Parcel monkey disregard for consumer rights. Need legal advice.

mta999

"ParcelMonkey are a broker, they never touched your goods. "

True but I assume the OP is not claiming against parcel monkey as such but against the insurance which they purchased.

To me this thetefore becomes an insurance claim problem, but not really my area of expertise as to whether this is a true insurance policy ie can you eventually go to the insurance ombudsman. 

Alderbank

To win a claim in negligence you must prove four elements:

1. Duty of care: They must owe you a duty of care
2. Breach of duty: They must have breached that duty
3. Causation: that breach must have caused the loss or damage
4. Loss: the loss must be recoverable.

If you bring an action, they will concede there was a duty of care. However they will counter that they had complied with the duty of care because they had risk assessed the process of handling goods in their automated processes and as a result have placed a number of contract terms in place to ensure your goods would not be damaged by their processes. They will claim that you breached the contract by choosing to ignore those contract terms, and any damage to your goods occurred as a direct result of your breach of contract.

Those terms, which @sheramber has usefully listed above, say you must wrap your goods eg. in bubble-wrap and tape then place the goods entirely inside a suitable box with all void spaces being packed with shock-absorbing chips or granules.
That inner box must then be placed inside an outer box which must be a cardboard, timber or metal box as appropriate for the weight and fragility of your goods, also insulated with suitable shock-absorbing materials.

You admit that you did not comply with those T&Cs. In a b2b contract all terms are fully binding on both parties.

I don't think your claim in negligence would succeed.

user1977

mta999 said:

I assume the OP is not claiming against parcel monkey as such but against the insurance which they purchased.

To me this thetefore becomes an insurance claim problem, but not really my area of expertise as to whether this is a true insurance policy ie can you eventually go to the insurance ombudsman. 

I doubt there's any actual insurers involved (unless the claim is massive), these things will be settled out of the pockets of the courier company.

visidigi

user1977 said:

mta999 said:

I assume the OP is not claiming against parcel monkey as such but against the insurance which they purchased.

To me this thetefore becomes an insurance claim problem, but not really my area of expertise as to whether this is a true insurance policy ie can you eventually go to the insurance ombudsman. 

I doubt there's any actual insurers involved (unless the claim is massive), these things will be settled out of the pockets of the courier company.

Actually they won't and its not insurance, nor sold as an insurance product (which has different regulation) - its liability. If you look at the T&C's they say they don't sell insurance:

We do not insure the Goods, nor can we arrange insurance of the goods. Insurance of your goods will be your sole responsibility and we cannot give any advice concerning insurance.

And the coverage they do sell is entirely labelled as liability in section 7.

One of the reasons why these 'middlemen' / 'resellers' are so cheap is that they don't get any support from the courier firms they use and they self protect the liability coverage they offer (which is why the terms are different on these sites versus direct with the courier company).

ParcelMonkey are actually owned by the same parent company as Parcel2go. They both have a great deal of experience with consumers, claims, damage etc. 

Gehngus

I'd be wasting my time and effort it seems.
I have also contacted Parcelforce whom are being more helpful. But the extra insurance cover wasn't taken through them.

The better news is that the recipient has now agreed to keep the damaged boiler for parts which will lessen the loss.

And I have learned a lesson. That in itself has value.

I will of course have to create a personal ebay account for my occasionally personal sales.
The accounts I have with eBay were from a business I have stopped selling on, and it can not be reverted to personal.
I just use it occasionally due to having earned  40k feedback and hang onto it in case I decide to start re-selling as a business again. I belive a business with this feedback may have value. Something else to look into.

But for personal sales it will be a problem. 

Thanks for all your input.

A_Geordie

Gehngus said:

I will of course have to create a personal ebay account for my occasionally personal sales.
The accounts I have with eBay were from a business I have stopped selling on, and it can not be reverted to personal.
I just use it occasionally due to having earned  40k feedback and hang onto it in case I decide to start re-selling as a business again. I belive a business with this feedback may have value. Something else to look into.

But for personal sales it will be a problem. 

Just to point out that the Consumer Rights Act does not prevent you from acting as a consumer simply because you used a former business account. It will be a question of fact. 

The definition of a trader in the CRA means a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf.

The CRA also goes on to say that A trader claiming that an individual was not acting for purposes wholly or mainly outside the individual's trade, business, craft or profession must prove it. So the onus is on ParcelMonkey / Parcel Force to prove you were acting in the course of your business.

Suck it up and take the loss you've incurred or take a punt on suing ParcelMonkey (a claim under the CRA) or Parcel Force (a claim likely to be Torts (Interference with Goods) Act 1997 for negligence) or both as defendants. Question is whether you have the time and effort to see it all the way through. 

Okell

@Gehngus

You might want to read this thread (there are two cases)  Couriers, lost parcels and unfair terms — MoneySavingExpert Forum

And here:  Parcel protection insurance | MSE

Gehngus

Thanks Okell.
This was my point. That terms and conditions can't be used to "just get away it".

The case is very interesting and this shows my point exactly.

The terms and conditions are unbalanced. So far in fact that one could say "if you don't double box it, add tons of packaging and the rest, then we have a right to drop it and just not compensate".

It's just wrong.

Someone above said I couldn't consider consumer rights because I sold it from a business account whereas the courts in this case states "the Defendant was clearly acting as a trader and the Claimant was clearly a consumer."

I paid for a service?

So consumer rights do still apply?

In my case "The contract was for the Defendant to arrange for the parcel to be taken from A to B" with care and most certainly without being dropped. Fortunately I can prove it was dropped and then sworn at.

So all the babble above about not fitting in with parcel monkey very strict terms and conditions so its my own fault is totally false because terms that allow goods to be mis-treated can not be fair".

"Section 62 of the Act provides that an unfair term of a consumer contract is not binding on the consumer".

Again. Unfair.

Also "The courier has a legal duty of care over your parcel while it's in their possession, and you have a right to claim if this duty is breached, especially if it results in loss or damage."

As mentioned earlier T&c's and packaging terms cannot override the fact that it was dropped.

The courier does still have a duty to actually treat the goods with care (as contracted) and the damage is clearly due to their negligence or breach of contract.

This case sets a judicial president of sorts for a lost parcel. If there is similar for negligence it would help. But i feel I'm a long way off going to court as that is the last resort.

ParcelMonkey have dismissed my case so will likley no longer respond.

What is my next course of action, and can I add the bill (if there is one) to the total?

user1977

Gehngus said:

Someone above said I couldn't consider consumer rights because I sold it from a business account whereas the courts in this case states "the Defendant was clearly acting as a trader and the Claimant was clearly a consumer."

I paid for a service?

So consumer rights do still apply?

No, unlike the case quoted you were a business paying for a service, so the additional consumer rights implied by statute do not apply.

A_Geordie

user1977 said:

Gehngus said:

Someone above said I couldn't consider consumer rights because I sold it from a business account whereas the courts in this case states "the Defendant was clearly acting as a trader and the Claimant was clearly a consumer."

I paid for a service?

So consumer rights do still apply?

No, unlike the case quoted you were a business paying for a service, so the additional consumer rights implied by statute do not apply.

Did the OP say they were acting in the capacity of a business? Maybe I missed it but I think they said they used a business account, that doesn't automatically mean they were acting in the capacity of a business. I think everyone was very quick to assume that the OP was trading as a business but an earlier post suggests the OP is no longer trading at the time of the sale and the account was was simply used due to there being an existing number of reviews, but also that it couldn't be converted to a private account - seems a plausible explanation to me. 

If Parcel Monkey was used outside of eBay and the business account then again, it could be argued the OP was acting as a consumer.