Tweet
Re: Excess Mileage Default - Claim to remove marker
Going to court is always a risk in that litigation does not guarantee a win from either side, unless the dispute is so clear cut and the higher courts have already ruled on the problem in question. No solicitor or barrister or any person can say you are definitiely going to win but simply advise on the prospects of success.
For disputes arising out of VT, there is next to nothing that I am aware of where cases have gone to court. There is one person who posted on here not too long ago claiming that Mercedes are taking him to court over excess mileage charges worth over £1,000 but hasn't replied after making some inquiries.
When evaluating a claim it is generally based on the strength of the evidence you have by comparing it with the the evidence against you. If there are any gaps in your evidence, what evidence can you supply to fill in those gaps, if any.
In terms of costs, there is a basic principle that in small claims cases, the successful party cannot recover their costs in the case, though they can be reimbursed for some expenses which include:
- Court fees
- Expenses incurred by the successful party and any witnesses e.g. parking ticket or other travelling expenses
- Loss of earnings for parties and any witnesses (up to £90 per day)
Costs is always discretionary by the judge and they will have the final say in whether or not they should be awarded. In your case, if you lose then if costs are awarded, they would probably be minimal as solicitors costs can't be recovered should they choose to instruct them, which is highly likely. The only other rule where costs can be insreased from the fixed amount, is for unreasonable behaviour. This may include where the case is hopeless or your conduct during the claim is unreasonable e.g. ignoring the other side and not corresponding with them throughout the whol process.
You will not need to declare anything regarding the court case if you lose, all that will remain is the marker against your credit file. But if you do win, then the court would order that the marker be removed and award compensation if you claimed for it which would probably recommend in addition to the removal of the marker.
The application fees incurred by you will depend on what you are claiming. If you claimed up to £300 for damages then your total fees will be £50 for issuing the claim and the hearing fee if it got to that stage. A recent case judged by the Court of Appeal awarded a claimant £750 where the finance company recorded a default 'in error' and the claimant didn't notice this until 4 months later. Of course your circumstances are different in that BMW have intentionally and perhaps maliciously recorded a default so you could obtain a higher award, which comes with higher fees. A recent County Court case awarded around £1,000 for breach of data protection when filing a default, though CC decisions are not binding they are nevertheless persuasive and indicative of what could be awarded.
The only other case which I am aware of is my own, which I have recently issued but my issue relates to the finance company recorded defaults on my credit file because I refused to pay the collection charge. They instructed solicitors, who intended to defend in full but days later have offered to settle the claim. It is still ongoing as we haven't come to an agreed settlement yet but equally it could still go as far as court if no settlement has been reached.
The type of claim you'd be making would be almost identical to the one I have brought as it relates to the same relevant legal provisions, except your facts relate to excess mileage and mine was collection charges. In my view, there does seem to be strong evidence you could rely on which is the termination statement because it says that provided you satisfy the conditions of paying 50%, taking reasonable care of goods and paid any overdue instalments then you will pay nothing more. The starting point for courts is that they will normally read a clause in its ordinary and natural meaning and the clearer the meaning the less likely a court will depart from that meaning. The meaning 'you will pay nothing more' is unequivocally clear to me in that there is nothing more to pay upon the conditions being fulfilled.
Hope that helps
Going to court is always a risk in that litigation does not guarantee a win from either side, unless the dispute is so clear cut and the higher courts have already ruled on the problem in question. No solicitor or barrister or any person can say you are definitiely going to win but simply advise on the prospects of success.
For disputes arising out of VT, there is next to nothing that I am aware of where cases have gone to court. There is one person who posted on here not too long ago claiming that Mercedes are taking him to court over excess mileage charges worth over £1,000 but hasn't replied after making some inquiries.
When evaluating a claim it is generally based on the strength of the evidence you have by comparing it with the the evidence against you. If there are any gaps in your evidence, what evidence can you supply to fill in those gaps, if any.
In terms of costs, there is a basic principle that in small claims cases, the successful party cannot recover their costs in the case, though they can be reimbursed for some expenses which include:
- Court fees
- Expenses incurred by the successful party and any witnesses e.g. parking ticket or other travelling expenses
- Loss of earnings for parties and any witnesses (up to £90 per day)
Costs is always discretionary by the judge and they will have the final say in whether or not they should be awarded. In your case, if you lose then if costs are awarded, they would probably be minimal as solicitors costs can't be recovered should they choose to instruct them, which is highly likely. The only other rule where costs can be insreased from the fixed amount, is for unreasonable behaviour. This may include where the case is hopeless or your conduct during the claim is unreasonable e.g. ignoring the other side and not corresponding with them throughout the whol process.
You will not need to declare anything regarding the court case if you lose, all that will remain is the marker against your credit file. But if you do win, then the court would order that the marker be removed and award compensation if you claimed for it which would probably recommend in addition to the removal of the marker.
The application fees incurred by you will depend on what you are claiming. If you claimed up to £300 for damages then your total fees will be £50 for issuing the claim and the hearing fee if it got to that stage. A recent case judged by the Court of Appeal awarded a claimant £750 where the finance company recorded a default 'in error' and the claimant didn't notice this until 4 months later. Of course your circumstances are different in that BMW have intentionally and perhaps maliciously recorded a default so you could obtain a higher award, which comes with higher fees. A recent County Court case awarded around £1,000 for breach of data protection when filing a default, though CC decisions are not binding they are nevertheless persuasive and indicative of what could be awarded.
The only other case which I am aware of is my own, which I have recently issued but my issue relates to the finance company recorded defaults on my credit file because I refused to pay the collection charge. They instructed solicitors, who intended to defend in full but days later have offered to settle the claim. It is still ongoing as we haven't come to an agreed settlement yet but equally it could still go as far as court if no settlement has been reached.
The type of claim you'd be making would be almost identical to the one I have brought as it relates to the same relevant legal provisions, except your facts relate to excess mileage and mine was collection charges. In my view, there does seem to be strong evidence you could rely on which is the termination statement because it says that provided you satisfy the conditions of paying 50%, taking reasonable care of goods and paid any overdue instalments then you will pay nothing more. The starting point for courts is that they will normally read a clause in its ordinary and natural meaning and the clearer the meaning the less likely a court will depart from that meaning. The meaning 'you will pay nothing more' is unequivocally clear to me in that there is nothing more to pay upon the conditions being fulfilled.
Hope that helps
Comment