CONSUMER RIGHTS. How do I reject a duff car or get compensation for problems with a car I have bought from a dealer?
26-2-2015: This first section attempts to simplify and clarify the various pieces of legislation and case law that protect you when you buy a new car.
The more complicated nitty gritty concerning both new and used cars follows.
WHAT CAN YOU DO IF YOUR BRAND NEW CAR DEVELOPS MAJOR FAULTS?
Your rights are against the supplier, which is the dealer and the finance company jointly if you bought it on finance.
Not against the manufacturer.
The new Consumer Rights Act enacted in October 2015 theoretically gives you the statutory right to reject a new or used car (or anything else) within 30 days of purchase if any fault is found. However, this has still be be verified in the courts. Additionally, a reputable new or used car dealer may have signed up to 'Alternative Dispute Resolution' (arbitration) under an Industry Code of Practice for Vehicle Sales run by the SMMT. This used to be called Motor Codes but has now been re-named The Motor Ombudsman.
The Vehicle Sales Code covers transparent wording of adverts and pricing, clear and transparent invoicing, and the sale of a used car which is supported by a vehicle provenance check to ensure that it has not been stolen, written-off and is free of any outstanding finance payments. It also highlights that retailers should provide test drives, avoid high-pressure selling techniques, supply accurate advice on warranty and finance products, and deliver a vehicle with a full handover, complete with all historic documentation, the entire service history and a valid MOT certificate.
Furthermore, subscribers pledge to resolve any problems quickly and cost effectively should a dispute arise in relation to the sales process. As a last resort, retailers are able to refer a customer to Motor Codes, a CTSI-certified ADR provider, for adjudication prior to the awarding of a final decision.
So the first bit of advice is to try to settle the matter without getting legal. Once a dealer knows you know your legal rights he’s more likely to settle, as long as you are being reasonable.
If the car is on finance you can take the matter up with the finance company. Even if you only paid part of the cost on finance (as little as £100 on a credit card for a £30,000 car), Section 75 of the 1974 Consumer Credit Act gives you rights against the finance company.
Write to both the dealer principal and to the finance company and send your letter by Post Office Special Delivery so you get receipts for them and your letters become 'matters of record' which can't be denied.
Involve The Motor Ombudsman the SMMT's arbitration service.
Remember, "County Court is a last resort." If the dealer and finance company refuse to accept your rejection of the car, you can't continue to use it while taking County Court action against them and that could mean your car sitting on your driveway unused for months on end while you have to get buses and taxis everywhere.
Finally, except under the new Consumer Rights Act 2015, you can’t successfully reject a car for a trivial reason such as a little scratch or finding out you don’t like something about the car, unless, for example, you bought it for a specific purpose, for example to tow a caravan and then you find out it can’t.
WHAT CAN YOU DO IF YOU DON’T GET WHAT YOU ORDERED?
Maybe they missed off satnav or some other essential you specifically ordered, such as fittings for a luggage rack or a sunroof or central locking. Or you needed a towhook and the car can’t be fitted with one.
If you specifically order something and don’t get it, then you simply refuse to accept the car.
But if the manufacturer changed the spec, the dealer has no control over that and he may try to push you to accept the car.
There is some case law on this from 25 years ago during the supercar boom. A bloke ordered an Aston Martin, paid a big deposit, then when they finally built the car its shape had changed. He lost his case. Other people ordered V12 Jaguar XJ220s and when they came with turbo V6 engines instead they rejected them and their rejection was upheld. So this is a slightly grey area.
WHEN CAN YOU REJECT A NEW CAR?
A lot of people think they have statutory rights under acts such as the various Sale of Goods Acts.
But what is important is the interpretation of these Acts in courts of law. And the higher the court, the more important the ruling.
It goes County Court, High Court, Court of Appeal and what used to be House of Lords Appeal, but is now The Supreme Court.
Everything depends on the circumstances and the interpretation.
If it’s a minor fault, UNDER BERNSTEIN v PALMERSTON MOTORS 1987, the dealer got 3 chances to fix the car before it could be rejected and under ROGERS v PARRISH the same year it was ruled that there was a limit of 6 months to reject a car.
