*** WON !! *** VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

[RachRad]

Hi Rach

See the link below, which contains the relevant provisions of the CCA and also some case law to assist you as well as the Consultation Paper on Voluntary Termination. I've added some arguments to help guide you in terms of what you might want to say but I should explain that the arguments are based on what MBFS might say and on the basis they have no evidence to support their interpretation of the meaning of "reasonable care" for example.

I would not encourage you to read verbatim and you will need to adapt yourself in court and prepare for the judge to ask questions and throw you off what you were saying so be prepared. If there are any questions beforehand feel free to ask and will try to answer them - it's obviously all about how you can present your case in court and persuade the judge at the time.

I would also suggest you make 3 copies of everything- one for you, the other side and the judge for the day in court. You can send the evidence and case law to Mortimer Clarke 3 working days (by email as evidence to show the court it was sent if need be) before the hearing but expect their representative to turn up without any papers so carry a spare just in case.

https://www.dropbox.com/sh/ba7vna7o9...DER7_GXQa?dl=0

Thanks so much for this. I have mentioned the Robert Kelsell book in my original defence. Do you have the relevant excerpt or shall I omit it from my final defence?

THank you
RAchel

[R0b]

Hi Rachel,

I've attached the reference to Russell Kelsall book.

Pages 249 - 251 are relevant and self-explanatory, but note the reference about taking reasonable care. Mr Kelsall also suggests that the duty to take reasonable care also relates to the condition of the car i.e. physical condition not the financial value/loss.

[RachRad]

Thank you. I will post up my final defence tomorrow for your thoughts. It has all been sent off now so we will see what happens on the day..

[RachRad]

So following receipt of my defence bundle where I point out that they have even claimed for wrong amount of mileage (and therefore there POC were incorrect) MBFS solicitors have sent me a letter arguing that they have now revised the amount that they are claiming for (lesser amount). Is this allowed so close to the hearing?
Surely this makes them look less credible - there entire claim had been based on an incorrect figure.

shall I write to the court and to them objecting??

R0b

[RachRad]

Their not there**

[R0b]

Hi Rach,

There's not much you can do I'm afraid, but you could raise the point at the beginning of the hearing and point out to the judge that MBFS have claimed an incorrect sum of money, but I wouldn't expect the claim to be thrown out as it doesn't affect the substantial arguments being made. Do take the letter as evidence in case they object or deny this was the case.

I would also suggest that you get a dictionary definiton of the meaning "condition" maybe from oxford or cambridge online and bring it with you as part of your evidence.

[RachRad]

Hi Rach,

There's not much you can do I'm afraid, but you could raise the point at the beginning of the hearing and point out to the judge that MBFS have claimed an incorrect sum of money, but I wouldn't expect the claim to be thrown out as it doesn't affect the substantial arguments being made. Do take the letter as evidence in case they object or deny this was the case.

I would also suggest that you get a dictionary definiton of the meaning "condition" maybe from oxford or cambridge online and bring it with you as part of your evidence.

Thank you for all your help R0b
The case is being heard tomorrow at 10am tomorrow so off to court I go. What will be will be. I will keep you updated on the outcome.

[Phaeton]

Good luck

[RachRad]

Hi all, just wanted to quickly share that I won the case!

I will share more details once I get home later

[Amethyst]

Congratulations RachRad, R0b will be pleased Look forward to hearing more details about your day later.

[R0b]

Fantastic news! Look forward to you posting the fully story when you can, this will be really helpful to others if you can give as much detail as possible in terms of what was argued by the other side, how you argued your points and what the judge said (both good or bad).

[RachRad]

Hello all, apologies this is late.
So up until the hearing, MBFS were relying on the contractual term contained within the HP Agreement which stated that I agreed to pay for any excess mileage and were adamant that this was enforceable. In their witness statement, they relied upon s.99(2) of the CCA and also 100(4), arguing that by exceeding the agreed mileage I had not taken reasonable care of the goods. Throughout my dealings with them, it was always my impression that s99(2) was the main crux of their argument.
To start the hearing, we agreed that the dispute was essentially a point of law and not disagreement as to the facts of the case.
The Judge allowed the solicitor for MBFS to present his case first. He drew attention to the excess mileage term in the HP agreement and then presented 2 limbs of his argument:

• Firstly, that by exceeding the agreed mileage, I had not taken reasonable care of the car. S.100(4) which states that “If the debtor has contravened an obligation to take reasonable care of the goods or land, the amount arrived at under subsection (1) shall be increased by the sum required to recompense the creditor for that contravention, and subsection (2) shall have effect accordingly”
• Secondly, he argued that the excess mileage liability was a “rolling charge,” that it was a liability that accrued before termination and was therefore included within the definition of “total price”

I was then allowed to present my case.

