Postal Company lost my parcels and won't pay - Is it worth a small claims?

[abz88]

Hi all,

Would like some advice in this matter.

So this incident happened last year in December, when I used InPost (Amazon's delivery business) to post quite a few boxes of brand new items that I had purchased from Bicester village to a friend. The value of these items was around £1500 split between 8 boxes (4 parcels).

Now InPost only delivered 1.5 parcels, i.e. 3 boxes and all the rest were lost - they've admitted that they lost all the other parcels and have only offered my a compensation of £200 against my loss when I have provided to them a detail inventory of exactly what was in them and how much everything cost. So at the moment I am at a loss of around £1000 considering what they delivered and what they have offered as compensation.

Their claim is that their liability is only £20 per parcel and anything valued over £250 is classed as a prohibitted item - my claim to them is that non of this is displayed as a declaration to a customer on their website when booking (it is only in the small print T&Cs) so unless they directed a customer at the time of booking to read the T&Cs, how would one know.

So here is my question to all then, is it worth taking them to Small claims court or I dont really have any leg to stand my case on?

Thank you all!

[atticus]

https://inpost.co.uk/prohibited-items

I have not been able to see whether you will have had to tick a box accepting the ts and cs - these things being almost invariable when buying goods or services online.

[R0b]

Going to play devil's advocate and take the opposite view to Atticus.

All courier's have the same terms pretty much with prohibited items and other items not covered then they will exclude or limit their liability. However, as a consumer, these clauses may not apply because you are protected by the Consumer Rights Act 2015, which trumps any contractual clause you might have agreed to sign up to.

Section 57 of the CRA says:

(1) A term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader's liability arising under section 49 (service to be performed with reasonable care and skill).

...

(3) A term of a contract to supply services is not binding on the consumer to the extent that it would restrict the trader's liability arising under any of sections 49 and 50 and, where they apply, sections 51 and 52 (reasonable price and reasonable time), if it would prevent the consumer in an appropriate case from recovering the price paid or the value of any other consideration. (If it would not prevent the consumer from doing so, Part 2 (unfair terms) may apply.)

(4)That also means that a term of a contract to supply services is not binding on the consumer to the extent that it would —

(a) exclude or restrict a right or remedy in respect of a liability under any of sections 49 to 52,

(b) make such a right or remedy or its enforcement subject to a restrictive or onerous condition,

(c) allow a trader to put a person at a disadvantage as a result of pursuing such a right or remedy, or

(d) exclude or restrict rules of evidence or procedure.

Your argument would be along the lines of something like, notwithstanding any prohibited items that may have been contained in your parcels, InPost agreed to take your parcel and thus forming a contract. In doing so, InPost agreed to be subject to the implied terms set out in the CRA 2015 for services, in particular section 49 which says they must perform the services with reasonable care and skill. They breached that duty by losing the parcel that was in their possession and have already admitted the fact that they have lost the parcel.

It would be expected for InPost to deny or disregard liability, presumably by pointing to parts of their liability clause in their terms of service which says:

We will provide our Services with reasonable care and skill. However, we will not be liable for any loss or damage sustained by you if and to the extent that such loss or damage was:

• caused by any unavoidable event, and/or any event with consequences which we are unable to prevent by the exercise of reasonable diligence; and/or
• caused by third party with whom you have shared your parcel collection details, or who accessed a Locker which you opened remotely; and/or
• caused other than by our breach or failure to comply with our statutory obligations; and/ or
• not foreseeable to both you or us when the contract for our Services was formed; and/or
• caused by the placement of more than one Parcel in single Locker compartment; and/or
• caused by your use of our Services in breach of these Service Terms (including but not limited to your failure to comply with your obligations in relation to: the Parcel & Packaging Requirements, Prohibited Items, and accuracy of Parcel Information); and/or
• caused by any negligent act or omission by you in respect of Parcel or our Services.

