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My experience taking Tesla to court about FSD
- Thread starter edb49
- Start date
Nor is it an option now in the UK. But let's not let that stop any apologists wandering in and giving their two penneth as they say.
Agreed, and let's not feed the troll!Nor is it an option now in the UK. But let's not let that stop any apologists wandering in and giving their two penneth as they say.
MrBadger
Badger out
I think you will find that subscription is not an option here in UK, nor was it at time that OP purchased and neither was EAP.
But let’s not let an irrelevant fact get in the way of putting the blame on someone else.
LawLiner
Member
Speaking with the finance company on this matter, they confirmed they would not be liable for this issue as their liability begins from the point of sale in relation to any issues with the vehicle that were present at the time.
As there were no actual faults with the vehicle, and the issue is in relation to an "optional extra", they do not believe they are liable. They also stated delivery of the optional extra FSD was covered by the disclaimer on the Tesla website at the time:
The consumer rights act seems to disagree:
The Financial Ombudsman service also seems to disagree:
Not sure what to make of this, to be honest. Thoughts?
As there were no actual faults with the vehicle, and the issue is in relation to an "optional extra", they do not believe they are liable. They also stated delivery of the optional extra FSD was covered by the disclaimer on the Tesla website at the time:
The consumer rights act seems to disagree:
The Financial Ombudsman service also seems to disagree:
Not sure what to make of this, to be honest. Thoughts?
If you paid for FSD as part of the full price of the car the finance company are involved just as if they didn't provide any other feature bought at the time... they're just trying to wriggle out of it, the same way Tesla are.
Hence if you take it to court, name them in the documents along with Tesla and let the court system apportion liability (if doing anything beyond small claims of course ask a solicitor first, maybe do so even for small clams).
Hence if you take it to court, name them in the documents along with Tesla and let the court system apportion liability (if doing anything beyond small claims of course ask a solicitor first, maybe do so even for small clams).
This is an understandable response from the finance company, but it's not correct. Remember, the finance company cannot make you sign away your statutory rights. Normally if there is a fault with a car they've financed, they'd expect the manufacturer to fix under warranty. So normally nothing for them to get involved in.
However, let me play out a different situation. Let's say you bought one of those BMWs where the heated seats are software activated, and you purchased it through a finance company. At the time of sale, BMW said they would deliver the software update to unlock the heated seats in 3 months, and you paid extra for the heated seats.
It would be completely nutty to think that you were paying for heated seats and were never going to get them, and you had no legal claim. You can't claim against BMW because your contract is with the finance company. So you have a claim against the finance company. The Consumer Rights Act gives incredibly strong protections and your claim is essentially the same as mine, but with a different defendant.
I've seen some updated documents from Taylor Wessing, so their litigation strategy is becoming clearer.
One of the things they're trying to tie people up in is Requests for Further Information under Part 18 of the CPR. In the documentation I've seen, they're asking for information voluntarily and say if they don't get it they'll make an application to the court. This is probably all quite worrying if you're not familiar with these processes.
If I was in the action, I would simply fight fire with fire. I don't think Part 18 requests are appropriate, but if they make one then I would make one back. The information I would be seeking would be related to their defence. I would specifically open up this quotation which they're using in their defence:
"The activation and use of these features are dependent on achieving reliability far in excess of human drivers as demonstrated by billions of miles of experience, as well as regulatory approval, which may take longer in some jurisdictions."
What questions would be helpful? Quite a few:
- When did Tesla have the capability to deliver the features promised (city driving, stop signs, traffic lights) regardless of regulatory approval
- What was Tesla's knowledge of the regulatory framework in the UK at the time of order and whether the FSD features (city driving, stop signs, traffic lights) would be permissible within that framework
- What did they mean by "reliability"
- What did they mean by "far in excess"
- How many miles of experience had Tesla logged at the time of the order, 31/12/2019 and each anniversary of that date
- What is the level of reliability demonstrated in 2019, 2020, 2021, 2022 and 2023 calendar years
I think these are all reasonable requests for information. However, I would not expect Tesla to want to answer them. So if Tesla make a Part 18 request, you have one that you're making at the same time - if Tesla apply to the court for this, you apply to. Most likely both would be in the same hearing, and it's tough to see why the judge wouldn't order Tesla to disclose this information.
