Court claim (goods not delivered - taken supplier to court)

[gio70]

Hi.

Brief details of my case (I can't attach my claim form, which also contains exhibit list and DPD's own "proof" of delivery, as well as the defense - both are scanned copies, as I don't have the necessary permissions):
1. In May last year I have ordered Epson printer from a supplier, which used DPD to deliver it.
2. On delivery date, nobody came and when I checked DPD's web site, I found that my printer was, apparently, "delivered", with an image attached that contained somebody else's property front door and the printer appearing flat as a pancake - a clear forgery
3. I tried to resolve this with DPD first (using their online chat facility), but they directed me to contact the supplier, which I tried to do over the phone (I was cut off after been put on hold for more than 30 minutes and I did try twice with no success).
4. As I desperately needed my printer (my old one broke and I urgently needed to print some documents that I've had to send through the post), I ordered another printer directly from Epson UK at an additional cost of £130.
4. Sent a letter of complaint to the supplier - no response (and no refund either)
5. About two months later, sent a letter before action to the supplier - no response (and no refund either)
6. Submitted a court claim, claiming the original cost of my order (£249.00), £130 for the difference I've had to pay to order the same item from Epson UK directly, as well as £100 for caused distress and anxiety as a result of the supplier trying to deceive me
7. About 2 weeks after I submitted the claim, supplier refunded my order cost (as per my original order - £249.00)
8. Supplier then submitted a defense, in which they make the following points (in brief):
8.1 They claim they don't owe me any money as, from their point of view (relying on DPD and assuming the image supplied to them as proof of delivery is genuine), everything was in order;
8.2 They claim no liability as this was all DPD's fault;
8.3 They claim that I have to prove that the image (supplied by DPD as "proof" of delivery) is not genuine. In other words, I have to prove that the image is not from my property and that it is forged
8.4 They claim they haven't received any of my letters (despite the fact that I have sent both letters via recorded delivery and both of them have been signed on delivery - I attached the receipts as part of my claim)
8.5 They claim that the decision to refund my original order was a "business decision", they don't owe me the extra £130 I've had to pay to get a printer from somebody else either as this is a consumer contract
8.6 They claim they don't owe me the extra £100 for caused anxiety and distress as well, as this is not a "holiday contract"

So, given the brief history (above), my questions:

1. Where is the burden of proof for delivering my printer - myself (consumer) or the supplier? In other words, do I have to prove that I haven't got the item delivered, or does the supplier have to prove that they've delivered it? If it is the latter, then the entire premise that I have to provide proof falls apart and the onus is on the supplier

2. Can the supplier wash their hands off by claiming that this is all DPD's fault or are they jointly liable? If so, on what grounds (statute, case law?)

3. Can I claim the amount I specified in my claim for:
3.1 £130 extra costs for having to order the printer from somebody else and if so, on what grounds (statute, case law?);
3.2 £100 for extra anxiety caused for supplier having attempted to deceive me and if so, on what grounds (statute, case law?);

Thank you very much in advance.

[ostell]

You can't claim that £100 for distress, you can only claim for losses

It is the supplier who is responsible for delivery, they are responsible until it's in your hands. They are the ones with the contract with DPD, not you. It is up to them to claim from DPD for non delivery, ie breach of contract.

Precisely because it is a consumer contract you can claim for your additional costs under the consumer rights act 2015. What it cost you to recover from the non delivery

You have a picture of the door of your property, I assume it is different from that supplied by DPD. There's your proof that it was not delivered to you.


You should not be submitting documents at this stage, that comes later.

If you want to post images use the imgur hosting site and put the link on here

[gio70]

Thanks OSTELL.

So, to summarise your response:
1. The burden of proof is with the supplier, correct? In other words, I don't have to include any pictures of anything - they have to provide these and prove that this is my property in this picture and that's me accepting the delivery, correct? This is important, because if I don't have to prove anything, then I won't bother and just state in my response that the burden of proof is not on me, otherwise I have to attach something like Google maps (street view) pictures from my address.

2. Can the supplier wash their hands off with DPD? No? Is this from the consumer rights act 2015 - they are jointly liable under the act?

3.1 Can I claim the extra £130 I've had to spend to get a printer from another supplier as a result of their breach of contract? Yes? Again, is this from the consumer rights act 2015?