Then in 2003 that was overridden by the House of Lords ruling in CLEGG v OLLE ANDERSSON (TRADING AS NORDIC MARINE) where the Law Lords ruled that a yacht could be rejected more than 6 months from date of purchase because it had been delivered with a fundamental fault that could not easily be rectified.
In this case it was a yacht with the wrong keel, but the same could apply if a performance car turned out to have a dodgy engine, or if the car hadn’t been properly rustproofed, or if it had been misbuilt with the steering wheel on the wrong side.
Also in 2003 we got an updated Sale of Goods Act that said that if something failed within 6 months of purchase it was assumed it must have been faulty or developing a fault from the start, but if it failed more than 6 months from purchase the purchaser had to prove it had been faulty from the start. So that’s when Clegg supercedes the Bernstein and Rogers cases.
Clegg is being used a lot because it is a House of Lords ruling and overrules the Bernstein and Rogers Appeal Court cases. That doesn’t stop you using all of them, but if the car goes wrong after 6 months you need Clegg.
A new law called the Consumer Rights Act 2015 came into effect on 1st October 2015, giving car buyers the right to reject a faulty car within 30 days and ask for a full refund.
This differs from the previous protection afforded to consumers under the Sale of Goods Act, which the Consumer Righrs Act replaces.
The Consumer Rights Act 2015 covers all goods but is of particular interest to carbuyers, given the significant cost of purchasing a car and the subsequent impact if things go wrong.
A clause in the law known as "early right to reject" specifies that any fault found within 30 days of buying a product entitles the buyer to a full refund. After that period, but within six months, the seller or manufacturer has one opportunity to replace or repair. If that fails, the customer is then entitled to a full or part-refund.
The specifics of the new law are designed to make it clearer for both sellers and buyers, according to the Citizen’s Advice Bureau, as well as handing more rights to the consumer. Practical examples and a more detailed explanation of the new law can be found at the Citizen’s Advice website, by clicking here.
In more extreme cases, the new Act also gives buyers the chance to settle disputes with a seller more quickly and cost effectively, using an Ombudsman rather than going through the courts. This is known as Alternative Dispute Resolution.
WHAT ARE THE RESPONSIBILITIES OF THE DEALERSHIP / MANUFACTURER / FINANCE COMPANY?
They can’t lie to you and they can’t avoid telling you that a car has been damaged and repaired, for example, or that you won’t be the first registered owner. That’s a new offence of a misleading omission under the 2006 Consumer Protection Regulations.
A new car could have been damaged on the production line and rectified at the end, but the paint might not quite match. Or it could have been damaged on the transporter and fixed at the dealership. Before, they didn’t have to tell you. Now they do.
Some car brokers get big discounts on cars by pretending to the manufacturer that they are fleet purchases, so the manufacturer insists the car is first registered to a fleet. You can buy one of these cars and take it home, but you won’t get the registration document for maybe 6 months and when you do you find you’re the second owner. They have to tell you that you’ll be the 2nd owner. They can’t fob you off with excuses.
Also if you’re buying a nearly new car, half the cars sold at under a year old are ex-rental. You could argue they have to tell you, and they certainly can’t lie that it’s an ‘ex-management car’. But ex-rental isn’t actually a bad thing except to people’s prejudices. Hirers can’t get away with damaging rental cars any more so they try not to.
Under Section 75 of the Consumer Credit Acts of 1974 and 2006, if you buy on a loan or a PCP or a lease, the finance house or the leasing company and the dealer are jointly liable if the car turns out to be faulty. This proved to be a useful last resort for a reader who bought a used Skoda Yeti 1.2DSG from a franchised Skoda dealer. A few weeks into ownership, the car lost drive miles away from the franchised dealer and a local specialist diagnosed a failed Dual Mass Flywheel. This was replaced at a cost of £1,600, but the supplying dealer refused to meet the cost because the work had been carried out by a non franchised dealer. But because the deposit for the car had been paid by credit card the reader was able to go to the credit cared company and managed to obtain a full refund without having to take the matter to court.
WHAT IS THE VALUE OF A WARRANTY ON A NEW CAR?
There’s an EU ruling called ‘Block Exemption’ that a manufacturer can’t void a standard 3 year warranty if you get the car serviced by a non franchised dealer. But he can demand you show evidence that it was done to manufacturer standards with the right parts.
