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

[R0b]

I will take a look either tonight or tomorrow, little busy today. It's up to you what you wish to include but what I would say is that a reply to defence should not be used a means to advance your legal arguments or provide evidence because that is reserved for witness statements and oral arguments at the hearing.

The reply to defence is simply to address anything newly raised by the defence or you wish to comment on something that you think is important and should be clarified. The other point is that by supplying too much information, you give the other side a golden opportunity to spend the time it needs to get their stories and arguments polished way before the hearing whereas you will only have 2 weeks when witness statements are normally exchanged before the hearing date.

In light of that, if you want to reconsider what you've drafted and put up a revised version, feel free to do so otherwise I'll take a look at what you've put.

[nothpyBH]

Ok thanks for that - I've taken off a few sections where I've called out evidence type statements - unsure about the rest (have called out in comments) - makes sense not to include the table then.

Here is the updated version.

[nothpyBH]

R0b I know we don't know what the outcome might be - but I wanted to thank you for your support in making the law accessible - it is daunting to see those aggressive letters from the solicitors - thanks again for your support.

[nothpyBH]

R0b Hi - did you get a chance to go through the updated defence response? I received a hard copy of the Letter to discontinue the claim today from Evershields and their paralegal was chasing on email too - why are these guys so aggressive?

[R0b]

Some law firms are more aggressive than others, but don't take it as a sign of weakness as that's not always the case. I would be inclined to simply reply to their email "Dear Sir, in response to your email, I would refer you to the reply given in Arkell v Pressdam" (Google it) but that's probably not appropriate these days!

If you discontinue now, you will be liable for their legal fees so they could be trying to take advantage of your possible lack of understanding in the rules. If you were to think about discontinuing (which right now is premature) then you should do so when the claim is allocated to the small claims track where legal costs are not recoverable. They could try to say your conduct was unreasonable but that's a high bar to achieve and rarely never happens in small claims. If they're so certain that your case is hopeless they can apply for summary judgment.

Unless they are going to defend this in principle, there's a possibility that they may give you a better offer further down the line as it may not be commercially practical to defend it to a hearing. Eversheds are not cheap lawyers but even if you take the hourly rate guideline for paralegals that's £110 per hour, which means that's roughly 30 hours worth of work before BH will end up paying more to defend the claim than simply settle it or come to an agreement.

Anyway, yes I've read the latest document and I still think there's some work to do so have a few questions/points.

1. Para. 4 I don't think you need to insert because there's plenty of case law that allows for deduction for use so that argument won't stick.

2. There's several paragraphs where you say it is admitted in part. I probably should have made myself clearer but when you admit something in part, you need to explain what part is admitted and what part is not. For example, you might say something like "It is admitted that ..." or "Except for XYZ which is admitted, paragraph X is denied". Sometimes it is not necessary to make a partial admission depending on what the contents of the paragraph states.

Here, you could probably deal with paragraph 5 and 6 together and say something like "As to paragraphs 5 and 6, the Claimant admits that the Dealer carried out the repairs as stated but the Claimant would further add that there were also the following additional issues that were of concern." You can then add the additional list of issues not covered by paragraph 5 or 6 and then go on to say some of those repairs required multiple attempts to fix and call them out.

3. Para. 7 needs revisiting again as per my comment on partial admission. I know I'm probably contradicting myself on what I said previously but if you have evidence of something you wish to rely on in court and would like to disprove what is said in the defence, you can briefly mention it here. An example would be "The Claimant agreed to the settlement in part but explicitly objected to the deduction of the monthly instalments. The Claimant will refer to several telephone calls between X date and Y date as well as email records confirming the Claimant's non-acceptance of the monthly instalment deductions." Of course you can expand on it here if you wish.

4. What is it you do not understand about para. 8.2? Sometimes dealers offer you additional products such as insurance or alloy wheel cover or servicing deals and whilst each of them may be individual contracts in their own right, they are normally rolled up into one monthly amount with interest added. As the deduction for use is based on the car's depreciation, they should not be benefitting from other elements of the monhtly instalment not related to the car's value (so the argument goes).

5. Para. 8.5 you mention 10 occasions at about 100 miles. Is that realistic for test driving these issues to confirm resolved? Any evidence to back it up?

6. Also in para. 8.5 you mentioned Tesla's PCP deal charges 9.6p per mile. I would suggest you insert that here since it's more directly relevant than using another manufacturer's example. Make sure to download/print out the offer and the table explaining the breakdown of charges as you will need that for evidence to refer to in court.