• In order to answer the opponent’s reliance on my contractual obligation to pay for excess mileage, I immediately drew the Judges attention to s.173 to demonstrate that the contractual term was void as it was inconsistent with the protection afforded to me by section 99 and 100 because it imposed an additional liability.
• I then referred the Judge to s.100 (1) and argued that “total sum” excluded any sum payable as a penalty or compensation or damages. I pointed out that in the HP Agreement, the provision for excess mileage was stated under the heading, “DEFAULT CHARGES” – clearly, the charges for excess mileage was to be considered a penalty
• I referred the Judge to Julian Hodge Bank Ltd vs Hall to reiterate this point.
• I argued that 99(2) was not applicable as the liability for excess mileage was clearly not a “rolling charge”, or accrued prior to termination because the amount payable would only become apparent upon termination of the contract.
• I referred the Judge to the TERMINATION:YOUR RIGHTS section of my contract which clearly states my limited liability.
• With reference to the Claimant’s submission that excess mileage was a determinant of “reasonable condition” I had included a copy of the BVLRA Fair Wear and Tear Industry Standard. I argued that the vehicle was returned in a condition fully compliant with this as evidenced by the vehicle collection report which detailed no defects whatsoever.
• I referred the Judge to a section of the HP Agreement itself entitled “Vehicle condition terms” which only lists regular servicing and maintaining the car in a “good and clean condition” and repairing any damage as markers of “reasonable condition”. I pointed out that excess mileage was not included in this.
• I referred the Judge to the authorities of Brady and Broster

At this point began to struggle with my argument because I hadn’t expected the Claimant to rely so heavily on section 100(4) as an argument. I had not read the authorities properly nor had I prepared to fit it into my argument. The Judge pressed my on how each authority helped my position and to be honest, I just blagged it. The judge said that she didn't see the relevance of these cases but it was definitely because I didn't argue them well.

The Judge allowed the Claimant’s Solicitor to answer some points and then we adjourned for her to deliberate for about 40 mins before reconvening to hear her judgement.
I will try and get a transcript to post here but in essence she said that she could not find that there was a correlation between vehicle condition and excess mileage and so that part of the Claim had to fail even without having to rely on s.173. She said there was nothing in the agreement to suggest that there as any such correlation. She said that she was supported by s.100 of the CCA which excludes penalty charges from the definition of “total sum” and she said she was bound by the authority set out in the Julian Hodge case.
With regard to the second limb of the Claimants case she said that the liability for excess mileage “crystalised” upon termination of the contract and did not find that it was a liability accrued before this point and that part of the Claim also must fail.
Claim dismissed!!

My advice for anyone considering defending a claim for excess mileage following VT:

1. I would be wary about defending a claim where the exceeded mileage is very significant – I think it would be very difficult to argue the “reasonable condition” points in that situation
2. I would prepare more for the possible arguments surrounding 100(4), although, in hindsight I’m not sure that it is applicable to excess mileage charges (?? The “installation charge” referred to in s.100(2) is defined in s.189 and doesn’t seem to mention excess mileage)
3. Don’t underestimate the power of an authority – I wish I had read and understood and applied the Brady v St Margaret and the Broster cases to my argument beforehand. I didn’t prepare properly. She mentioned the Hodge authority in her Judgement and so these precedents obviously carry a lot of weight in court.
4. Be prepared not only to state your case but to also be pressed by the Judge. For each of my arguments, she asked how it was relevant and everytime the Claimants solicitor put forward an argument, she asked me to respond. The hearing took about 1 and a half hours and then another 30 mins for the judgement.
5. Every case is different and judge is different and every argument can be put forward in a different manner – but if you have a case that has similar circumstances, I would say it is definitely worth a fight if you’re prepared to go all the way. It saved me £1300.
6. Don't underestimate (like I did) just how prepared the Claimant's solicitor will be. He deifnitely did his homework and had an answer for everything.
7. Don’t call the Judge “Your Honour” (like I did (only once!))
8. And don’t curtsy to the Judge (like my mum did!) – not a good look

When we were waiting for the judgement, I honestly thought I'd lost because I felt that the MB solicitor had argued his case so well. But thank God I was wrong. The court usher came up to me after and whispered "the Judge was really impressed with how you presented your case." This has been hanging over my head for over a year and I'm so thankful it all behind me.

R0b, again thank you so much for your dedicated time and assistance and advice – I could have won the case without it. I must also thank my other half who successfully defended a claim from UKPC regarding erroneous parking charges and really helped to prepare my case for court.
Feel free to ask any questions

[jezza2016]

Congratulations on your win! It's about time these finance companies are challenged and found acting illegally in most cases.
I have a question - did MBFC put a marker on your credit file and has that been withdrawn as part of the settlement?
Thanks

[jezza2016]

*MBFS

[RachRad]

Thank you. The account was marked as VT'd but not as defaulted and credit score was unaffected