So the easiest way is to get the car serviced by a franchise. And that can really pay off if the car develops a fault out of warranty because you’ll probably get some goodwill, which is really the manufacturer backing the dealer to conform to the Limitations Act, 1980, that sets out 6 years as the usual period in which actions for breach of contract, etc. must be brought (extensions for certain other claims and fraud).
But if you’ve had the car serviced by Tom, Dick or Harry the manufacturer can claim that the fault was caused by them.
If the car is on a long warranty, 5 year or more, then that is a probably a contract between you and the manufacturer that you get it serviced by his franchises and in return he warrants the car.
There’s a bit of latitude, but you always stand a much better chance against a manufacturer if you have always had the car serviced by his dealers.
And in these disputes, you legally have to start with the dealer who supplied the car in the first place, though a dealer who has been regularly servicing it will probably help.
WHAT CAN YOU DO IF YOUR NEW CAR OR YOUR RECENTLY PURCHASED USED CAR DEVELOPS MAJOR FAULTS?
The FAQ now gets into the much more complex aspects of the various pieces of legislation and case law.
While this gives you your legal rights based on statutory regulations and case law, it's obviously always best to attempt to negotiate first.
A dealer might try to use a lot of flannel to try to wriggle out of a claim, but as soon as you start asserting your rights by quoting the appropriate case law, in particular Clegg v Olle Andersson, he may capitulate.
The limit for claims in the Small Claims Track of the County Court was raised from £5,000 to £10,000, as from April 2013, making this service much more useful in disputes over purchases of cars.
Small Claims cases should be commenced via moneyclaim.gov.uk , which is cheaper than the Small Claims Track of the County Court.
WHAT HAPPENS IF YOU GET A COUNTY COURT RULING IN YOUR FAVOUR AND THE DEALER WHO SUPPLIED THE FAULTY CAR IGNORES IT?
You then apply for a High Court Sheriff's Enforcement Order (costing £70) which empowers the Sheriffs to seize the debtor's assets to the value of the claim, plus all your and their costs. Sometimes the debtor will attempt to apply to the Court for a 'Stay of Execution' but such applications usually fail. The culture of these people is to only ever pay when they absolutely have no other choice, and in most cases when the Sheriffs arrive they pay up.
Latest OFT Guidelines
You have to invoke the Sale of Goods Act 1979 Part II Section 14, as modified by the Supply of Goods and Services Act 1982, subsequently modified by the Sale and Supply of Goods Act 1994, contending that the supplier is in breach of contract to you for supplying a car which was not "of satisfactory quality", or did not remain so for a reasonable period of time. Appeal Court Case law (Bernstein v Palmerston Motors 1987) has held that the supplier must be given three chances to rectify the fault for which the goods are rejected and must have failed to do so. The goods must be returned to the supplier together with all keys and paperwork. (Scott and Scott v Blade Motor Company 1997.) And the supplier (in the case of a car the dealer principal of the dealership) must be sent a letter by recorded delivery detailing why the car has been rejected as not "of satisfactory quality". Case law (Rogers v Parrish 1987) has put a limit of 6 months on the time you can successfully reject a car and obtain a full refund, though lesser refunds, taking account of mileage covered, may be obtained outside that period. The price you pay compared to market value will be taken into account. So if you buy a cheap car on trade terms you cannot reject it under the Act. And if you buy a cheap car (under £2,000) on retail terms from a trader, you cannot reasonably expect it to be perfect.
The House of Lords Appeal Court verdict in Clegg v Olle Andersson (trading as Nordic Marine) 11-3-2003 has caused some confusion which some believe to have overruled Bernstein v Palmerston Motors 1987. In this case a yacht was supplied with an overweight keel in breach of its specification which formed part of the original contract. It was held that Clegg could reject the yacht at more than 6 months from date of purchase even though Mr Andersson had offered to make modifications to try to correct the fault. Basically, because the yacht had originally been supplied "of unsatisfactory quality" and this was admitted, Mr Clegg retained the right to reject it. For Clegg v Olle Andersson to apply to other cases, it must be proven that the fault existed on the date of sale and constituted a breach of the original purchase contract. Clegg v Olle Andersson cannot apply where a fault develops at some time after purchase. In those cases, it was thought that Bernstein v Palmerston Motors 1987 still applied and the dealer has to be given three clear chances to rectify the problem.
