PCP voluntary termination excess mileage charges court claim

[cjm128]

Re: PCP voluntary termination excess mileage charges court claim

Hi R0b,

Thanks for that. Court fees were £450 and solicitors fees £100.

I've been round the block a few times on the defence, have had a go a finishing off but I think you'd already had most of the points covered. Also wasn't sure whether or not to add a conclusion. Would you mind taking a look and letting me know what you think?

Many thanks,

[R0b]

Re: PCP voluntary termination excess mileage charges court claim

I've taken a quick look at it and it's a good start, though I would suggest a couple of amendments after having some thoughts.

1. I would suggest amending the heading 'Claim' to say 'The Contract' and after paragraph 4 you should insert the heading 'The Contract Terms' then before paragraph 7 you should then put a heading called 'The Claimant's Claim'.

2. To make it absolutely clear and because MBFS have alleged heads of claim for contract being costs or charges for damages, rental charges and excess mileage I think you should put these into sub-headings and address each head of claim specifically. For example, after paragraph 7 I would suggest you use the following headings (underlined and in italics)

Costs for vehicle damage
X. Mr XXX denies that the Claimant is entitled to charges in respect of vehicle damage ...

Rental charges
X. The rental charges as alleged to be claimed are also denied ... The Contract for was a period of X months of which the monthly rental charges were £XXX.XX. Mr XXX has paid a total of X Instalments totalling £XXXX.XX and as such, Mr XXX has exceeded half of the total amount payable in accordance with the terms of the Contract as set out in paragraph X above ... The Claimant has not particularised how much of the damages claimed relate to rental charges, Mr XXX's liability is capped at half the total amount payable and so the Claimant has no right to claim any further rental charges.

Excess mileage charges
X. The Claimant appears to rely on clause X of the Contract which states that ... Mr XXX will submit that the Claimant is prohibited from claiming any excess mileage charges under the terms of the Contract ...


The above is just a guide to set out how I would do it and so you can make it clear in a logical and concise manner so it is easy for the court to follow your arguments. I also shows you have a strong defence and the Claimant doesn't really know what they are claiming. There are also a couple of case law you can add into the defence to support your claim. For example, you can use this quote from Brady v St Margaret's Trust Ltd [1963] 2 Q.B. 494 to assist in the section about damages:

The price in these hire-purchase agreements is no guide to the condition of a car. There should be evidence by the hire-purchase company to show the condition of the goods at the time the agreement was made and to show how far the hirer has defaulted under it. As I read this clause, the hirer's duty is to keep the car in the condition in which it might reasonably be expected to be if he had looked after it properly. He need not put it in a better condition than it was when he hired it. He need only keep it in the condition in which a reasonably minded hirer would keep it. Thus he would repair it if there was an accident, and he would do the immediate repairs in the course of running the car, but no more. The hire-purchase company should give evidence of any default on his part in that duty.

You can phrase the above in your defence as something like 'Mr XXX will rely on Brady v St Margaret's Trust Ltd [1963] 2 Q.B. 494 as per LJ Denning at 500:' and then insert the quote like suggested under para. 6.3 of your defence.

3. Conclusion is fine but is generally kept short to a few lines at best i.e. 'For the reasons set out above, the Claimant's claim is without merit, fails to fully particularise its claim and thus discloses no cause of action. Accordingly, Mr XXX invites the court to dismiss the claim.'

There's more that could be added but the above should help to beef up your defence. As you've acknowledged the claim online you have 33 days to enter the defence which by my calculations your defence needs to be submitted by Wednesday 5 July so there is plenty of time to make those additional tweaks.

I've got a bit of a busy weekend but I am off work Monday so I could take a better look at it then once you've updated it.

Any questions let me know.

[cjm128]

Re: PCP voluntary termination excess mileage charges court claim

Many thanks R0b. Working through it now.

[cjm128]

Re: PCP voluntary termination excess mileage charges court claim

I've made the changes you suggested R0b. I can see the layout is much clearer now thank you. Have attached the updated version, have left track changes on.

Many thanks!

[R0b]

Re: PCP voluntary termination excess mileage charges court claim

Evening, I've uploaded an example defence based on what you've said - take a look at it and adapt as you wish. I've also mentioned an additional defence point about the inclusion of the VAT. It is a valid point to make but is also a little wishy washy but you could insert it more as a bluff than anything else.

I'm not sure how accurate anything I've put in there is as it is all suggestive and you may or may not have the relevant information so if not just simply remove the wording. You will need to fill in the relevant information e.g. your name, dates of letters, car registration etc.

There is two pieces of case law in there, if you intend on using them let me know and ill upload the judgment for you.

Also, did you check to see if MBFS have applied a default? As I said, there is potential to make a counterclaim if they have as a result.

Let me know your thoughts.

[cjm128]

Re: PCP voluntary termination excess mileage charges court claim

Many thanks again R0b, very much appreciated.

I'll have read through now and get cracking. I checked credit score on Noodle but curiously it didn't show so just waiting fro Experian.

[cjm128]

Re: PCP voluntary termination excess mileage charges court claim

Hi R0b,

That's really Great thanks. Couple of questions; there's an empty letter under (d) section 8, was there a point you meant to make or can I just delete? Section 10 you reference the case history by the relevant paragraph is missing.

