Another MBF VT thread

[Donverdi]

Hi there

I've read through a number of the threads around this, but had a few questions which I haven't already seen asked.

I have been going back and forth with MBF and more recently their legal advisers Mortimer Clarke solicitors (MCS) about excess mileage for approx £1,000 subsequent to VT'ing my Mercedes Benz CLS in March 2016. I've spoken and written to them (both parties) pointing out my statutory rights. I think I used a template letter from somewhere on this website, but I might be wrong... Anyway, it appears that we're both heading for the County Court to settle this as they are sticking to their guns. Interestingly the location of the case is planned for my home city in the north of England, not Northampton where MC Solicitors are based.

So, onto the questions:

• Does anybody know whether one of these claims has ever gone to the small claims court?
• If so, does anybody know which way the decision went?
• What's the likelihood of the representative from MCS just not turning up on the day? The cost of them attending the case will probably equal the amount owed
• If I lose, will I have to pay MCS's costs?
• If I lose and then immediately write the cheque for the amount in full as instructed by the courts, will this show as a CCJ against me on my credit file - even if I have paid the amount in full?
• If I want to settle in the days running up to the case, can this be done easily?
• Assuming MCS are playing brinkmanship and they're not going to follow through with the court case, how much notice (if any?) do they have to give me that they're dropping the case?
• Finally, and I appreciate this is a judgement call for me to make and will depend on the responses to the above questions, should I simply get in touch with MBF and make them an offer?

Many thanks in advance for any thoughts on this and apologies if these questions have been asked before. I have read endless threads on the internet about this and haven't seen these questions specifically!

Thanks

[R0b]

Re: Another MBF VT thread

Hello @Donverdi, to answer your questions in order

1. No I am not aware of any or any being successful but county court decisions are not binding and one court might find in favour whereas another may not.

2. As above

3. They are probably likely to turn up to act on behalf of MBFS or instruct a junior barrister

4. No, it's small claims so costs are limited you will be liable for solicitor issue fee (I believe) up to £100 and any witnesses who may be travelling - costs though are generally minimal usually less than 100.

5. If you pay within one month of judgment there will be no CCJ recorded - make sure to get confirmation and/or transfer by bank transfer as you can then prove it.

6. You can make an offer of settlement anytime you wish, always do so without any admission of liability.

7. They will serve you a discontinue notice and could be up to the day of trial, though you can make an application if you want to set the discontinuance aside and have the court hear the case, or at least ask the court to consider costs for late filing of it and you incurring costs unnecessarily.

8. If they are instructed by MCS you get in touch with them either by letter or in many instances email is fine. Make sure to mark it 'without prejudice' or 'without prejudice save as to costs', the former meaning the parties cannot refer the court to the document whereas the latter means the document can be referred to after judgment has been given and it comes to assessing costs and unreasonableness.

Now, I do have a few questions of my own.

1. Has MCS issued a claim?
2. Have you filed a defence?

As with any court case, you need to plead your claim/defence properly and if its not pleaded, you can't argue it in court - which is where it's crucial to be referencing the relevant things and/or pointing out to the court it's not pleaded.

I would be interested to see the claim form/defence or any correspondence from MCS regarding your issue, of course your personal info redacted.

[Donverdi]

Re: Another MBF VT thread

Hi there - great. Thanks for your response. Happy to provide you the info, so will collate various docs into a single PDF if you like. Would prefer to not to make publically available though so happy to PM you if you're willing. Perfectly happy to continue the general discussion on the forum though in order that others might the info of help.

[R0b]

Re: Another MBF VT thread

That would be great yes, though I won't give any assistance through PM, only on the public threads

I'm not sure what correspondence you do have but certainly would like to see the claim form and your defence, though not every single piece

[R0b]

Re: Another MBF VT thread

@Donverdi

First of all you didn't do yourself any favours with signing MBFS' VT document which as I am sure you will have read, it says you are liable for any damages and excess mileage etc. Though it shouldn't be too difficult to overcome but you will probably have to give an explanation to the judge about it.

Are they claiming excess mileage only? Their particulars of claim doesn't point this out or determine how they have calculated it, but I am assuming its based on the contractual mileage clause.

