* WON * VT - Damage charges... Startline

**PablosD** · 24th September 2018, 17:22:PM

Ps... As I said before, I did sign the pda at the inspection, but he told me he considered my car in good condition and asked could I sign to say he'd done the inspection. I wasn't asked by him to sign to say I agreed to pay damages. Because he was quite complimentary and positive about my cars condition I let my guard down and signed. Does this have an impact on my chances?

Paul.

**R0b** · 24th September 2018, 19:26:PM

Hi Paul,

Signing the PDA makes your life somewhat a little bit harder but not impossible - perhaps a learning point not to sign anything regardless of what the agent says.

The first point I would make is that you are not liable for any damage that was not done whilst the car was in your possession. I would say that the onus is on the lender to prove that all of that damage was caused specifically by you whilst in your possession.

Presumably you didn't take any photographs at the time of collecting the car and I could bet you any amount that the lender didn't take any photographs of it either. Therefore, there's no real way of proving that the damage was actually caused by you and the reality is that the car has done 115,000 miles (presumably) several owners and is 7 years old. Factoring all of that in, I think it is probably more likely than not, that all of that damage was not your own doing.

There is some case law that should assist you in this respect and it is the Court of Appeal case Brady v St Margaret's Trust. The case was concerned with breach of contract for failing to comply with a clause stipulating that the hirer take reasonable care of the car. Lord Denning said the following (my underlined):

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.

In other words, the onus lay with the lender to show that the condition of the car at the time of hiring and then compare that with the damage they alleged claim you have caused. Ultimately, they are going to find it difficult to prove that any of the damage was caused by you in particular because of the age and mileage done on the vehicle. You would expect a car of 115,000 to have some dents, scratches and bruises on there which I would say falls under reasonable wear and tear.

I would imagine that the lender might reduce the amount being claimed (very surprised if they don't) and still claim you owe at least something. The problem is that they will have done that in an arbitrary way and again, whatever they knock off, still have to prove that you caused the damage for which the costs and expenses are being claimed for.

Feel free to use the template letter but I think you might need to adapt it to suit your current situation. If you need any feedback feel free to post up a draft and I will comment on it when I can.

If you aren't prepared to defend it in full, either offer a reduced amount on the basis of no admission otherwise put the onus on them to prove it. There is another case that I can't currently find right now which makes it clear that damage outside of your possession can't be claimed; I'll upload it if I can find it.

**PablosD** · 24th September 2018, 20:53:PM

Thank you ever so much for your reply. I shall have a go at a draft. Although I don't really know what I'm doing. I'm very grateful for your help and I am overwhelmed by the effort you all put in to helping people... Thank you!

Here goes.

"Dear Sir/Madam,

Re: Voluntary Termination

Agreement Number: xxxxxx
Vehicle Registration: xxxxxxx

I am writing to you with reference to the above matter and your email dated 24th September 2018. Please note that liability in relation to the alleged outstanding balance for excessive damage to the vehicle is denied.

The vehicle was maintained in a reasonable condition throughout the period of the agreement and therefore such damage charges you are claiming would amount to fair wear and tear; the vehicle does not need to be returned to you in any better condition other than a reasonable one. Photographic evidence was taken prior to the vehicle being transferred to you which clearly shows that the vehicle was in a reasonable condition. The onus is on you to prove that the alleged damage caused was more than reasonable fair wear and tear.

After the inspection the agent informed me he considered the car in good condition for it's age and mileage, before asking me to sign his pda to say he "has done the inspection". I was, at no point, signing to agree liability or to any extra charges. If that is what he made me sign, he did so under false pretenses, especially considering he told me that, in his opinion, it could all be considered fair wear and tear. Also, regarding the off side rear tyre, you have labelled it illegal whilst also stating that it has 1.6mm of tread. This contradicts your finding as 1.6mm is the legal limit and therefore the tyre is legal.

Notwithstanding the above, I am prepared to pay a reasonable sum of £75 relating to the damage to the front door aperture seal as a goodwill gesture, without accepting any liability, as this could have been contributed to by myself getting in and out of the car, even though I still consider this reasonable wear and tear considering the age, mileage and use of the vehicle.

In any event, such sums you are alleging to be owed may only be recovered by a court order only and should you wish to pursue this matter in court, your application will be strongly defended.