A question in term of supporting evidence, what do you recommend supplying? Do I include all the letters referenced and the contract? How should I package this - would I reference them in a particular way?

Question in terms of process, when I submit the defence, does that go direct to court or do MBFS get visibility of the defence? How long does it normally take to get heard in court? Another forum member you and I have spoken to on the forum was a little ahead of me in the process. I believe he submitted a defence and was offered a mediation process. If I refused that would that potentially count against a decision in court?

Many thanks again.

Many thanks,

Chris.

[R0b]

Re: PCP voluntary termination excess mileage charges court claim

Hi Chris,

There was no intention of putting anything under (d) so that can be removed, not sure what you mean about section 10 - do you mean paragraph 10 or paragraph 15? If you mean paragraph 15 I have deliberately left reference to the judgment out, this can be referred to on the day of the trial or if you intend on serving a skeleton argument (recommended) it can be referenced there. I also noticed at paragraph 12, the last sentence doesn't make sense, you will need to remove the words 'and so'

There's no need to provide any documents at this stage, all evidence relied on is usually exchanged 14 days before the hearing date.

You can email the defence by sending it to the CCBC email address which I believe is ccbcaq@hmcts.gsi.gov.uk you do not need to send it to MBFS or their solicitors the court will send a copy onto them. You should get an automated response from that email which acknowledges receipt but last time I checked they also provide information on where to email certain documents - just double check that the ccbcaq@hmcts.gsi.gov.uk email address corresponds with the email they have suggested. If not, send it to the correct one if its no longer the right one. If however you want to send the defence to MBFS then there is no harm in doing so but send it to their solicitors.

For MCOL claims, I would expect at least 6 months before a hearing date is given. This is simply because the courts are so slow in processing things due to the constant backlog. The last claim I issued under MCOL was earlier this year and they were working to a backlog of 5-7 days. Obviously if things need reviewing by a judge then that could also add on time and if you agree to mediation but nothing comes of it, then that will also add more delays.

Courts expect parties to try to come to attempt to resolve their issues through mediation and the small claims process offers that free of charge. My personal view is that it is pretty crap and is only useful if there is a genuine dispute but for something like this, any mediation through the courts mediation team is likely to be futile as you are so far apart in terms of what each other wants.

Nonetheless, there is no harm in you attempting to negotiate a settlement prior to you hitting that stage. That way when you come to being offered the mediation process you could reasonably suggest that previous attempts had been made but to no avail, and so any further attempt to settle is unlikely to be fruitful. If you unreasonable refuse mediation, the court can order you to attempt it or make a costs order against you, though I've not actually seen it happen in small claims cases before. It usually occurs when the other side is generally being unreasonable and ignorant. The problem generally is that you can't negotiate any settlement if there's no evidence to prove that the damages occurred.

[cjm128]

Re: PCP voluntary termination excess mileage charges court claim

Hi R0b,

Many thanks for the feedback and all your help. Happy with the defense now so fingers crossed!

Cheers

[AlfonsoBellacroft]

Re: PCP voluntary termination excess mileage charges court claim

Any updates on this? I'm in a similar position with BMW.

[cjm128]

Re: PCP voluntary termination excess mileage charges court claim

Hi AlfonsoBellacroft,

Defence submitted, Mercedes have 28 days to reply (or there about). Awaiting a response. I understand from other posts on here that BMW are also very bullish on this.

Cheers.

Any updates on this? I'm in a similar position with BMW.

[cjm128]

Re: PCP voluntary termination excess mileage charges court claim

Hi AlfonsoBellacroft,

Defence submitted, Mercedes have 28 days to reply (or there about). Awaiting a response. I understand from other posts on here that BMW are also very bullish on this matter too. Will post when I have an update.

Cheers.

Any updates on this? I'm in a similar position with BMW.

[AlfonsoBellacroft]

Re: PCP voluntary termination excess mileage charges court claim

I shall keep a keen eye on the result. Best of luck.

[shane07]

Re: PCP voluntary termination excess mileage charges court claim

Hi mate, any update on this?
Also can you explain why you have to make a defense if they haven't taken you to court?
I'm also in a similar situation with MB & Motimer Clark and not sure what to do and quite worried.
It would be really appreciated if you can add another section in the Voluntary Termination guide on what to do when a solicitor writes to you.
Do I have to respond to them?
Thanks

[R0b]

Re: PCP voluntary termination excess mileage charges court claim

Hi mate, any update on this?
Also can you explain why you have to make a defense if they haven't taken you to court?
I'm also in a similar situation with MB & Motimer Clark and not sure what to do and quite worried.
It would be really appreciated if you can add another section in the Voluntary Termination guide on what to do when a solicitor writes to you.
Do I have to respond to them?
Thanks

I am in the process of doing this, however as I've mentioned in there that the excess mileage is a grey area as there is no known binding authority on this point. The OP has received a claim form if you read the first post, hence the defence.

If you have received correspondence from Mortimer Clarke you might want to set up your own thread and we can assist from there - depending on what stage it is at and what you actually want to do about it.