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

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi [MENTION=71570]R0b[/MENTION],

I am in the process of drafting a defence. 33 days from the claim date would be 6th Sept but I'd like to send it a few days before this.
I'm planning to use your template with some additions.

I submitted a Part 18 and I have attached their response.
Quick question: In their reply to request 1. They draw attention to section 12.1 of the HP agreement where it states that I must pay the excess mileage charges even if upon "Early Termination." Does "Early Termination" mean any other kind of situation where the agreement comes to an end prematurely OTHER THAN by voluntary termination? And is that specified somewhere or is that just a presumption.

Also, as that seems to be the crux of their case (rather than trying to argue that the mileage is an accrued charge or that the mileage rendered the vehicle in inreasonable condition), I would like to focus on s.173 of the CCA as a defence to this.

They also sent a copy of a vehicle condition report that took place some time after collection where they detail damage to the alloys (no pictures), which is obviously contrary to the vehicle condition report which was conducted in my presence upon collection. I have attached this but can if you need to see it.

Thank so much

Rachel

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi Rachel,

Indeed from looking at your Part 18 Request, they seem to be relying on the contract rather than the CCA. Early termination could mean whenever the contract is terminated earlier than it should be, for whatever reason. It is a matter of contractual interpretation, and since it doesn't carve out any exceptions it could be reasonably presumed that it would mean any termination.

You are right however to look to using section 173 of the CCA. The agreement is regulated by and subject to the CCA and s.173 expressly states that if there is any provision which imposes additional liability above and beyond the rights and liabilities under the CCA (i.e. the limited liability under s.100(1) of the Act) then then that provision is void.

Are you saying you were giving a condition report at the time it was carried out on collection? If yes, then you should certainly use this as a defence to any claim and even more difficult for them to prove if you haven't got any pictures of the alloys.

In terms of drafting your defence, there are many ways of going about it however I am of the view that where you have a good defence case, you should hit hard. This is for two reasons:

1. you can show the other side that you are not backing down and have raised a good defence that could stand its own ground. They may then decide not to pursue the claim (though don't rely on this or expect it).

2. Judges are supposed to be impartial however, judges have to read your defence and if you have made a robust defence against the claim by refer to relevant case law, evidence you have and legislation, you are already painting a picture to the judge of what the case is about and what you seek to rely on. It is likely the judge is already going to form some kind of opinion and look to the Claimant to justify their case and/or evidence their allegations.

I know I've already provided a defence example, but I've added an updated one on the VT guide here ->http://legalbeagles.info/forums/show...on-Your-rights

Once you've drafted something, happy to look over it if you like if you post it up.

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi R0b,

Almost finished with my defence, I'd love for you to take a look when it's done.

Yes that's correct, they gave me a vehicle condition report when they collected it which details no damage (date 9th March 2016). This differs to the vehicle condition report they are relying on which was carried out a month later (11th April 2016). Also, I have just noticed that the excess mileage charges have been applied to the latter odemeter reading which is 123 miles more than when they collected the vehicle from me.

Are this points that I should address in my defence??

Thank you

Rachel

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Absolutely, you should insert anything that is relevant and contradicts their claim - so include reference to the condition report and the date of it as well as the mileage and add that they have attempted to include the extra mileage not incurred by you so they are not entitled to it (probably work out about £10 deduction but nonetheless it doesn't paint them in a particularly good light if they are claiming stuff they aren't entitled to).

I would also suggest that you make reference to the Part 18 reply so that it is on record of what reasons they are intending to rely on as part of their claim given their poor particulars on the claim form.

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi R0b,

I've attached my defence. Please let me know what you think.

(on point 11. it should say paragraph 8 rather than paragraph 7)

Thank you so much

Rachel

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi Rachel,

I've attached an amended version based on my thoughts (apologies I did track changes but accepted and saved after by mistake!). You will see that I've rejigged a few things around and inserted a few other points.

I removed certain things like the reference to the FOS simply because if you didn't accept the FOS' decision then it is not legally binding on the parties and MBFS could in theory still pursue it so I think it is not as relevant in this case.

I also do not think the reference to inadequate particulars is relevant since you have received further information under your Part 18 request for further information so I've adapted that.

I rejigged the excess mileage to the bottom purely because it repeated the paragraph regarding the termination statement on page 2. However if you prefer the excess mileage to be at the forefront then that's fine but would suggest you incorporate the paragraph on the termination statement in the excess mileage defence and then cross refer under the rental instalments - otherwise I would leave as it is.

You will see I've added a couple of extra references such as Brady v St Margaret's Trust and the book by Russell Kelsall (you can find the extract in the VT guide under FAQs excess mileage). These should hopefully assist you if the matter did go to court and you wanted to defend it.

Obviously you don't have to accept these changes then you are free to revert back to what you had before. Before you submit your defence, I would stress the following:

1. double and triple check your defence to make sure you are happy with it and there are no spelling or grammatical mistakes and that if your cross-referring to another paragraph in the defence then it is the correct paragraph.
2. Make sure to annex all intended documents, which in this case is the contract, the Part 18 request, and your condition report. I don't think there is anything else?
3. Finally, as the agreement is under your mother's name, it will have to be her who signs the defence, not you. as she is the Defendant in the claim.

The defence is not likely to fit into the defence box online so you will need to email it to the CC Business Centre instead. You can do this by emailing to the defence and annexes to ccbcaq@hmcts.gsi.gov.uk. I would suggest that you send the defence and annexes as one single PDF file to be sure that all documents are put on the courts file and sent to the other side. A website I use to combine PDFs is https://smallpdf.com/merge-pdf

I would also separate the annexes so it is clear what is what and you can do this using the example document below which should slot in at the beginning of each of the documents. As you can see from my amended defence, I referred to each document as annex 1, 2, 3 etc. for ease of reference and the same should be done below.