I would suggest you look at what I've mentioned, go back to the reply and make any changes you think necessary and then upload a clean version and will see where it's at. Also think about the rest of the defence and consider whether you need to reference other paragraphs. Have in the back of your mind that a reply to the defence will usually refer to specific paragraphs that require a response i.e. will you be adding any value by replying to the paragraph such as refining the issues, responding to new allegations or you feel it is important that you respond to a particular paragraph denying it and giving reasons - otherwise, there is no need to reply to every single one.

[nothpyBH]

R0b Hi - many thanks for the response and feedback. I don't intend to discontinue - just the weekly passive aggressive notes add to the stress after running with these issues since Jun 2020 - I googled the case you referred to - brought a smile to my face - thank you.

I've taken out references to Para 3 and 4 as there was no additional information to call out

Merged response to Para 5 & 6 for part admission. trimmed the list to only what was not called out earlier and also called out the repeated visits and failure to fix some issues

Updated reference to Para 7 as per your suggestion - I haven't added that the case officer agreed on calls and emails to take the objections further to the Ombudsman or the courts - saving this for the courts.

On 5.2 where the value added comment is made - for this deal - the interest would be the only component as I had not taken out other products as part of this agreement. Would they have taken this out separately?

I've taken out the reference to 100 miles for testing to 50 miles - this is only because I don't have proof - the service centre foreman told me that for checking wind noise they would take it on longer road tests on the M25 - which easily adds the miles - just that I don't have this in writing.

Updated the reference to Tesla's own business PCP numbers - which is financed by BH - I've taken a video of the website for reference - attached screenshot.


I've taken out all the tracked changes and made the document clean to read.

Also filled in some sections of the n180 - does it make sense to ask for Online option for hearing? Also - should I add any witnesses if I want to rely on email transcripts from the Black Horse case officer ?

[R0b]

Thanks, will have a look later and comment.

[R0b]

My brain is frazzled today so I've only done some quick changes and updates.. forgot to track changes so this is clean version. Have a read as I've added a few things in that weren't in before and updated other sections by removing certain parts to make it flow a bit better (I think).

Whether you want an online hearing is up to you but statistics suggest you have a better chance appearing in person that via video conference or telephone hearing. Obviously that choice could be made for you given the COVID situation but I would always prefer an in-person hearing.

Number of witnesses are those who are intending to give a witness statement. If it is just you, then it's 1. Your email transcripts are referred to in yourwitness statement as they are evidence.

Feel free to make the final tweaks and complete any missing sections not already completed. Once you are happy with the final version, I would suggest you give yourself a break from it, and read it again to make sure there's no final changes you want to make. You can send your N180 form and Reply to Defence via email but attach it as a single PDF if you can.

When sending the hard copy to Eversheds make sure you obtain a proof of postage and goes first class - don't forget we have a bank holiday Monday next week so do not leave it last minute.

Any questions let me know

[nothpyBH]

R0b Many thanks - I will make updates now and post this off this morning by next day recorded delivery and email to both the courts and solicitors

[R0b]

Just double check the email for the court as I'm not sure if its different for the Pilot Scheme, but if in doubt send it by post.

[nothpyBH]

I've sent it out already - I have responded to the same email as they contacted me on - I'll call and find out

[nothpyBH]

Confirmed it is the contactocmc email address itself that I sent it to - the lady on the call was nice enough to send it forward to the mediation team - she said we are looking at about 3 weeks to get a call to arrange the appointment for mediation

[nothpyBH]

R0b Hi - got a mail from the mediation service saying that they will call on the 08-Jul to discuss and propose a mediation in the case. The note also says they don't have any context on the case - will I get time to explain this to them?

[R0b]

Generally, you only have a 1 hour slot if its small claims mediation team. They will ring you first, ask you to give them a brief summary of the problem and what you would be prepared to agree to resolve it. This would ot be a time to bamboozle them with all the detail as you don't have the time - short, concise summary of the issue.

They will then hang up and ring the other side explain your position and confirm if they agree or if not, what are they prepared to offer. Back and forth until you reach a middle ground. If the mediator feels it's not going anywhere because no one is willing to budge, they might cut the time short. The court will be notified and then they will allocate a date and time for the hearing.

P.s. if you do agree a settlement, make sure to include costs of court fees. If you don't ask for it you will not get it.

[nothpyBH]

R0b thanks for getting back to me - thanks for these pointers.

I’ll stick to the numbers as we put in the response to the defence

if I agree to settle with them (will include the court fees) - is there any possibility for Evershed to claim any costs for their time from me?