One of the things they're trying to tie people up in is Requests for Further Information under Part 18 of the CPR. In the documentation I've seen, they're asking for information voluntarily and say if they don't get it they'll make an application to the court. This is probably all quite worrying if you're not familiar with these processes.
If I was in the action, I would simply fight fire with fire. I don't think Part 18 requests are appropriate, but if they make one then I would make one back. The information I would be seeking would be related to their defence. I would specifically open up this quotation which they're using in their defence:
"The activation and use of these features are dependent on achieving reliability far in excess of human drivers as demonstrated by billions of miles of experience, as well as regulatory approval, which may take longer in some jurisdictions."
What questions would be helpful? Quite a few:
- When did Tesla have the capability to deliver the features promised (city driving, stop signs, traffic lights) regardless of regulatory approval
- What was Tesla's knowledge of the regulatory framework in the UK at the time of order and whether the FSD features (city driving, stop signs, traffic lights) would be permissible within that framework
- What did they mean by "reliability"
- What did they mean by "far in excess"
- How many miles of experience had Tesla logged at the time of the order, 31/12/2019 and each anniversary of that date
- What is the level of reliability demonstrated in 2019, 2020, 2021, 2022 and 2023 calendar years
I think these are all reasonable requests for information. However, I would not expect Tesla to want to answer them. So if Tesla make a Part 18 request, you have one that you're making at the same time - if Tesla apply to the court for this, you apply to. Most likely both would be in the same hearing, and it's tough to see why the judge wouldn't order Tesla to disclose this information.
ACarneiro
Active Member
You're being so helpful that I'm expecting some goons to turn up at your doorstep any day now...
Here is a draft Part 18 RFI to send off to Tesla. Update/amend as relevant to your case. (See attached)
I suspect the Part 18 will go nowhere, it's an unusual procedure to use in a claim of this value and I suspect most county court judges would prefer just to have a hearing and get the thing over and done with.
However, when I drafted this RFI I did uncover something pretty important. (Note to Taylor Wessing and Tesla: The more you fight, the more people will dig into the details and I don't think that will end well for you.) Tesla are relying on the small font disclaimer which is follows:
I think this is almost certainly an "unfair term" and therefore not enforceable because of the The Unfair Terms in Consumer Contracts Regulations 1999. Specifically, it is significantly to the detriment of the consumer because Tesla has a huge advantage in their knowledge of the regulatory framework, reliability, and experience being gained. The consumer is unable to form a view on these points.
But, there is a second far more fatal issue with the disclaimer which is that I think it wasn't visible on a standard browser in the order process. I'm on a 1440p display on Windows 11 with Chrome and standard settings and don't see it. I also changed to 1080p and didn't see it, what do other people see?
You can do a check here: Design Your Model 3 | Tesla
In the attached screen grab, the disclaimer is where I'm pointing with the red arrow, but you can go to the next stage of the order process without seeing it. This is quite important, because people generally don't scroll through pages of disclaimers - hence the thing they're relying on is hidden.
I suspect the Part 18 will go nowhere, it's an unusual procedure to use in a claim of this value and I suspect most county court judges would prefer just to have a hearing and get the thing over and done with.
However, when I drafted this RFI I did uncover something pretty important. (Note to Taylor Wessing and Tesla: The more you fight, the more people will dig into the details and I don't think that will end well for you.) Tesla are relying on the small font disclaimer which is follows:
I think this is almost certainly an "unfair term" and therefore not enforceable because of the The Unfair Terms in Consumer Contracts Regulations 1999. Specifically, it is significantly to the detriment of the consumer because Tesla has a huge advantage in their knowledge of the regulatory framework, reliability, and experience being gained. The consumer is unable to form a view on these points.