I get your point on 3.2 that I cannot claim £100 for anxiety and distress. Is there a statute/law that I can claim for for their attempt to deceive (obtaining goods by deception for example)?

My hearing is in just over a month. I have to submit a response (to their defense) by the end of this month. Here is another question: is it better to send them (and the court) a written response to their defense or is it better to do it verbally at the hearing itself (not let them prepare for it in advance)?

As for pictures: I'd have to extract all pages, make them into picture files (they are in a pdf right now) and then upload them to that site, rather then just attach them here as a pdf... that make take me a while to prepare...

[R0b]

1. The burden of proof rests with the supplier - s.28(2) of the CRA says that the goods remain at the traders risk until they come into the physical possession of the consumer or someone identified by the consumer. When we talk about the burden of proof, the requirement is to show with sufficient plausbility that something did or didn't happen. Once that threshold is reached, the burden shifts to the other side (in this case you) to show that what the supplier is relying on is simply not true or wrong.

Supplier will rely on DPD's evidence so you will need your evidence to support your claim, and this will be captured in your witness statement. I would also expect the supplier to say that due to COVID deliveries are not being physically handed over but left at the door and photographs taken. That may be so, but when I get a delivery during these times they take a photo once I've opened the door so they have evidence of my standing there with the package. As per s.28(2), the goods must come into the physical possession and it is not good enough for delivery companies to simply drop it off at the front door and leave it - the law is the law.

2. Supplier can do whatever they like. As Ostell said, it has absolutely zilch to do with you as your contract is with the supplier and not DPD. It's called privity of contract i.e. no person other than those who are party to the contract can exercise rights under it. Your claim is directly against the supplier only.

3.1 Yes, you should be able to claim the additional £130. It's a breach of contract and you have suffered a loss by not receiving the printer as agreed. Therefore, you have had to purchase the goods form elsewhere at an extra cost, which is a loss directly resulting from the supplier's breach of contract. You made reasonable attempts to resolve it but they ignored you. Their attempts to say it was never received if you have proof it was signed and delivered is pitiful and won't stand them in good stead in court. Anyway, you should be able to rely on s.19(9) and (10) of the CRA which says your remedies are not limited to those under the CRA such as right to reject.

3.2. Their argument that they're not liable because it's not a holiday claim is technically incorrect. The rule is 'loss of enjoyment' whereby one suffers distress, anxiety or inconvenience, disappoint or upset caused by the breach. The rule has derived from old case law such as Watts v Morrow and Farley v Skinner No.2 which gives a remedy where the contract is intended to provide peace, relaxation or pleasure (Google these cases, plenty of articles about them). To be clear, the rule is not confined to just holiday cases but they're the most common claims, and it could apply to a number of other issues: loss of broadband, house extensions such as a children's play room, landscaping for your back garden etc. all of these provide pleasure, relaxtion or peace in some way.

As for arguing deception, if you didn't allege that in your claim in the first place then you would need to pay £255 to amend your claim to include it and possibly pay the costs of the supplier to provide an amended defence. It's not called deception but fraud and that needs to be properly pleaded not just a couple of random statements, otherwise the court will throw it out. There's also the usual expectation that fraud cases are not normally suitable for small claims track and would likely end up on another track meaning costs are in play if you lose. I would recommend that you avoid this given the amount you are claiming is small.

You can file a reply to their defence addressing some of the points they have raised. It's a formal response and must be set out in a similar way to the defence with all the headings in the right place. You can't just send an email to the court and the supplier and that's it. Anyway, a reply might prompt them to not waste further money and look to settle your claim if you are able to point out some of their flaws. I suspect you may need to concede on the distress and anxiety unless you can persuade a judge that you were using your printer for pleasure or relaxation....

[gio70]

Thanks Rob. Awesome response - much grateful! I will make another attempt to attach my claim (2 pages, plus additional page with a summary of exhibits), as well as their defense (4 pages) and if that fails, I'll do a page-by-page attachments using the image site Ostell suggested.

I am a bit worried about this paragraph from your response:
"As for arguing deception, if you didn't allege that in your claim in the first place then you would need to pay £255 to amend your claim to include it and possibly pay the costs of the supplier to provide an amended defense. It's not called deception but fraud and that needs to be properly pleaded not just a couple of random statements, otherwise the court will throw it out. There's also the usual expectation that fraud cases are not normally suitable for small claims track and would likely end up on another track meaning costs are in play if you lose. I would recommend that you avoid this given the amount you are claiming is small."

