New PCP voluntary termination excess mileage charges - Solicitor stage

[shane07]

Hi, I will keep it brief. Your help will be truly appreciated.

- Using the template letter I voluntarily terminated my car contract in January.
- Mercedes came and collected the car and I didn't hear back for some time.
- In May, they sent some letters asking £7000+ , then letters from the debt agency dlc, then received a letter from the solicitors saying they will take to court in 14 days if we don't pay. There's 5 days left now.
- I didn't respond to any letters as I thought I made myself clear in the initial letter - ''Such terms imposed are inconsistent with my rights under the Act and are therefore deemed void and unenforceable''
- They didn't specify why they wanted £7000+ . I assume it is for excess mileage.
- During my contract with Mercedes, the car broke down 7 times. 5 times they repaired it free under warranty. Last 2 times was in January 2017 due to the same issues but they charged me £1500 and then another £250 to repair as it was just outside warranty and they maintained it was different issues. I complained many times but they didn't refund. I had an extremely bad experience with this car.
- It's due to these and other financial reasons that I terminated the contract.

Do I need to do anything or wait to see if they take it to court?

Thanks a lot.

Sorry, what the letter from Mortimer Clarke actually says is that ''we have been instructed by our client to issue a Claim against you in the County Court for the full balance, plus any fees and costs that the court may award our client'' . That is if I don't pay them in the next 5 days or so.

[shane07]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

Sorry, what the letter from Mortimer Clarke actually says is that ''we have been instructed by our client to issue a Claim against you in the County Court for the full balance, plus any fees and costs that the court may award our client'' . That is if I don't pay them in the next 5 days or so.

[R0b]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

Hi Shane,

Please could you upload the letter with your personal information redacted. If you can't then you could email it to Kati@legalbeagles.info and she will do it for you - make sure it is clear to read though.

Do you believe the charges relate to the excess mileage only, were you given a damage condition report, was there any issues surrounding that?

Finally, what is it you want to do? If you have read these forums, the excess mileage argument is a bit of a grey area so going to court is a bit of a risk and obviously the amount alleged here is a high sum. So you can either defend it and have your turn in court and take that risk, or you can come to some arrangement to repay the amount.

There is no binding authority on this point so that's where the grey area comes into it and at a lower court level, judges could take different views. The key point to note is that you need to be well prepared, don't go into it half hearted otherwise your bound to lose from the start. You need to have every argument prepped and ready - I can help as far as I can with that but ultimately only you can make that decision.

[shane07]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

Hi Rob,
Please see attached.
Around £6,600 for excess mileage and £750 for service charges, I assume a missed service.
Vehicle was in excellent condition and I don't recall them marking any damages at all.

Because this is a brand new car and broke down 7 times and I recently paid MB £1750 for repairs, do you think I have a strong case?
Should I ring the solicitor and honestly explain my position to them? Or could they record it and use it against me somehow?
I haven't responded to their letter and I'm thinking if I explain the history of this vehicle they may realise I have a strong case and not proceed.

Thanks,

[R0b]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

My position as I've mentioned remains the same as what I've mentioned in the guide relating to excess mileage. The CCA spells out what is to be included and not included in terms of liability when you exercise your right to terminate under s.99 however, there is always a risk when you go to court and there is no guarantee that you will win. It depends on a number of factors such as what you argue in court and how well you come across.

I would suggest that it isn't wise to ignore their letters, so you should at least respond to the letter before action. Their letter is not compliant with the pre-action protocol and they can't get away with complying by simply saying MBFS have already provided you with the details. I would also argue that their letter in part is factually wrong when it comes to saying "you will find it difficult to obtain credit" and that the "judgment will be registered on your credit file". Strictly speaking you have one month from the judgment to pay up otherwise it will be recorded on as a CCJ - though these are technical points and wouldn't stop MBFS from issuing a claim against you.

Can you remember or not whether you regularly serviced the car? There are a number of arguments you could make such as:

1. The car was and has been serviced regularly (if you believe that it was).
2. It wasn't your obligation to service the car if it wasn't due at the time the car was handed over.
3. In any event, the cost of the service is a breach of the agreement which, according to section 100 excludes any charges (under the definition of 'total price') is specifically excluded for the purposes of calculating your liability.
4. If the argue that the missed service means the car was not returned in a reasonable condition, even if a car service was due a missed service alone does not in itself, mean the car was not returned in a reasonable condition. The condition of the car overall should be taken into consideration.
5. Finally, the charge of £750 for a service is on the high side and could be deemed excessive. Since your obligation is to take reasonable care, you should only have required it to have been serviced at a garage (which doesn't mean an approved dealership) so therefore an average cost for servicing the car should be taken into account - presumably that would be a lot less than £750.

I suspect if you go in explaining your honest issue your not going to get anywhere but that choice is entirely up to you.

Can you afford to make the payment they are asking for? If you can't and if you intended to defend, would you be able to save up such an amount within around 6 months so that if you lose you can pay it off straight away?
Your alternative is to accept the charges and ring Mortimer Clarke and come to an agreement to repay before they issue proceedings.

Otherwise if you are intent on defending it, then the starting point is to write a stern letter asking them to comply with the pre-action protocol which means setting out their claim properly, plus providing you with any evidence they intend to rely on at court. If they don't then you will reserve the right to draw the letter to the courts attention when it comes to a question of costs due to their failure to comply with the Civil Procedure Rules.

For that amount too, and if you feel out of your depth you might want to consul a lawyer on a fixed fee basis if possible to assist or get you going.

