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

[xs2man]

Lucky you. I'm so happy for you.

BMWFS has my account marked as VT'd and settled, but owing £1800 due to excess mileage, and it has drastically affected my credit score. I think it is finally time to move this on. I will write one last letter to them, highlighting your win, and re-affirming my position, and see if they back down. Otherwise it's off to "simple procedure" for me (Scottish equivalent of small claims court).

Again, congratulations. Must be a HUGE relief.

[charliesdad79]

Would you be able to provide details of the case number from the courts and at which court this was heard so I can reference this decision in my complaint to the Financial Ombudsman? I believe it is relevant.

[Rik192]

Hi RachRad , any chance of getting the reference etc for this case to use in my own? I have BMW FS VT Settled marker with 6 months+ overdue entries on my credit file due VT excess mileage. BMW are stating they have to record it and i have asked them to remove in light of this case win but they refuse. i wish to now begin Court action and need all the help i can get.

BMW have cited the same arguments that were listed here, so i think i have a case, but would like to be able to reference this win in my arguments.

I think i will also need to get a solicitor as i'm not sure i could reference the specifics properly myself! if anyone has any recommendations for a good legal counsel to fight this it would be greatly appreciated!

[dufc]

Hi, my daughter is now being pursued by MBFS on the same basis. Could you possibly let me have the case name and references so that I can respond to them, please? Many thanks.

[R0b]

Has MBFS issued legal proceedings or are they just chasing you on this?

[dufc]

Has MBFS issued legal proceedings or are they just chasing you on this?

MBFS are pushing for payment :

"Further to your recent letter received by our offices, please note whether you are returning your car at the end of your agreement or upon use of the Voluntary Termination (VT) clause, as you have not exercised your right to purchase the car, an excess mileage charge will be raised should your return mileage exceed your total mileage allowance.
This obligation is set out within the first page of your agreement, under key information. The provisions of the Consumer Credit Act that cover a customer's right to VT their agreement do permit us to include any over mileage when determining what is 'not reasonable' upon the cars return. It is stated in your agreement under 'Excess Distance'; 'If the vehicle is returned to us (whether at the end of the period hire or an earlier termination), we will calculate the total distance travelled by the vehicle whilst in your possession (the "Total Distance")'.
Your mileage allowance has therefore been re-calculated on a pro-rata basis in line with the length of time you have had the vehicle in your possession.
I would also like to kindly refer you to S99 (2) Consumer Credit Act 1974 where it states:
'Termination of an agreement under S (1) does not affect any liability under the agreement which has accrued before the termination.'
The conditions of the Consumer Credit Act do permit us to determine what is considered reasonable condition. As excess mileage has a negative effect on the value of the vehicle, this is not considered reasonable and Mercedes-Benz therefore retains the right to charge for this following the voluntary termination of an agreement.
To arrange payment of your De-Fleet invoice by bank transfer, please use the following bank details....."

[R0b]

The excess mileage charge is a contractual clause which is prohibited by the limitation of liability under Section 100(1). Their argument on Section 99(2) is a non-starter because they tried to argue that point in the County Court case and the judge was having non of it.

In fact, the judge rejected their argument that the excess mileage charges were rolling throughout the contract and accepted that there were excess mileage charges when the agreed mileage allowance had exceeded, but those charges only became payable when the contract terminated. the charges did not accrue for each mile exceeded rather the charges crystallised when the agreement terminated. The judge also said she was bound by a higher authority as well as pointing out other things that went against MBFS.

I'll PM you the name of the case but I suspect whoever you are talking to knows it already because that last paragraph on the condition of the vehicle was a similar remark made by the judge where they tried to argue the excess mileage put the car in an unreasonable condition, though the judge rejected that too and said there is no evidence offered by MBFS to support that correlation.

On a side note, there is further support of case law to suggest that a duty outside a contractual obligation (which in this case is the duty to take reasonable care of the vehicle under s.100(4)) is a breach of tort and not contract. This point was made in a Court of Appeal decision in Jarvis v Moy 1936:

... where the breach of duty alleged arises out of a liability independent of the personal obligation undertaken by contract, it is tort, and it may be tort even though there may happen to be a contract between the parties, if the duty in fact arises independently of the contract.

Another helpful Court of Appeal case is Robinson v P E Jones (Contractors) Ltd in which this was said:

It is important to note that a person who assumes a contractual duty of care does not thereby assume an identical duty of care in tort to the other contracting party.

To add to the above, White v Jones is a House of Lords case and is one of a line of authorities that confirms pure economic loss (that is loss which does not derive from physical damage but is purely financial) is not recoverable for breaches of negligence in tort (see quote below).

The law of England does not impose any general duty of care to avoid negligent misstatements or to avoid causing pure economic loss even if economic damage to the plaintiff was foreseeable.

I could go on an on about it, and I still hold the belief that those charges aren't enforceable but they will no doubt keep trying. If it were me, I'd send them four words... Take me to court.

[dufc]

Thanks Rob.

[Patch77]

Hi there. I may be in a similar position as I am about to VT my PCP agreement with BMW FS. Could rob or RachRad please provide the case reference in case I need it. That would be really helpful. I will update on how I get on. Thanks

[Scouse19]

Hi there. I may be in a similar position as I am about to VT my PCP agreement with BMW FS. Could rob or RachRad please provide the case reference in case I need it. That would be really helpful. I will update on how I get on. Thanks

Yes, i'd appreciate it if someone could send me the transcript, or if don't have it, the case details, so I can request a copy of the transcript via an EX107 form. Thanks guys

[Amethyst]

Think this is it >> https://legalbeagles.info/forums/fil...tch?id=1471547

[Scouse19]

Think this is it >> https://legalbeagles.info/forums/fil...tch?id=1471547

Thanks for posting this! You are a star!

[JTwents]

Thanks Rob.

Hi dufc,

I've just had the same response from MBFS after sending the excess mileage response letter. Greatly appreciate any advice on the next steps you and your daughter took if possible please? Hopefully it was successful!

Thanks,
JT

[rednus81]

RachRad, congratulations for your win. I'm in a similar position. Just a question, which is open to all contributors, at what stage can I start legal proceedings? The last letter I received from BMWFS stated that they were not willing to accept the 'non prejudicial' offer of 50% as a settlement, and the full amount of £1500 remain payable. This is for excess mileage charges only, i.e. no charges were imposed for condition of vehicle when returned. They also mentioned that they will lodge a late payment marker if the full amount was not settled , and I've received 1 late payment interest charge. No correspondence received from BMW solicitors yet. Will a response letter suffice ( statement of truth ) for now ?

[Will Ashley]

Hi I have been given an excess mileage charge by Mercedes.*Do I have to pay this? I have seen some information online that states that this is a grey area
and I can avoid this charge. If someone can provide some advice on this that would be great. Thanks Will.*