I did say in my claim that this is a deception and I wonder whether I should have done that - you will see that from my claim when I attach it (one way or another).

Another pertinent point: I exchanged a few letters with the supplier as I suggested to them that if they are willing to offer me an additional £180 (to cover the difference of £130 plus £50 court costs), I am willing to settle and inform the court. They initially agreed, but started messing me about, saying they can't issue a cheque because of the pandemic (I wasn't willing to throw the dice and give them my bank details for privacy reasons) and when I told them the offer stands until I have to pay the hearing fee (£55), in which case I won't accept this amount even if they offered me it, 2 days before the court deadline, they said they are now willing to issue a cheque, but it was too late as no such cheque was received (just words on their part) and I've had to fork out the additional £55 to pay for the hearing.

All of this was was done "without prejudice save for costs" (heading on each response letter - the supplier did the same).

Let me try to add the attachments and if not, I'll create another post with all the pages as pictures...

[gio70]

Success! As you can see from the attached - the claim form, my exhibit list and supplier's defense. As this is a public forum, I've removed identifiable information for privacy reasons - hope that's OK. Forgot to add the picture, which the supplier claims as proof of delivery - that's not my property and that's not me at the door. Besides, that printer box looks flat as a pancake, so a clear forgery...

[ostell]

The flat looking printer box is just a result of perspective. Stand in your front door and get a friend to take a similar photo of your entrance, including the legs

[gio70]

Ostell, are you serious or just yanking my chain?

Also, I thought the burden of proof is on the supplier, not me, isn't that so?

Leaving the analysis of the shape of that box aside, do I have to prove that this isn't me in that picture and that isn't my property entrance?

Another query: as part of my claim, I've attached a copy of the letter of complaint in which I mention that I've made two phone calls to the supplier. I have a full recording of the second call (voice recording made from my mobile using an app lasting 30+ minutes when I was put on hold, nobody answered and I was cut off) - can I attach this as evidence as part of my response (the supplier denies such a call was made, so this is another opportunity to disprove his point) or is this illegal?

@R0b (and anybody else) - any comments on the documents I attached earlier?

[R0b]

I don't think there's anything wrong with Ostell in terms of what he said. Like I said, they're relying on DPD's evidence of it being delivered a d the judge doesn't know what your front door and hallway looks like, so do you just expect him/her to take your word when there's photographic evidence of a printer being delivered at someone's front door?

In my earlier post I said that the burden of proof is on them, they've provided evidence in the form of a photograph so that burden now passes to you. If you don't want to disprove their evidence then that's your prerogative but you will sharp find the judge siding with the supplier.

All evidence goes in a witness statement not in a reply to the defence. You can provide a recording of the call but is it necessary? You will need to ensure it is on 2 x USB sticks which you will need to purchase yourself, one for the court and one for the supplier. Why can't you just provide records of your phone bill?

Some comments around their defence:

1. Para. 4 is exactly what I was talking about regarding deceit. Unrepresented persons have a tendency to go off on a tangent and spout out things that aren't really necessary. I honestly don't understand why you decided allege a total forgery and that DPD have made up the evidence without any evidence. Just makes you look silly and judges will already form a view of you when they read your claim form. Unless you have evidence of forgery or that the photograph was doctored/made up in some way, I suggest in your reply that you withdraw that allegation and focus on the more important issues.

2. In para. 9 I don't understand the relevance of the reference to the contract being a consumer one - that has no relevance at all in the context. They mention that it was not in the contemplation of the parties that you would incur those additional costs, and in para. 10 they're relying on some case law. Unfortunately, I think their legal office is somewhat misguided.

Hadley v Baxendale explained that there are two limbs of damages: (1) losses that flow naturally from the breach are called direct losses and (2) losses that the parties knew or ought to have known at the time the contract was entered into are called consequential/indirect losses. The supplier is seeking to argue that these losses fall into the second limb which is more difficult to argue however, I would say that the additional £130 cost for the printer were a loss resulting directly from the suppliers failure to deliver. But for the suppliers failure to deliver, you wouldn't have had to go to another supplier to get the goods albeit at a more expensive price. In other words, the losses flow directly from the breach.

