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Excess Mileage Default - Claim to remove marker

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  • #16
    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
    Last edited by R0b; 5th February 2017, 17:15:PM.
    If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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    LEGAL DISCLAIMER
    Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

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    • #17
      Re: Excess Mileage Default - Claim to remove marker

      Hi

      I received a letter in the post from BMW today.Click image for larger version

Name:	bmw stuff 1.jpg
Views:	1
Size:	26.1 KB
ID:	1173415

      BMW don't seem interested in claim the money for the excess mileage. even on page 2 , it states - this is not a demand for payment.

      also, i may have mentioned this before but year 1 into my contract, BMWFS sent me a cheque for £1066 and the letter said 'overpayment on interest' . i don't have the letter anymore , so cannot be precise on the language. when I raised it with BMWFS and asked if i was entitled to any more compensation , they denied the existence of the cheque but i have a photo of it!!

      I agree going to court presents a risk. I believe its worth taking a risk , so what is the next steps ?

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      • #18
        Re: Excess Mileage Default - Claim to remove marker

        Sorry, I am not sure what you mean about the cheque and the letter your referring to. Does it have relevance to your issue at hand?

        As for the next steps, you will need to draft your particulars of claim, presumably you will want to do this online as its the cheapest option. However, you won't be able to fit all of the claim in the small box online so you can write one out in full and then serve it on BMW by post - I can guide you on how to do that when you get to that stage.

        Have you had a think about how much you are wanting to seek in terms of damages and anything else you want out of the claim? Once you have this information you can begin to write your claim.
        If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
        - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
        LEGAL DISCLAIMER
        Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

        Comment


        • #19
          Re: Excess Mileage Default - Claim to remove marker

          I notice a number of these threads just come to a halt. Is this because people are having success and not reporting back, having no success or is it BMW silencing those who are successful? I'm yet to find a single case that relates to this, where it goes the distance either way.

          Comment


          • #20
            Re: Excess Mileage Default - Claim to remove marker

            Any updates?

            Comment

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