Blackhorse Tesla - Issues with Settlement - Small Claims - Eversheds Sutherland LLP

[nothpyBH]

Hi Guys,


First time here - so hope I'm not writing something that is already raised previously.

We purchased a Tesla Model 3 as a company car (wife and I have a LTD company) - on a Hire Purchase agreement with Blackhorse - in June 2020.

The car was riddled with issues at delivery with Tesla promising to address all issues within a week. We take delivery of the car and then over the next 3 months - Tesla tried to fix multiple issues with paint, alignment, roof glass, wind noise, wheels, water ingress etc - not being fully successful.

I raise the issue to Blackhorse who agree this should not happen and open a case for quality - there are minimum standards to which a car can be sold as NEW.


They take over 9 weeks - and then assign an independent third party inspector to come and see the vehicle and provide a report back to them. All this while - they encourage to keep using the car and not be bothered by the delays on their end - promising me that this would not impact the outcome in any way.


The inspector assesses the car in Jan 2021 - and completes agrees the car cannot be sold as new with all these issues - and agrees many of the issues still persist.


Blackhorse decides to take the car back and wind down the agreement - only they want to keep part of my payments - 3 months to be exact - for usage - which amounts to approx £2400.


I agree to the rest of the settlement and don't agree that I should have to pay the £2400 for usage of a car - since they kept telling me the outcome would not be impacted - and this is not called out in the agreement I've signed with them anywhere.


As we could not agree on this, I had opened a small claims case against Blackhorse. They asked for a further extension of 2 weeks which was auto approved.


Today, I have received a note from Eversheds Sutherland (International) LLP who have been appointed as Blackhorse's lawyers in this case. They are asking for a further 1 month extension to the case - which I refused - upon which I got a very intimidating note from them - saying that I will need to pay their costs for filing the extension with the court!!!


I have gone back to them expressing that this has been going on for over 6 months now and I cannot take the stress anymore.



Any views on how I can deal with them?

[R0b]

Don't think there's enough information to go off, I've got a handful of questions at least.

Is the HP agreement in the name of the Ltd company or an individual name such as yourself or wife?

If it's in the Ltd company name, is there anything in the contract about deduction for use?

What was the predominant purpose of the car, business or personal use?

Did you continue to drive and use the car during this period? I assume you did but want to confirm and if so, how much of that was actual use e.g. not driving to and from the garage for inspection/repair.

You talk about a settlement, was this settlement agreed in writing? If so, that's what the parties will be bound by.

Did you send Blackhorse a letter before action before issuing legal proceedings?

Did Eversheds say why they needed the extension? I would have questioned why you need a full month for something when they already had 33 days to file defence (assuming you issued your claim via Money Claims Online).

In their response, did Eversheds say they are going to apply for an extension or just the threat of them potentially making one?

Finally, what is the basis of your claim, a copy of what you put in your particulars of claim would be helpful.

[nothpyBH]

Thanks for responding mate

Don't think there's enough information to go off, I've got a handful of questions at least.

Is the HP agreement in the name of the Ltd company or an individual name such as yourself or wife?
Ltd company

If it's in the Ltd company name, is there anything in the contract about deduction for use?
No mention of any deduction for use in the contract

What was the predominant purpose of the car, business or personal use?
Mixed. but due to the lockdown we hardly used it for business and more personal + to and from the Tesla Service centre.

Did you continue to drive and use the car during this period? I assume you did but want to confirm and if so, how much of that was actual use e.g. not driving to and from the garage for inspection/repair.
I did use the car - they kept saying that it was fine to use without any impact on outcome every time I called to address delays in my case.
About 300 miles in all can be attributed to the travel to and from the garage. At the time of reporting to Blackhorse in Nov 2020 - it was about 1800 miles - when they finally took the car back on the 01-Feb-21 the mileage was a few hundred miles under 4000 miles.

You talk about a settlement, was this settlement agreed in writing? If so, that's what the parties will be bound by.
The final settlement was offered by Blackhorse where they said they would give back the deposit and some payments - but keep the 3 months of payments.
I explicitly called out that the part where I had to lose the 3 months of payments was not OK. They were Ok for me to take the partial settlement and talk to the ombudsman or other legal routes for the 3 months of payments that were taken for usage.

Did you send Blackhorse a letter before action before issuing legal proceedings?
I spoke to them and emailed the team multiple times saying that I would go to court since they refused to revise the position or escalate internally

Did Eversheds say why they needed the extension? I would have questioned why you need a full month for something when they already had 33 days to file defence (assuming you issued your claim via Money Claims Online).
Yes Eversheds have been appointed by Blackhorse just now. Blackhorse's own team filed for the first extension after the initial 2 weeks.

In their response, did Eversheds say they are going to apply for an extension or just the threat of them potentially making one?
This is what they said in their note -
Thank you for confirming that you will accept service of documents and correspondence in these proceedings by email at the email address specified.

As regards the defence extension request, the Civil Procedure Rules (“CPR”), which govern litigation provide at rule 15.5 for parties to agree an extension of up to 28 days. The CPR encourages parties to agree reasonable extension requests and where one party will not agree the other party can apply to Court for the extension. The Court can award costs against any party that unreasonably refused an extension request. Such costs order can be made even where the underlying proceedings relate to a small claims matter.

We have only just been instructed and our client, Black Horse Limited (“BHL”), is yet to identify, locate and send to us all relevant papers. The purpose of the extension would be for us to fully consider matters, advise BHL and where appropriate look to engage in settlement discussions. There are therefore benefits in agreeing the extension including: i. potentially facilitating negotiation and settlement; ii. allowing a fully pleaded Defence to be filed and so avoiding a holding Defence being filed which may require amendment later; iii. avoiding unnecessary court time being taken up with an application to court for an extension; and iv. Avoiding unnecessary costs being incurred by the parties.