3. I've already discussed para. 12 above around loss of enjoyment so I won't go into that again.

You have a time limit to file your reply with the court at the same time as you do with your directions questionnaire and it will need to be served on the supplier too. If you need a template reply document I can upload one but think there's a few floating around on here.

[gio70]

Thanks Rob, appreciate your response...A few comments below:

I don't think there's anything wrong with Ostell in terms of what he said. Like I said, they're relying on DPD's evidence of it being delivered a d the judge doesn't know what your front door and hallway looks like, so do you just expect him/her to take your word when there's photographic evidence of a printer being delivered at someone's front door?

In my earlier post I said that the burden of proof is on them, they've provided evidence in the form of a photograph so that burden now passes to you. If you don't want to disprove their evidence then that's your prerogative but you will sharp find the judge siding with the supplier.

OK, I've got it, thanks.

The supplier provided a picture as proof, so the burden of proof shifts on to me now. So, if I provide two photographs - one, taken by my other half, showing me standing in front of my own door with the empty printer box (the real one); and photograph number two, taken from google street view (publicly available site), showing the front of my property in great detail (zoomed up and everything), with me providing the link, as well as a print out of that photograph, then, following the logic you and Ostell described above, the burden of proof should shift back to the supplier for them to prove that both photos are not genuine and I am making these up, correct?

All evidence goes in a witness statement not in a reply to the defence. You can provide a recording of the call but is it necessary? You will need to ensure it is on 2 x USB sticks which you will need to purchase yourself, one for the court and one for the supplier. Why can't you just provide records of your phone bill?

I can't, unfortunately. My call plan is PAYG and I don't have itemised bills as such. The record of that call from my own phone is gone - this was more than a year ago now. I do have the recording of that call as it was made using an app on the phone itself, so I still keep it. As for the cost and hassle of providing USB sticks - I don't mind doing that as long as I am allowed and that's legal, so can I do that or not?

Some comments around their defence:

1. Para. 4 is exactly what I was talking about regarding deceit. Unrepresented persons have a tendency to go off on a tangent and spout out things that aren't really necessary. I honestly don't understand why you decided allege a total forgery and that DPD have made up the evidence without any evidence. Just makes you look silly and judges will already form a view of you when they read your claim form. Unless you have evidence of forgery or that the photograph was doctored/made up in some way, I suggest in your reply that you withdraw that allegation and focus on the more important issues.

Well, nobody is perfect, otherwise I won't be here seeking advice. So, what would you suggest I add in my statement to rectify this? Could you suggest a text/paragraph I could add/include in it?

You have a time limit to file your reply with the court at the same time as you do with your directions questionnaire and it will need to be served on the supplier too. If you need a template reply document I can upload one but think there's a few floating around on here.

Yes, I do indeed. If I am to submit documents (new photos, witness statement, etc), I'd need them to be received by the defense and the court at least 14 days before the trial, that's by the end of this month as my trial is scheduled for mid-July. I was planning to use the attached template for my witness statement - is it any good?

A few other questions:
1. Should I include evidence for the costs I incurred as part of my statement, like Royal Mail receipts, and so on?
2. When I prepare my witness statement (I'd probably do that over the weekend as I work during the day) would you mind reviewing it before I send it off?

Thanks again!

[gio70]

I am attaching my draft witness statement that, together with another exhibit list (B1-4) will be send to the court, with copy to the Defendant.

@R0b (and anybody else) - would it be possible to review and comment on the attached please?

I've changed a few things:
1. I decided against adding a USB stick with the phone call recording, as I wasn't sure this is 100% legal and I didn't want to get into hot water once again.
2. I also decided against attaching the proof of delivery from Royal Mail for the first letter as I didn't have one for the second (I blame Royal mail!), so I didn't want to invite unnecessary attention/questions. The fact I have proof the items have been sent should be enough (there is a paragraph in the attached to that effect);
3. Can I add statement of my costs and include the receipts as part of my exhibit list as well? I have incurred £105 in court/hearing fees, £13.13 in P.O. fees (I did use postal orders for the court and hearing fees) and also around £50 for postage (correspondence to the court, as well as the Defendant - all using either signed-for or special delivery with Royal Mail).

The statement, as well as the exhibit list needs to be received by both the court and the Defendant by the end of this month, which means I'd need to send it on Tuesday (in two days' time) at the latest.