[shane07]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

Thank you very much.
I'm wary that there isn't enough time to respond to their letter by post now, perhaps I will write them an email.
Yes the car was regularly serviced and very well looked after.
When you say consult a lawyer on a fixed fee basis, do you mean for me to agree upfront what their whole charge would be regardless of how long it takes?
What sort of lawyer should I search for, a contract law specialist?

[R0b]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

You can still respond, you can ask them to delay issuing any claim on the basis that they haven't complied with the pre-actino protocols and so they should do so before issuing proceedings, courts tend to be a bit stricter on compliance issues now so they could be costs awarded against them for deliberately ignoring your request or not responding.

Did you get a damage report from MBFS? if not that is something you should be asking from Mortimer Clarke.

You will need to speak to a dispute resolution lawyer, some lawyers offer fixed fee for certain work carried out i.e. a Defence or response to their letter before action or to attend court, but you'll need to shop around really. Out of curiosity, where would your local court be if this did go to trial?

I am in the process of updating the guide to include some information about going to court if you receive a claim and perhaps sample defences but they are not a one-size fits all, just examples. Some people don't feel comfortable going to court whereas others are happy to give it a shot, so you need to decide pretty quickly what you want to do about it.

If you pay up now, you still owe the money, worst case in a court claim is that you still owe the money plus the cost of the application fees (about £750-£800 based on the above amount you mentioned) and up to £50 for solicitors fees for the claim form. As I said above, court cases do take some time and known to take up to 6 months or longer, so if you are able to save that amount or close to it within that period of time you have nothing to lose by going to court.

If on the other hand you can't afford it then you might need to consider if its worth going to court due and if you lose you could potentially end up with a CCJ (i.e. for mortgage applications etc.) if its not paid within one month of judgment. Equally, obtaining advice or assistance from a lawyer could also be a smart move too.

Either way, I am happy to help as much as I can but you have to decide whats best for you.

[shane07]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

Ok, I will send them an email. I assume that will be ok?
I didn't get a damage report from MBFS, I will request one from them too.
I live in Hendon, London so I think the nearest one is in Barnet, Finchley.
Do you know someone that you can recommend?

If you were in my situation would you go to court?
I understand that it is only your opinion and you are not liable for what you say, I just want to see your view on it.
Also, am I able to defend myself in court or can I take advantage of a free lawyer service that they have?
(Having said that I'm more likely to pay someone to represent me)

Thanks

[R0b]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

An email should be fine if there is one to contact. In terms of the contents of your email you should highlight some or all of the following:

1. Their letter is not compliant with the Practice Direction on Pre-action Conduct insofar as the Courts will expect parties to have exchanged sufficient information to understand the position. You can find this all here (particularly paragraph 3 and 6)-> https://www.justice.gov.uk/courts/pr...on_conduct#3.1

I'm afraid I don't know anyone down that way no, sorry. As for me if it were me there would be a chance I would defend it yes based on the reasons I mentioned above and also if I could afford to save such an amount at least I would have had my time in court. I also am familiar with the background to the CCA and its regulations so I am comfortable in explaining it, but ordinary consumers might not be so comfortable. If you argue it right, I can't see how a judge can agree that the excess mileage charges form part of the total liability when you terminate. Again, every judge is different and anyone who says you are guaranteed to win is lying because there's always that risk of going to court and potentially losing.

There is no free lawyer service that your able to take advantage of unless it is pro-bono basis. There are law centres out there and also universities have their own pro-bono scheme as well as some law firms. Worth a try but don't expect anything to come of it as there is usually limited funds and some only deal with specific types of issues.

Happy to look over your email if you post it up before you send it.

[shane07]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

Hi Rob,

Please see my draft email attached. Once again thank you so much.
Please feel free to delete bits you think are not relevant.
I will email and post this tomorrow.

Thanks

[R0b]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

Your letter is okay, but it doesn't really say that your looking to settle. It's saying you want to settle but if they issue a claim you will also defend it, not quite clear your looking to settle it.

You should set out that any settlement is not an admission of liability. If you really want to settle then I would suggest you pick up the phone tomorrow morning and speak to them, otherwise they may very well issue a claim against you and you've said your prepared to defend it so you should follow it through (though it doesn't stop you from looking to settle after a claim is issued but I think they will expect the full amount either way).

Personally, I think your explanation of the history of this is irrelevant, they are more than likely aware of this and probably don't care either. They are instructed to recover the money for their client and that's that. However if you want to say that then there is nothing wrong with doing so, but don't have the expectation of sympathy.

Other than that you should set out your points in full sentences and clearly too.

[shane07]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

I thought that if I tell them I'm open to settling straight away, they may try to take advantage.
So I wanted to show that I'm open to it going either way if they are not reasonable.
However, you're right. I will just give them a call tomorrow and then decide.
And I agree, I guess these corporate beasts would not have sympathy of my terrible experience with Mercedes.
If you could add anything else to strengthen the letter, it would be appreciated.
Thanks mate

[shane07]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

[MENTION=71570]R0b[/MENTION]

For starters I would like to gain some more time to think about this as I only have until Tuesday/Wednesday before the "14 days" finish.

Apart from mentioning that they didn't follow the pre action protocols, is there any other way I can ask them for more time?

[R0b]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

Simply asking them, say your considering looking at settling and you require more time to consider it (after your negotiations?)

[shane07]

Re: New PCP voluntary termination excess mileage charges - Solicitor stage

[MENTION=71570]R0b[/MENTION]
Ok I will try that.
Also I dug up the BCA report and there are no damages whatsoever.
The £7000+ is made up of excess mileage and they have charged me £750 for a missing service history!
Just because I got the service done elsewhere - unbelievable.

I'm going to try find a good solicitor. On a fixed fee basis, approximately how much should it cost do you know?
If I can find a competent solicitor, I think this should be a fairly straight forward case.