Finally, although the Court should forward on the defence to Mortimer Clarke, there is no harm in you doing so you can be sure they received it and the documents as courts can sometimes forget things.

The next step is to draft a witness statement, and although it is not likely to be required for some time, I would suggest you get onto it asap so you are ready and prepared.

Any questions let me know.

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Hi R0b,

Thanks so much for this. Quick question re. the inadequate particulars of Claim: I thougth it would paint them in a bad light if i highlighted this? I mean, they've mentioned vehicle damage and rental even though neither of those contribute to the monetary relief they are claiming. I'm assuming it's just some generic template they've used.

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Its entirely up to you, the purpose of the inadequate particulars is to show that they have no cause of action and or not sufficient information to know your position. However since you have made a Part 18 that seems to defeat any issue about the lack of information to enable you to know what your up against. I can't remember if the Part 18 refers to any calculation of costs for each head of damage and if it doesn't then you could still include the reference to poor particulars but still make sure to annex the Part 18.

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

My defence has been filed so I'm just waiting to hear if MB wish to proceed...

Thanks so much for your help thus far [MENTION=71570]R0b[/MENTION] and i will update when i hear

[RachRad]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

So I've received a response to my Defence from Mortimer Clarke which I have attached. I waited to the last minute to send them my response which I've also attached. I hoped to make my reply somewhat open ended in order to waste a bit more time in the hope they wont confirm to the court in time they wish to proceed.

My laptop was playing up so I've had to use my phone to try and redact these documents so I hope I've done it okay.

Rachel

[R0b]

Re: VT Excess Mileage MBFS County Court Claim Mortimer Clarke Pls Help

Sounds like a standard response from Mortimer Clarke as seen from other threads. A good response at the end of your email to suggest that they start the opening bid for any settlement, they may well take you up on that so we will have to see how it pans out.

I was digging through some old paperwork and came across a consultation carried out by the government in 2004 when it considered removing the VT provision from the CCA. In the end it decided not to and felt that the option to VT goes to the heart of the CCA and affords protection to debtors, despite lobbying from lenders saying debtors are abusing it by terminating when the car goes into negative equity. At the same time, other responses suggested that debtors would also VT but take out a new agreement with the same lender.

Anyway, more importantly, is section 5 of the paper, which sets out the Government's understanding of the liability when a debtor exercises a VT right and what he/she is liable for:

5. What is Voluntary Termination?

Sections 99 and 100 of the CCA permit a customer who has purchased goods on a HP agreement or CS agreement to hand back the goods to the finance company and have no further liability under the credit agreement provided at least 50% of the total amount due under the agreement has been paid. This is called voluntary termination (“VT”).

The above further confirms that the liability is limited to 50% of the total amount payable (excess mileage does not form part of the total amount payable). So any argument by MBFS about the right to enforce the contractual term or section 99(2) simply falls away.

That leaves the issue about taking reasonable care of the car. Exceeding the agreed mileage does not, on the face of it, conclusive proof that you have not taking reasonable care of the car. In fact, based on the claim by MBFS their failure to take reasonable care argument is simply dressed up as a breach of contract claim (as evidenced by the sum of damages which equates exactly to the pence per mile for each exceeded mile).

Section 100(4) does not concern itself with the value of the car sold, rather it imposes a duty of care on you to look after it. As a matter of principle, if you owe a duty to take reasonable care of the car but fail to do so and that failure causes damage to the vehicle then you will be liable to compensate MBFS - it is a case of whether or not you were negligent. The burden of proving negligence falls on MBFS to establish this and therefore the central question for the court to determine can be set out in 2 parts:

1. Did you fail to exercise reasonable care by exceeding the agreed mileage?
2. If yes, did the excess mileage cause damage to the vehicle beyond wear and tear?

If the answer is yes to both questions then you are liable. This is where the Brady v St Margaret's Trust case comes into play, which clearly suggests the price of the vehicle is in no way suggestive of the vehicle's condition. Rather the question is did you do what was reasonably expected of a person hiring the car whilst in their possession? Ensuring the car is regularly serviced, plus having a valid MOT as well as any repairs in the course of running it is all evidence that you have taken steps to take reasonable care. It is up to MBFS to disprove that and I think that their speculation that it caused damage beyond wear and tear or that the sale of the vehicle meant it was no reasonably taken care of won't fly in court.

So, going back to the original point, the mere fact that you exceeded a contractually agreed mileage cannot, itself, lead to an inference that you have not taken reasonable care. It is up to MBFS to provide evidence of that you have been negligently cared for the vehicle.

I've attached the consultation if you wish to read it, the relevant extract is on page 5. I'm also in the process of drafting an example skeleton argument that could assist you with your arguments in court and also some points to note to go with it.

[RachRad]

Just as an update to my case, I am now preparing a final defence as my court date approaches. 26th February.

Do you have the case law you've mentioned in earlier posts please R0b

Could you please kindly advise if there is anything I must do before the court date to notify the court that I am to be speaking on behalf of my mum. The case has been filed against her even know for all intents and purposes I am the one Mercedes have actually been dealing with.

thank you


Rachel

[R0b]

I'll pull everything I have together and upload it for you when I get home tonight.

[RachRad]

I'll pull everything I have together and upload it for you when I get home tonight.

thanks so much. am up to my eyeballs in photocopying!

[R0b]

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