Please confirm by return that you agree to the payment above and, upon receipt of £75, this matter is now closed.

Yours faithfully,

Xxxxxx"

I thought maybe chucking them £75 might sweeten the deal. I wasn't sure if mentioning the case you pointed out is something I would do at this stage. Is it?

After the part about the tyre I considered adding something like....

"As an outcome of the Court of Appeal case Brady v St Margaret's Trust, Lord Denning stated, "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."

I have had no accidents and I have "kept it in the condition in which a reasonably minded hirer would keep it", therefore I have upheld my obligations. I have serviced it as per the manufacturer's service schedule and had repairs carried out to the car when required, like, for example, replacing the diesel particulate filter, or when an injector failed. You will be required to provide proof that I have not done this."

But that might just be me waffling or just unnecessary. I feel so oblivious right now. If you could share your opinion I would, once again, be very grateful!

Thank you.

Paul.

**PablosD** · 24th September 2018, 21:02:PM

I worry about adding this in case a spy from the company is perusing these pages, but it was purchased from a large national car sales company who will have photographed it from a plethora of angles for the adverts. And it underwent an pre purchase inspection also. So I don't know who would have access to that. Or how much to lean on that as you suggested. It's all confusing.

Paul.

**R0b** · 25th September 2018, 07:35:AM

You might need to adapt some points, particularly about the 1.6mm tread and any other issues I forgot to add.

---------------------------------

Dear Sir/Madam,

Re: Voluntary Termination

Agreement Number:
Vehicle Registration:

I am writing to you with reference to the above matter and your letter dated [DATE] concerning the charges raised for damage you alleged state was caused whilst the vehicle was in my possession.

The vehicle was maintained in a reasonable condition throughout the period of the agreement and therefore I do not accept liability for the sum of £1,500 that you are claiming to be owed. I would refer you to the Court of Appeal case Brady v St. Margaret's Trust [1963] 3 W.L.R 1162 which was concerned with the extent of a hirer's duty to take reasonable care of the vehicle. On that point, Lord Denning stated the following:

"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."

Therefore, the onus is on you to prove that the damage to the vehicle was specifically caused by me during the time that I had it. Given that the vehicle has done around 115,000 overall and has had several owners, I am astounded that you seem to be suggesting that all of the damage listed on the condition report occurred during the period of hire. Photographic evidence was taken prior to the vehicle being collected and it was regularly serviced in accordance with the manufacturer's guidelines and the agent who collected the vehicle commented in particular that the vehicle was in good condition given the age and mileage of it.

Furthermore, the condition report issued by Manheim does not prove that the damage was sustained during the period of time that it was in my possession, rather it simply lists the damage. There is no evidence to suggest that the damage had occurred whilst it was in my custody and I would repeat what I mentioned above in that the vehicle has had several owners and driven 115,000 miles and therefore I require you to provide me with your evidence to back up your claim. I am confident, however, the evidence is non-existent because the damage was already there when I received it and therefore your claim for damages is entirely hopeless.

Notwithstanding the above, I am prepared to pay a reasonable sum of £75.00 in full and final settlement all claims in connection with this agreement. The offer will remain open for a period of 14 days but if I have not heard from you by [date] 2018, then the offer will automatically expire. Please note that this is a one time offer only and in the event that offer is not accepted, no further offers will be made.

I look forward to hearing from you in due course.

Yours faithfully,

[NAME]

**PablosD** · 25th September 2018, 12:32:PM

Thank you again....

Just quickly, before I start on it, I can add the part about the tyre, but should I put in the bit about being asked to sign the pda to say "he has done the inspection" and NOT for accepting liability? He didn't tell me otherwise. I have no problem with his findings. All those marks exist. I just have a problem with my being charged for them. Or do you think I should leave it?

**PablosD** · 27th September 2018, 07:28:AM

OH MY GOD I SENT IT!!

Thank you for the time you dedicate to helping us. I would never have been able to do this otherwise. I'll let you know when I hear back. Fingers crossed.

**R0b** · 27th September 2018, 10:48:AM

Sorry Paul, I missed this one. If I don't reply you are best tagging me using R0b which means it will flag a notification, otherwise your posts may get lost.