Your reasons for refusing the extension request are not reasonable or reasoned. The proceedings were issued on 23 March 2021. Prior to that you had been through BHL’s internal complaints procedure and we cannot see any delay in BHL making a decision on your complaint. If BHL’s decision did not meet with your expectation then that is not a reasonable basis for refusing an extension request.

We would therefore repeat our request for you to agree an extension to 24 May 2021. Should you still maintain your refusal then we reserve the right to refer this email and correspondence exchange to the Court and seek that you pay our costs of any application to Court for an extension.



Finally, what is the basis of your claim, a copy of what you put in your particulars of claim would be helpful.

I'm not able to send this across directly in a private chat (was not allowed to post)

[nothpyBH]

Have taken out the personal info from the attachments

[R0b]

So they're right that parties can extend but you don't have to agree any extension and certainly not obliged to agree the full 28 days. The purpose of this rule was to limit the number of applications being made to the courts to request an extension of time under for genuine and reasonable circumstances.

The Overriding Objective requires parties to assist the court and includes compliance with any rules, practice direction or order. CPR 15.5 wasn't intended to be abused by parties to a claim where their time management is lacking due to their own inactions and simply seek an extension of time because they've left it too late. I don't buy their point about setltement and negotiations because that's an ongoing duty and isn't contingent on filing a defence and which CPR 15.5. applies to. When you think about it, if you agree an additional 28 days, then they would have had a total of 2 months to file a defence due to BH's own failings of complying with the relevant time limits.

It's really up to you as to whether you want to give them the full 28 days. If it were me, I would compromise and agree a further 14 days but not without first pointing out that their client appears to have failed to engage or actively deal with the claim promptly. If they were on notice of your intention to issue a claim and take action, but did nothing or ignored you, then that's their prerogative. They can't then look to extend the time for filing a defence and then threaten you with costs if you refuse because they decide not to act fast enough. Even if an application for an extension of time were to be made, they would need to explain to the judge why an extension is needed and the judge may be less sympathetic if he/she becomes aware that it is BH that is at fault for not properly managing the claim and the delay was unjustified i.e. late instruction/acknowledge of claim.

Happy to look at your response and comment if you post up a draft first.

[nothpyBH]

R0b Hi - I’ve attached my response to the lawyers in the previous post - does it make sense? I’ve refused to extend

[R0b]

Yes I have looked but I don't think those reasons you've listed are sufficient for the purposes of agreeing an extension to for filing a defence. What you have mentioned are the issues in dispute but the question as to whether you should agree an extension to file a defence is whether BH have a reasonable justification for doing so - that is entirely separate to matters pre-proceedings.

Of course it is your claim so you can do whatever you please but it wouldn't surprise me if Eversheds did file an application for extension of time and you get slapped with their costs for being unreasonable or giving inadequate reasons for refusing the extension.

[nothpyBH]

R0b Ok thanks for that - given that their response is due on the 26-Apr, Monday - would they have already filed for the extension?

[nothpyBH]

Hi R0b here is a draft -

Given that Blackhorse significantly delayed the internal complaints procedure - also failed to respond to this claim within the stipulated 2 week period - and have already taken a 2 week extension - I do not feel it is fair and reasonable to ask for another month of extension.

I can at most agree to a 2 week extension - which should give you sufficient time to get the necessary documents and fully consider matters.

Please let me know by 10am on Mon, 26-Apr-21 if you would like to go for this option - as the current deadline is for 4pm on the same day.

[nothpyBH]

I've sent this across now

[nothpyBH]

R0b Hi

They have filed the defence - basically saying that I accepted the final claim and everything was settled - and there is no basis to ask for more money and the usage charges are fair.

The math is not correct in itself - even if I take the usage charges into account. I've tried to explain this below - taking the principle amounts (interest and troubles are not part of the principle cost)

Should I take this to a hearing?

Cost of car for reference	£49,990.00
Amount paid to Blackhorse	Initial Deposit paid (in line with defence response)	£7,699.00
Monthly Payments made over 7 months @£794.08pm	£5,558.56
Total (A)	£13,257.56
Amount refunded by Blackhorse	Deposit repaid	£4,699.00
4 monthly payments repaid	£3,176.32
Total (B)	£7,875.32
Amount charged by Blackhorse for usage	Blackhorse withheld to charge 3 months for usage (C)	£2,382.24
	Monies still with held by Blackhorse (A-B-C)	£3,000.00

[nothpyBH]

Also - I had specifically discussed the partial acceptance of settlement and taking the parts that we cannot agree with the Financial Ombudsman or the courts. I have an email from the case officer about this.

[R0b]

Sorry, I'm not sure I understand the table except the discrepancy of the amount charged for usage - are you suggesting they have taken more than they should for 3 months worth of payments?

You can file a reply to their defence and that would need to be filed same time as the directions questionnaire but that will probably get sent out in the next couple weeks or so nand then you usually have 14 days to send it back.

I've got a couple of thoughts but let me read the defence and mull it over before I post something. I think you might have to accept a deduction of sorts but it will be a question of how much..

[nothpyBH]

R0b Hi thanks for getting back - appreciate the support

thr deposit on the car was 7699 - 4699 (from me) and 3k ( plug in grant)

when they calculated usage - they just refused to adjust against the 3k - so even when their own defence acknowledges the deposit as 7699 - the refund calculations don’t take the 3k into account

[R0b]

Sorry I'm still confused, what's the relevance of the plug in grant? isn't that something paid directly to Tesla via the government? Why are you owed the additional £3,000?