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On
the parlous state of reasoning and judgment to be found in
state managed organs for complaints and the British Courts of
Justice
In
2005, I was the claimant in a case against Amtrak Express
Parcel Services Ltd.
How
the privity rule was used, (by obversion) when the defendant
said I could not claim under it.
THE
PRIVITY RULE.
The
short synopsis is detailed in the index below.
FOR
THE CASE IN DETAIL CLICK HERE.
I
purchased computer goods from Micro-Direct, ordering them on
a Thursday to be delivered overnight by Friday 12 AM.
This
was a contract initially under the sale of goods act 1979,
and as amended.
There
was a written contract between the carriers Amtrak, and
Micro-Direct, which stated that if the goods were not
delivered on time, or within a reasonable boundary of an
excess period, like the next timed delivery that day, then
a MONEY BACK GUARANTEE was in place to remedy the breach.
Next
day at about 9 am, Amtrak came to the front entrance of the
block of flats, and left a card loosely placed between the
glass of the door and its surround, saying they had visited,
and on receiving the card, the recipient should call.
This
was the second occurrence of such a delivery, where a card
was left, no doorbell was rung, I was at home, being
disabled, (getting out very rarely in the week).
The
disappointment was serious as I had been looking out for
the driver from 8.30 that morning, and had missed him. My
telephone number was on the goods, with instructions that
any problems on delivery, the driver should call, and he
would find me in residence. This was not followed, their
telephone records may be relied on to show truth.
I
called the depot, within 20 minutes of seeing the card, asked
if they would see if the driver was still in the vicinity,
and they then a undertook to re-deliver that afternoon,
before 4pm. I was sceptical.
Several
phone calls, faxes and emails saw the end of day without
the goods, the next time window had been breached, I was
entitled to a full or partial refund, plain and simple.
Saturday
came and went, Sunday I emailed both supplier and carrier,
saying if the goods were not delivered by midnight Monday
they would be cancelled. Monday came and went, I cancelled
the goods overnight, and notified both parties.
On
Tuesday I booked appointments to inspect and collect the
goods locally, on Wednesday afternoon. On Wednesday morning
about 12am, the original cancelled goods arrived, taken in by
my wife. I notified the seller, I was holding the goods,
unopened until we had sorted out not merely the refund, but
some compensation for avoidable time and trouble plus the
extreme vexation and detriment I had received. After a while
the seller agreed to compensate me, they refunded the £15,
and compensated mean additional sum of about £70 to
retain the goods. This left a shortfall of £30 in Court
costs, for the issue of the claim, that I stated I would seek
from Amtrak.
One
would think that was all sorted out, and why on earth should
I not be contented. Being disabled I was exempted from court
costs, the taxpayer had paid that for me, and the seller the
remainder. I wanted Justice for the seller and the tax payer.
A foolish focus, to make the culprit accountable, and seek a
remedy that did not mean others bailing me out.
I
was NOT happy at all, on grounds that I was informed the
seller had as a matter of goodwill, compensated me, and
when they approached the carriers who had behaved not with
mere simple negligence, but wilful negligence, and
remarkable prejudice ignoring a series of representations,
the carrier's were adamant in refusal to compensate the
seller under their own contract.
There
was an inherent injustice, want of equity, unfairness, and
abrogation of all liability under a contract by a
villainous company bent on defending their £15 to the
limit.
I
spoke to Amtrak's company secretary and solicitor (same
person) who confirmed they had not met the seller on any part
of the their loss, and told me that I could not claim from
them under the 'privity
rule'.
I
asked them to settle part or all of the £15 with their
customer, the seller, they refused, and I said I would
proceed to collect the £30 court costs, as if I had
paid them, and give them back to the taxpayer though the
courts.
What
vexed me was the total arrogance and stubbornness of the
culprit , and their failure to hold themselves accountable
under their own contract. The argument under th privity rule
was unknown to me at that time, but instinctively I felt the
law should see the injustice that was clear to all others
except the carrier.. Their own contract under the law had
been breached, they disowned all responsibility despite being
unquestionably culpable in a next day delivery being 6 days
late. I took the view the privity rule was a mere impediment,
a just and fair settlement had to be sought, at any cost, as
a matter of principle. The asymmetry of information being
their solicitor knowing more about the privity rule than
myself at that moment was something I would rectify if the
claim went forward, on mere research into the origins and
basis of their argument.