Do update us when you can

**shazzylou70** · 1st October 2018, 13:25:PM

Having the same problem hope its sorted

**PablosD** · 4th October 2018, 14:29:PM

Thank you....
So here is a bit of an update.

I rang them today. I wasn't going to discuss the damages, because I need all of that in writing. I rang them because I keep getting texts, emails and letters telling me I'm overdue my last payment. This morning it told me I was in arrears and now had to pay an extra £100ish to get back up to date.

The lady told me that they're automated and that I can ignore them, which is what I was told before. So I said that I'm just worried by the use of the term "in arrears" and don't want anything showing up on my credit file. She said it won't. So we'll see. But then she said the letters can only stop once my account is closed and my account can only be closed once I've paid the damage.... "of £190"!??

I told her that's not the amount I was given previously and that I'm disputing it anyway. She said, "You shouldn't have even been sent that file with that larger figure. That was for US, listing ALL the damage. It wasn't meant for you. Yours is just the £190."

I told her I have generously offered to make a £75 offer for a full and final settlement while not accepting liability and that they have until the 11th to accept. She told me she didn't have access to that email and that, "the manager of that department is on holiday." Erm... Ok...

Sadly, I forgot to ask which items on the list they were saying were mine. Eurgh!

So there you go.... At least now it's only £190 instead of £1519 that I'm fighting over. Which also means, when deciding how much they want to fight back, they are only putting all that time and effort in for a potential £190, so it might seem a lot less worth it for them. It also means my £75 is a much bigger percentage of what they are asking for, which is good. And it means that, should I lose for some reason, I'm only losing £190 instead of a grand and a half!!

Fingers crossed though!

Once again... Thank you for your help and influence.... I will let you know how it goes.

Paul.

**PablosD** · 5th October 2018, 10:37:AM

Morning. I hope everyone is well. I'm wondering if R0b or someone could possibly offer thoughts on this?

So I rang them up today (I've recorded the conversion) to ask exactly what the £190 is for. And I'm stunned.

She said that the original damage report came in at £1519, but the car sold at auction for more than was the expected amount (something to do with Glass prices) so they've reduced the damages accordingly! I said, "So, what you're saying is, because it was in such good condition it sold for one thousand three hundred pounds MORE than expected, but you're still expecting me to pay damages on what's left, even though the law states I have to return the car in reasonable condition, which, if you've sold it for over a thousand pounds more than you expected, it was clearly in good condition!"

She said, " Which is why we've reduced the amount for you. The final amount is £190." Completely missing my point! Unbelievable!

I don't know what they sold it for. The CAP figures on that damage list they sent me were £2350 for below average, £2625 for average and £2925 for clean. I've just found my old car on Auto Trader for £4995. The advert also contains a gigantic 74 pictures from every angle, showing how nice the car is!

Annoyingly, they're denying getting my email on the 27th of September that you helped me send. They've asked me to send it again, but there's only 6 days remaining on the 14 days I allowed them to respond. Als9, I feel the situation has changed from that email.

Although.... That could also mean I can ignore the £75 I offered. I could reply from scratch instead, offering them nothing! (If you think that's a good idea...) If they then came back mentioning the £75 I could remind them I have it on record that, apparently, they didn't receive such an offer!

I don't want to give them anything anymore to be honest. Not one penny! I think getting £1329 more than expected for the sale of a car says more than enough about whether it's in "reasonable" condition!!

Thank you for your time. Any help would, as ever, be greatly appreciated.

Paul.

**PablosD** · 5th October 2018, 10:40:AM

Ps.... It took every ounce of my willpower to not just pay the £190! Just so the whole thing is gone forever. I hate it! But I feel like I'd be letting myself down, letting down the people on here who put so much into helping others, and, most importantly, letting down all the people who might read this in the future and hope to find a solution to a similar situation that is getting them stressed, upset or burdened with few financial difficulties!

So I've pulled myself together again!

Go us!

**PablosD** · 5th October 2018, 10:42:AM

That should say "more financial difficulties".

I can't find how to edit posts and my phone types what it wants.

**Amethyst** · 5th October 2018, 10:48:AM

http://legalbeagles.info/forums/file...tch?id=1426974 ( word doc ) is a financial ombudsman adjudication that might assist going forwards. They had found their car had sold on ebay for a higher price.

R0b

* WON * VT - Damage charges... Startline