But, there is a second far more fatal issue with the disclaimer which is that I think it wasn't visible on a standard browser in the order process. I'm on a 1440p display on Windows 11 with Chrome and standard settings and don't see it. I also changed to 1080p and didn't see it, what do other people see?
You can do a check here: Design Your Model 3 | Tesla
In the attached screen grab, the disclaimer is where I'm pointing with the red arrow, but you can go to the next stage of the order process without seeing it. This is quite important, because people generally don't scroll through pages of disclaimers - hence the thing they're relying on is hidden.
Attachments
So just expanding on this a bit... if I was preparing for a hearing I would:
Draft arguments:
1. The disclaimer is an unfair term for reasons I set out above.
2. If the disclaimer wasn't an unfair term, it is contradictory with the description. e.g. It's under Tesla's control how much "driving experience" the system gets, and it's also under their control how reliable the system is. So as a consumer, you would assume they've taken these things into consideration when saying the feature will be delivered by end of 2020.
3. Clearly it's not legislation that has prevented delivery of the traffic light/stop sign & city street driving features by end of 2020 because:
a) The traffic light/stop sign feature was late
b) They didn't delivery city street in any jurisdiction until X date (need to check)
Then in the witness statement, presuming you don't remember the disclaimer:
1) You don't remember the disclaimer
2) The order process can be completed without seeing the disclaimer, e.g. you have to specifically scroll down to view it (attach a screenshot to demonstrate this as an annexe to witness statement)
3) Evidence to confirm (3) above, e.g. a news articles on when FSD was first delivered
My feeling is that's more than enough to bat away the disclaimer.
Draft arguments:
1. The disclaimer is an unfair term for reasons I set out above.
2. If the disclaimer wasn't an unfair term, it is contradictory with the description. e.g. It's under Tesla's control how much "driving experience" the system gets, and it's also under their control how reliable the system is. So as a consumer, you would assume they've taken these things into consideration when saying the feature will be delivered by end of 2020.
3. Clearly it's not legislation that has prevented delivery of the traffic light/stop sign & city street driving features by end of 2020 because:
a) The traffic light/stop sign feature was late
b) They didn't delivery city street in any jurisdiction until X date (need to check)
Then in the witness statement, presuming you don't remember the disclaimer:
1) You don't remember the disclaimer
2) The order process can be completed without seeing the disclaimer, e.g. you have to specifically scroll down to view it (attach a screenshot to demonstrate this as an annexe to witness statement)
3) Evidence to confirm (3) above, e.g. a news articles on when FSD was first delivered
My feeling is that's more than enough to bat away the disclaimer.
Final thought whilst I'm on this... having quite a few people get in touch with me about this and seeing how they're going about it, I think some of them will not be successful in their claims against Tesla. I've formed this view because they're not really following the great treasure trove of information on this thread. I've encouraged people to participate in this thread to ask questions, get advice, etc., but some people don't seem to be doing that and/or using the information in this thread. (One example is someone hasn't filed the detailed particulars of claim.)
It would probably be useful for someone to summarise this thread will the various stages, pertinent information, etc., because it's spread over 27 pages so far... but that person isn't me.
It would probably be useful for someone to summarise this thread will the various stages, pertinent information, etc., because it's spread over 27 pages so far... but that person isn't me.
You're really very brilliant with the help you've provided.
I would say based on conversations I've already had with you, and your comments in this thread, that you are perhaps underestimating your own capabilities when it comes to formulating this stuff. Most people, myself included, don't have the level of attacking insight that you've demonstrated here. I've gone through small claims once before so I know the process, but the CPR Part 18 stuff would have been a surprise to me.