Any other comments are also welcome. Thanks in advance.

[ostell]

That's more a response to defence than a witness statement. You are putting forward legal arguments

I believe the statement of truth has been upgraded to something somewhat larger

[gio70]

Thanks Ostell. After some digging on the forum, I found an old post from R0b that includes a few templates, so adapted the beginning and ending as follows:

I, [insert full name] of [insert your address] will state as follows:

1. I am the Claimant in this case, and I make this statement in support of my claim entered on [date of claim].
2. The facts and matters set out in my statement are within my own knowledge unless otherwise stated, and I believe them to be true. Where I refer to information supplied by others, I will identify that source of information.
3. Attached to my witness statement is a paginated bundle of exhibits known referred to as EXHIBIT B, which I will refer to throughout my statement.

....

Statement of Truth
I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

How's that? Also, anything on the questions I posted above? Thanks in advance.

[R0b]

The contents of your witness statement isn't really what you would expect to see. A few things I've spotted so far:

1. The formatting of the witness statement is very specific and should be in the first person not third.

2. Witness statements are statements of fact and set out the evidence relied on. They are not to be used as a vehicle to submit legal arguments or refer to case law or legislation - that is the purpose of a hearing. Being brutally honest, it needs a total redraft from top to bottom and I agree with Ostell in that it reads like particulars of claim / defence.

3. Your content reads as a series of general statements and don't really flow very well. The purpose of a witness statement is to tell a story and stick to the relevant key issues. Couple of things to think about:

- Lack of introduction. Where and how did you purchase the printer and how much for?

- When was delivery due/expected and what was the method e.g. recorded, first class etc. what about tracking number.

- You refer to google maps as evidence of the front of your property. Is it necessary if you take a photograph of your front door? photos from Google maps can be a few years out of date so unless you can guarantee and evidence that the image taken was very recent, I would say it's irrelevant and doesn't support your case.

- On the subject of evidence, you should clearly explain that the evidence relied on by the defendant is not your front door and leave it at that. Perhaps add that it is not uncommon for couriers to leave goods at another address which is the likely situation here. Have you checked the DPD terms and conditions if it says this? Maybe that will help strengthen your argument.

- Nothing I can see in there that details the lack of response from the seller and then as a result you decided to purchase a printer elsewhere as a result of the non-delivery and lack of response. What dates did you send those letters and would be helpful to set out where it was purchase from and receipts to as proof of costs.

- If you are going to claim loss of enjoyment then you need to go beyond simply saying just that. You need to evidence the effects of how the failure to delivery the printer has caused you loss of enjoyment from the printers use. Personally it's a very weak argument and I would remove it. Again, unless you have pleaded this in your claim form, you cannot now introduce new arguments that weren't there initially.

That list is not exhaustive and it's entirely up to you as to whether you choose to amend what you've written but if you stick with what you have now, you may run the risk the court strikes out your witness statement as non-compliant and you have no evidence to rely on. Equally, the court may adjourn to make you re-draft the witness statement and award wasted costs against you.

[gio70]

Thanks R0b, appreciate the response. I took your advice and sat until half four in the morning to rewrite everything up - from scratch - and sent it earlier today to meet the deadline.

What I wasn't sure of (and asked several times above) is whether I should include some sort of statement for my costs incurred up until this point and provide evidence of that (e.g. receipts)?

I was also not sure whether once I provide proof of how my property looks like whether the onus then shifts onto the supplier again?

As for my property: I've attached the Google Street View picture (yes, you were right, it was taken about 2 years ago), but I also attached photographs taken the day before I've made my statement, so that a clear timeline can be established and I can provide proof that nothing has changed during that time, as well as use a 3rd party (public) source.


I will post the revised witness statement at some late point when I have more time.

Another (disturbing - at least for me) development - this morning I received a letter from the defendant that urges me to reach settlement, while (selectively!) quoting stuff from my last letter that I sent them - that letter had "without prejudice" heading on it.

Nothing wrong with that, ordinarily, but his letter didn't have the "without prejudice" statement and I have a sneaky suspicion that he may use his letter (quoting private communication between both parties) in court to further his case.

I hope I am not reading too much into it.

Am I right in thinking that this can't be allowed? What are the relevant parts of the law that prohibit that sort of behavior (using stuff in court that has been marked "without prejudice")?

Thanks again in advance.