Since you have only written the defence on the form rather than set it out properly, I would suggest that you also prepare a skeleton argument. As the name suggests its a bare bones argument for the court to read in advance and understand your position and arguments. A well prepared and succint argument can certainly sway a judge when making a decision and/or in some instances, force the claimant to drop their case - though it should not be used as a replacement for your arguments in the court on the day but simply a bare bones argument. Skeletons can be submitted 3 clear days before trial. Do not underestimate how long a skeleton argument can take and the amount of revisions you might do. If put forward a sloppy skeleton, that will have an impact on how the judge may view you.

Anyway, some things you may want to include in your arguments at court but are of course only my views and is only guidance as to what could help your case:

1. There is an express provision in your clause under "Termination: Your rights" and it is clear that it says provided you have paid X and taken care of the car you will pay nothing more. When interpreting contracts, the starting point for the court is to look at their ordinary and natural meaning. Provided you pay the 50% and return the car in reasonable condition that is the end of your liability - there is no mention of excess mileage and so it cannot be claimed back. Alternatively the argument is that the clause conflicts with another termination clause which says that you do owe excess mileage. Given the ambiguity, the court should apply the contra proferentum rule (google it) and therefore excess mileage cannot be claimed.

2. "Termination: Your Rights" clause also gives effect to the implied term that your liability is capped under s.100 CCA 1974. S.3(1) of the Consumer Contracts (Agreements) Regulations requires lenders to include information set out in Schedule 1, in particular paragraph 30 of the Schedule states that lenders must specify in HP/Conditional sale agreements how a debtor can terminate, and the debtor's maximum liability under s.100.

S.3(4) of the same Act also obliges lenders to include specific statements for protection and remedies available to the debtor and in paragraph 9 of Schedule 2, you can see the same statement "Termination: Your Rights" effectively capping the debtor's liability.

3. S.100 requires close inspection to fully appreciate the liability but it does in effect cap a debtor's liability to 50% of the total price payable (see Chitty On Contracts) and any sums of the total price that are due immediately before termination. Total price is explained in the definitions under s.189 as the total sum payable under a HP or conditional sale agreement, but excludes any damages for breaching the terms or penalties or compensation. In Julian Hodge case, the Court of appeal was asked to determine whether any charges for late payments or charges for letters sent out could be included in the definition 'total price'. The Court held that they could not because they were excluded as being breaches for terms of the agreement and/or compensation or penalties.

The same principle applies to your case, excess mileage charges are damages for breaching the agreement but arguably fall into the compensation category and as such they are excluded for the purposes of s.100. The only sums that can be claimed immediately before termination is the monthly instalment arrears.

4. If they try and argue that the car was not in a reasonable condition:

- You should immediately speak up and say that the court should not hear such arguments as the claimant's claim is effectively breach of excess mileage contract and is now trying to introduce new arguments which were not pleaded in their particulars of claim.

- In the event the judge allows to hear the arguments, then you may want to argue as part of your defence that the claimant has provided absolutely no evidence at all which shows that the car was not mechanically sound at the time it was returned. The value of the car is not evidence of the car's condition and it is up to the claimant to provide evidence of how the car was at the time and how far you have defaulted under it - you should refer to Brady v St Margaret's Trust as per Lord Denning. The debtor is only required to maintain the car as any reasonable person would do so, and provide an example e.g. have the car repaired, MOT, serviced etc. all of which you have done whilst in your possession which is all that is required of you. Equally, the claimant is making a statement which is normally reserved for an expert, again something they haven;t provided and in any event (assuming you have a copy of the condition report) the condition report provided by the lender does not make any reference to the car's mechanical condition and in that respect, it can only be assumed that it was in a reasonable condition.

5. MFBS may argue that you signed their termination document and so you agreed to pay the excess mileage. Your response to that is simply refer to s.173 of the CCA and says that lenders cannot contract out of the CCA or impose additional liability direct or indirect and if so, it is void. Statute law defeats any agreement between the parties if there is a conflict and so MFBS can't rely on that document as evidence that it is owed.