I can imagine there are people wanting to file claims who are teetering on the edge of either not bothering because they think its too complicated and/or are going to bail at the first sign of resistence they don't understand. Obviously Tesla and their solicitors are relying on this, as adversaries always do in legal action. Portentous-but-not-really requests are tricks of the trade.
Anyway, really pleased you're still dipping in to this, it is greatly appreciated.
I would say based on conversations I've already had with you, and your comments in this thread, that you are perhaps underestimating your own capabilities when it comes to formulating this stuff. Most people, myself included, don't have the level of attacking insight that you've demonstrated here. I've gone through small claims once before so I know the process, but the CPR Part 18 stuff would have been a surprise to me.
I can imagine there are people wanting to file claims who are teetering on the edge of either not bothering because they think its too complicated and/or are going to bail at the first sign of resistence they don't understand. Obviously Tesla and their solicitors are relying on this, as adversaries always do in legal action. Portentous-but-not-really requests are tricks of the trade.
Anyway, really pleased you're still dipping in to this, it is greatly appreciated.
It's also perhaps noteworthy that this disclaimer does not need any positive interaction to agree or disagree with, it's just there and as you said based on your browser size, eyesight, etc one might not have even seen it.
it is certainly not important enough for them to have decided to have a opt-in checkbox to ensure agreement, as you see now on much less onerous things like newsletter or SMS signups.
speedyranger74
Member
on 22th January I received the response from Tesla's Defendant, but almost one week after on the the money claim site looks like they didn't responded, which is not true.
3 days after (25th January), Online Civil Money Claims send me the email where confirm the
The defendant has filed their defence, and I have to complete "the attached Directions Questionnaire, form N180, before 16h00 on dd/mm/yyyy".
Very strange, no date.
In the questionnaire ask if I want to agree to this case being referred to the Small Claims Mediation Service, but Tesla denied.
3 days after (25th January), Online Civil Money Claims send me the email where confirm the
The defendant has filed their defence, and I have to complete "the attached Directions Questionnaire, form N180, before 16h00 on dd/mm/yyyy".
Very strange, no date.
In the questionnaire ask if I want to agree to this case being referred to the Small Claims Mediation Service, but Tesla denied.
Attachments
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Got an email reply yesterday evening from Tesla, the deadline I gave them on the LBA was today.
Everything as expected, a complete and exhaustive denial of everything I had said, and a request that if I proceed that I correspond via email with Taylor Wessing.
The thrust of their rebuttal is broadly what @edb49 faced - that the Online Manual and Motor Vehicle Order Agreement supercede anything they might say or promise anywhere else, and gives them immutable free pass to promise the Earth and deliver nothing, without consequences.
Amusingly they said "For the avoidance of doubt, Tesla does not accept that it promised to deliver any functionality within a specific time period." which is an rather silly thing to say given what I told them I saw on their website at point of order, and have proof of. Apparently "Coming later this year" is a vague promise?
Needless to say - I disagree with what they've said. Presumably I simply need to forward my full Particulars of Claim to them after filing an online claim?
Everything as expected, a complete and exhaustive denial of everything I had said, and a request that if I proceed that I correspond via email with Taylor Wessing.
The thrust of their rebuttal is broadly what @edb49 faced - that the Online Manual and Motor Vehicle Order Agreement supercede anything they might say or promise anywhere else, and gives them immutable free pass to promise the Earth and deliver nothing, without consequences.
Amusingly they said "For the avoidance of doubt, Tesla does not accept that it promised to deliver any functionality within a specific time period." which is an rather silly thing to say given what I told them I saw on their website at point of order, and have proof of. Apparently "Coming later this year" is a vague promise?
Needless to say - I disagree with what they've said. Presumably I simply need to forward my full Particulars of Claim to them after filing an online claim?
Yes, you can file the online claim with a brief description. Then separately send the full PoC to them with an N215. The N215 should be emailed to the court too. Pretty sure back in this thread I put up an example of a completed N215. (Albeit you may want to serve on Taylor Wessing rather than Tesla.)
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