear in mind that there is no guarantee of victory.  It's up to you what you decide

But if you write a convincing LBA they just might roll over...

Okell

albizo74 said:

... Evri admitted that the guitar went missing from their local warehouse, I have a record of this both in an email string and in a conversation that took place on the messenger service on their Facebook page. The way I see it, this wasn't an "accident" but rather a consequence of Evri's negligence...

I'd overlooked this.

Sounds like an outright admission by Evri that they have not provided the service with the reasonable care and skill required by the legislation.    

I'd say you are correct and it's a textbook definition of negligence! 

And you have that admission in writing?  Don't lose it!

albizo74

Okell said:

albizo74 said:

Evri admitted that the guitar went missing from their local warehouse, I have a record of this both in an email string and in a conversation that took place on the messenger service on their Facebook page. The way I see it, this wasn't an "accident" but rather a consequence of Evri's negligence.
Has anyone experienced a similar issue, and was it resolved in any way?

Thanks in advance!

I'd overlooked this.

Sounds like an admission by Evri that they have not provided the service with the reasonable care and skill required by the legislation.    

I'd say you are correct and it's a textbook definition of negligence! 

And you have that admission in writing?

Yes, I believe I have. 

(Images removed by Forum Team)

Okell

@albizo74 -  OK.  Looks like an admission to me...

I suggest you read all this thread (including attachments) from the Consumer Action Group - The courier industry insurance requirements are unenforceable because: - Postal and Delivery Services - National Consumer Service (consumeractiongroup.co.uk)

I'd also suggest you browse this page for advice on suing couriers generally and Evri in particular  -  Postal and Delivery Services - National Consumer Service (consumeractiongroup.co.uk)

Couple of things to note regarding those threads:

First, you'll see some of them are suing Evri on the basis of something called contractual third party rights.  You can ignore those threads.  They are only relevant when Evri lose stuff that somone else is sending to you.  In this case it's you sending something to someone else so you are relying on your rights under Consumer Rights Act 2015 (legislation.gov.uk)

Second, most of the threads you are interested in are ones where the consumer opted not to buy Evri's insurance cover.  Your case is slightly different I think as my understanding is that you could not buy cover for musical instruments.  However, in principle your argument is the same - ie:

(a)  s49 of the Consumer Rights Act 2015 (legislation.gov.uk) requires Evri to exercise reasonable care and skill in providing the service;
(b)  Evri have admitted to losing the guitar which is itself proof that they have failed to exercise reasonable care and skill and have been negligent;
(c)  s57 of the Consumer Rights Act 2015 (legislation.gov.uk) prohibits Evri from attempting to exclude or restrict their liability for breaching s49;
(d)  in any case, any term attempting to restrict Evri's liability is an unfair term under Part 2 of the Consumer Rights Act 2015 (legislation.gov.uk) and therefore unenforceable.

Third, you will see from those threads that Evri usually won't roll over and are likely to push you all the way to court.  However, they don't really want it to get to the stage of the court making a judgment as they don't want to have decisions recorded against them and publicised - even in small claims where judgments don't create a precedent.

It's up to you if you want to proceed.  Good luck if you decide to go ahead.

If you decide to go ahead you can always ask for advice on CAG too.  They're very good at helping you draft letters before claim, particulars of claim, witness statements etc.

Let us know how you get on

the_lunatic_is_in_my_head

Okell said:

the_lunatic_is_in_my_head said:

Okell said:

 that they aren't prohibited altogether (forget what the insurance covers - this isn't about 

I know you've been reading a bit over on the other forum, where the company has a box asking what is inside the parcel and that is filled correctly, does it matter if the item is prohibited altogether? Haven't they accepted an alternation to the terms by accepting the contract as given to them by the customer? 

I didn't express that very well.

If Evri have accepted the guitar knowing that it's a guitar, then I don't think Evri can then go back and say it's prohibited so you're not entitled to anything.  Yes?

But if musical instruments/guitars are prohibited and the OP never told Evri it was a guitar, that may not be so clear cut.

[But see next post]

Thanks @Okell I thought so, as you say just the way you phrased it implied prohibited was prohibited either way, perhaps from an example you'd seen of someone losing a claim on that basis but good to hear that's not the case (as far as we know thus far)  

Okell said:

First, you'll see some of them are suing Evri on the basis of something called contractual third party rights.  You can ignore those threads.  They are only relevant when Evri lose stuff that somone else is sending to you. 

Not to side track from the OP too much, surely Evri excludes third party rights as part of the contract? 

Okell

the_lunatic_is_in_my_head said:

Okell said:

the_lunatic_is_in_my_head said:

Okell said:

 that they aren't prohibited altogether (forget what the insurance covers - this isn't about 

I know you've been reading a bit over on the other forum, where the company has a box asking what is inside the parcel and that is filled correctly, does it matter if the item is prohibited altogether? Haven't they accepted an alternation to the terms by accepting the contract as given to them by the customer? 

I didn't express that very well.

If Evri have accepted the guitar knowing that it's a guitar, then I don't think Evri can then go back and say it's prohibited so you're not entitled to anything.  Yes?

But if musical instruments/guitars are prohibited and the OP never told Evri it was a guitar, that may not be so clear cut.

[But see next post]

Thanks @Okell I thought so, as you say just the way you phrased it implied prohibited was prohibited either way, perhaps from an example you'd seen of someone losing a claim on that basis but good to hear that's not the case (as far as we know thus far) ...

Another thread on CAG addresses one of the issues in this case - that musical instruments aren't prohibited from carriage per se, but Evri try to say that they won't pay any compensation if they are lost or damaged.

Again that thread rubbishes this argument.

It's another thread @albizo74 should read and it's here:  The courier industry and your lost or damaged property – some general principles - Postal and Delivery Services - National Consumer Service (consumeractiongroup.co.uk)

It's covered under "Non-compensation items" and that thread summarises all the other arguments too

the_lunatic_is_in_my_head said:

Not to side track from the OP too much, surely Evri excludes third party rights as part of the contract? 

All I was trying to say there is that I think the OP can ignore any arguments about 3rd party contractual rights because I don't think those arguments are relevant here.  (I'm assuming the OP contrcated directly with Evri and there are no intermediaries involved).

I'll admit I don't know much about the 3rd party contractual rights legislation, but as I think I've mentioned to you before, CAG like the argument.

AIUI it becomes a relevant argument in two situations.  The first where the consumer doesn't have a direct contract with Evri but has used a "parcel broker", and the second where the consumer has bought something from a trader and the trader has contracted with Evri and Evri have lost or damaged the goods.

But apart from that I'm not really familiar with the argument.  But CAG say it works