Our liability for any Parcel stolen, lost or damaged in the course of transit will be limited to the lower of: (i) the cost value of the items within that Parcel; or (ii) £20.00 GBP. You acknowledge that any Parcel containing items above this value is sent at your own risk. We also bear no liability whatsoever for Parcels which contain Prohibited Items.

Your response to that would be something like:

Section 57 of the CRA prohibits any contractual terms which have the effect of excluding or restricting a trader's liability for breach of its duty to take reasonable care and skill in performing the services. In my opinion, that would defeat any argument Inpost have around breach of the terms of service as I highlighted in the bullet point and also the last part about having no liability if they were carrying prohibited items.

Another argument to consider is whether the cost of the parcels were paid individually or collectively. If in either case the price paid was more than £20, you can also seek to rely on section 57(3) which explains in a fairly convoluted way, that the trader is prohibited from excluding or restricting liability that prevents you from recovering the price paid under the contract. In other words, InPost cannot limit their liability to less than the price paid under the contract.

I should add that if you read Clause 8 of their terms of service it also states that "Where you deal with us as a consumer, nothing within these terms and conditions shall be deemed to affect your rights under the Consumer Rights Act 2015." so they are already acknowledging that they cannot exclude your rights under the CRA.

In my opinion, definitely worth a punt if you're willing to put the time and effort into drafting a proper particularised claim which sets out all of the above points and references to the CRA and then collecting your evidence and preparing for court. Don't just think issuing a claim is a walk in the park and you can do the bare minimum because you will be in for a shock, and potentially on the hook for the other side's costs if you have been found to act unreasonably. Meeting court deadlines can be very stressful so you need to go into this with your eyes wide open.

[abz88]

Hi Rob - This is really realy useful and seems like i could put a case together, however you are right i need to be clear on this before putting it in as it could be very demanding.

So just a few of things to clarify:

1. An error on my part was that at that time i put 2 boxes in each of the parcels (lockers) as I wasn't aware they dont allow it - clearly i had not read the T&Cs and that is stated in their terms of service - They did say that you're not allowed to do this, however in this instance they will not hold it against me (over the phone)


2. Second error, some of the boxes that i had included may have had some old courier labels on them which could have caused some confusion - I did not admit that i may have left any of the old labels to them directly

3. The parcels were purchased individually, however on the same day consecutively, so the total was more than £20, however individual transactions of less than £20.

4. How would i prove that the items sent in the boxes were infact that items that were purchased at that time, I dont have pictures of anyone packing the items into the boxes, just some pictures of the boxes themselves.

[abz88]

a quick bump to this

[R0b]

Hi,

Not sure what I can add other than what I have previously said. You seem to have made some errors but the only way of truly finding out whether or not InPost will reimburse you is to follow the legal process.

Regarding your clarification points:

I would say that items 1 and 2 are irrelevant because regardless of what you were supposed to do, they accepted the parcels by collecting them and dealing with them accordingly. If putting two parcels in a single box fundamentally altered the way the contract and service was to be provided, they should have stored them and then contacted you that one item could not be delivered because you didn't comply with the terms. Instead, those parcels were processed business as usual and it's up to InPost to prove otherwise.

Point 3 doesn't change much I think other than you should be entitled to recover the full price paid. Again, the onus is on InPost to argue why it should not be obliged to comply with the CRA 2015.

As for point 4, the starting point is that you should be viewed as a credible witness and the court should take the facts as they are unless evidence comes to light which suggests the contrary. I would assume along the way the parcels were weighed at some point and therefore that would have flagged up an issue if the parcel was not what you were claiming it to be. You have proof the parcel was put to the collection boxes, now InPost has to prove otherwise or that the parcels did not contain what you claim were in there, and they need evidence to prove that, they can't just make a statement as a court will not accept this at face value.

[abz88]

Hi Rob,

This is really really helpful, thank you very much for answering.

Could i just ask and incidcation of how much it would cost me to bring about this claim etc and whether i should involve a solicitor in this case or not?

I can start pulling together an initial view of the claim and then get help from this community to fine tune it before submitting. If there are any particular resources you could point me towards that would also be immensly helpful.

Much appreciated!