I
proceeded to seek a remedy of the principle of total
unequivocal injustice. The defendant (carriers) deposed a
defence, that was immediately
fallacious. Indeed ts construction was not
that the fallacy was a simple error of
reasoning, but a syllogistic
construction with an inherent non-sequitur. It laid
out the breach as if they had
actually delivered the very next day. This was sworn for
truth, and the first perjurous statement of several in
writing, over the year long exchange.
Apologetically,
I was not prepared to tolerate this, and resolved to pursue
the remedy to the limit. My thoroughness over that year built
some 500 pages of exchanges, emails, critiques of a number of
additional perjuries, and wilful breaches of undertakings
with the court itself, in the thwarting of civil procedure
rules, to extend the time, and attempt to throw me off.
The
first hearing, (undefended) was exemplary, professional and
reasonable. Her Honour the judge advised the defendant had a
strong argument under th privity rule, and the contract
itself was going to be a serious hurdle. I thought about it
for 24 hours, and advised the court I wished to press on for
a second hearing. I set about clarifying the privity rule,
verified they had still not settled the breach towards the
seller, and remained adamantine.
I
simply looked up the privity rule, discovered it had arisen
in 1861, and that reforms under the Contracts of third
parties act 1999, gave several approaches to a remedy,
providing exceptions for the privity rule, where the third
party could be held responsible if the argument was sustained
that the relationship was either one of Agency
or the contract was Collateral
in nature. Both looked promising and I prepared argument
covering them. Next I went on to examine, with greater
purpose the privity rule itself, to discover that this rule,
that had govern lawyers problems for over one hundred years
had the simplest method of avoidance based on the doctrine of
consideration. You will need to look a the rule, its first
main case, and apply simple logic to the converse of the
case, and the defence by the defendant was eliminated in one
stroke. At the second hearing, after seeing the defendant and
Judge were both of like minds, and that I was pressing on for
an expensive case that should be dismissed, the
Judge listened to my argument. It took about three minutes,
and I concluded it made the claim enforceable. He was
uncertain, asked us to leave the court and seek a settlement
during a period of ten minutes. There was little chance of
this, the defendant was still not prepared to give ground, or
even talk with me.
On
re-entering the court, the Judge stated that my argument was
correct, and the claim was enforcible, we were given a future
hearing of two and half hours. This was more than
satisfactory but perceptibly precarious, yet perfectly
correct, despite an initial, but easily remedied attitude
concerning the principle at cause.
I
had considered the defendant would possibly take a commercial
decision to settle, but not guessed their reasons for being
so adamant in denial, until I considered the notion that if
they conceded to me, (having told me they had never settled
such claims themselves) they would open themselves to a class
action from similar claimants running to several hundred
claims a month.
The
third hearing was satisfactory in part, in returning a
detriment where I has been served with one, and hearing the
Judge concluded with high praise for my own delivery and
deplorable opportunism from the defendant, and her barrister.
the grave disappointment flowed several weeks later, after a
few exchanges with the court, in the judges written order
that stood so far in contradistinction with the terms of the
hearing, that I was compelled to analyse and consequently
criticise the final order as being fallacious in several of
its methodologies, and show clearly that my contrary judgment
, was cogently true. The fallacies were
This
critique was sent to the Judges clerk for filing along with
the tapes, and other post hearing exchanges.
Click
HERE
to
go to the many exhibits and documents, and peruse a little
further for the overturning of the privity rule.
THE
PRIVITY RULE.
To
be continued just a few paragraphs.
The
case was passed to the Trading Standards OFFICE in Camden in
Autumn 2005, and they passed it to the Unfair Co tract Terms
section of the Office of fair Trading. The case is still with
the OFT. Amtrak Have a report with the OFT, and the report is
available for download here.
http://www.oft.gov.uk/Search+Results
Enter
the keyword search AMTRAK and you will find the report on page
10 of that word document.
The
specific page is here
below,
and the report may also be examined from here...........
You
can see the item MONEY
BACK GUARANTEE was
given more prominence, but in the claimant's case it
made no difference whatsoever
to their policy. To this day, we are still waiting for the £15
back. Clearly they prefer the adverse publicity, to the
refund.
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