On a side note, have you checked your credit report to see if MFBS has recorded a default on your credit file? Again the above is simply some suggestions that you could make as to your defence, and a skeleton argument would help to assist the judge with going back and forth between the various provisions of the CCA.

[Donverdi]

Re: Another MBF VT thread

Rob - Thanks very much for all this information which I will have to digest! Re the return document, yes, not a great move but I think I'd have struggled to get them to collect the car without it being signed. We shall see!

[R0b]

Re: Another MBF VT thread

If you felt pressured into signing the document because they wouldn't collect the car that is something you can add as a valid defence point.

Have you been given a date for the trial?

Skeletons need to be set out in a particular way, and should ideally be filed at court and served on the other side. If you don't know how to set it out or what to say let me know and i'll give you some pointers.

[Donverdi]

Re: Another MBF VT thread

No date for trial yet and yes, if you can point me in the direction of the skeleton, that would be great.

Also, nothing on my credit file either. I use Experian and check it quite a bit.

[Donverdi]

Re: Another MBF VT thread

Hi again - okay, this has moved on a step. I've received a date for the hearing which is August, however it has been suggested this case is suitable for mediation which I have agreed to. I'll see how this goes, but presumably if we don't come to an agreement we'll proceed to the hearing in August?

[R0b]

Re: Another MBF VT thread

Hi again - okay, this has moved on a step. I've received a date for the hearing which is August, however it has been suggested this case is suitable for mediation which I have agreed to. I'll see how this goes, but presumably if we don't come to an agreement we'll proceed to the hearing in August?

Hi Don,
Yes it will proceed to a hearing, plenty of time to get everything ready and make sure your prepared, the earlier the better!

I will upload a sample skeleton agrument template for you to work on if you still want that, which I would recommend even if it is brief

[Donverdi]

Re: Another MBF VT thread

Hi Rob - thanks for your suggestion. That would be very helpful!

[Donverdi]

Re: Another MBF VT thread

Hello again - Just a quick update about this claim. I underwent the mediation process a few weeks ago and offered approximately 50%of the value of the claim. They were only willing to budge by about £150, so unfortunately things were not resolved. Hey-ho.

Anyway, the next deadline for me now is mid July when I have to pay £115 the court trial fee (4 weeks in advance of the hearing). Helpfully the chap who orignally sold me the car has offered to act as a witness on the day. I'll not turn this offer down if it is likely to be helpful to my cause.

So, my next step is to draft the skeleton argument and provide the witness statement in the next few weeks and then await the hearing!

[R0b]

Re: Another MBF VT thread

I assume when filling out the allocation questionnaire you only put yourself down as a witness? Any help is always going to assist you so I would suggest you get him to draft a witness statement and have him sign it in case he changes his mind. The more witnesses you have the more credible your story is going to be? Is he willing to attend court or just provide a written statement?

Do you mean that MBFS have to pay the trial fee of £115? or are you bringing a counterclaim?

Also, did MBFS provide you with a damage report, and if so what did it say in there? Have you considered submitting a SAR so that you can get access to it? and any other notes they have on you

[Donverdi]

Re: Another MBF VT thread

You are exactly right. I didn't read the sentence properly. The CLAIMANT has until 4pm on 17th July to pay the court trial fee or file a properly completed application.

Re witness - yes, he has offered to attend but we'll need a witness statement in any event. In terms of the allocation questionnaire, yes I put myself as the only witness. It's not too late to change this I hope?

Re - damage report. No, I've neither asked for one or seen one. What is a SAR?

[R0b]

Re: Another MBF VT thread

That's good, there's no harm in drafting it now so and getting it signed asap so you can present it to the court. There shouldn't be an issue with the witness but I would notify the court and also notify the other side. Keep it brief and say to them you intend on bringing an additional witness in support of your defence and witness statements will be exchanged in accordance with the Court's orders - I would not engage with them as to who it is or give any information away at this stage as you don't want to scupper your chances.

A SAR is a subject access request - they usually obtain a damage report so it would be useful to know whats contained within it - examples of letters can be found here http://legalbeagles.info/forums/show...access+request