A new draft Consumer Bill introduced in the Queen's Speech on 8th May 2013 is intended to set out clearer consumer rights, in particular allowing the retailer only one opportunity to repair a fault before the purchaser can reject a product such as a car. If this is passed by Parliament it will over-rule the the ruling in Bernstein v Palmerston Motors 1987.
But another case, that related to a car sale, was Bowes v J Richardson & Son Rugby County Court, 28 January 2004.
The two key issues were whether a reasonable time had elapsed before the Claimant intimated their rejection of the goods, so as to preclude rejection (Sale of Goods Act 1979, s.35). And whether the Defendant had accepted the Claimant’s rejection of goods by doing repairs without his authority, and whether they were bound by that acceptance. Also of note, the Defendant’s unauthorised repairs rendered any subsequent joint expert inspection worthless. Their poor case preparation (in particular their failure to provide relevant evidence, even where it might have been available) was perhaps not fatal to their case, but it was nevertheless instrumental in the Claimant's success.
The case was decided at County Court and it is therefore not a binding precedent (as is Clegg v Olle Andersson), but it may be persuasive in future County Court cases.
'Reasonable Time' for Rejection
The judgment shows how the decision in Clegg v Olle Andersson T/A Nordic Marine  EWCA Civ 320 is being applied in practice (and how Bernstein v Palmerston Motors (Golders Green) Ltd  2 All ER 220 is not accepted as current law). Whereas Clegg was concerned with the rejection of a £250,000 yacht, this case dealt with a motor car, a situation far more familiar to consumer advisers.
Summary: Mr Bowes bought a new car from the Defendant, and it was delivered on 2 September 2002. Over time, it became apparent that there were numerous faults with the car, and Mr Bowes rejected it on 2 April 2003, exactly 7 months and 2811 miles after delivery. The Defendant said that Mr Bowes could not reject the car, due to the time which had elapsed. Mr Bowes had notified the Defendants of various defects at intervals between one day and a few weeks, and certain of these defects were still present on 2 April 2003 despite the Defendant's attempts at diagnosis and repair; accordingly, Mr Bowes had not lost his right to reject the car.
Acceptance of Rejection
Although the case was decided on the basis of Clegg and s.35(4–6) of the Sale of Goods Act 1979, the District Judge also dealt (obiter dictum) with the issue of ‘acceptance of rejection’. In his judgment, the principle in s.35(1)(b) of the Sale of Goods Act could be applied in reverse, when considering whether a seller has accepted a buyer's rejection of goods.
The Defendant had carried out repairs without Mr Bowes’ authority. In doing this, they had acted in a manner inconsistent with Mr Bowes' ownership, thereby accepting that the car had been rejected. They were bound by their acceptance of Mr Bowes’ rejection, even if he had not in fact been entitled to reject the car.
This principle of ‘acceptance of rejection’ could potentially be very effective where traders carry out unauthorised repairs after a consumer intimates rejection (and especially where this jeopardises the chance of obtaining an independent expert report).
This was only a County Court case, so cannot overrule Bernstein v Palmerston Motors, but may still give scope for rejection when a fault or raults develop with the car some time after purchase.
The full judgment is here - http://www.bailii.org/ew/cases/EWCA/Civ/2003/320.html - and the relevant paragraph is paragraph 63, where the Judge says (of the Bernstein decision): "In my view it does not represent the law now." This was partly because the Bernstein decision pre-dated the Sale and Supply of Goods Act 1994, which gave consumers more rights to reject goods.
The Supply of Goods to Consumers Regulations 2002, is derived from EU Directive 1999/44/EU which became Clauses 48A to 48F inclusive of the Sale of Goods act in April 2003. This reverses the burden of proof so that if goods go faulty within six months after purchase it is deemed they were faulty at the time of purchase and the trader has the onus of proving that the item is not defective due to a manufacturing defect.
This gives more teeth to the judgement in Bowes v J Richardson & Son
The Consumer Protection from Unfair Trading Regulations May 2008 (CPRs) contains a general prohibition against unfair commercial practices and, in particular prohibitions against misleading actions, misleading omissions and aggressive commercial practices. The Regulations are enforceable through the civil and criminal courts.
www.berr.gov.uk/whatwedo/consumers/buying-selling/sale-supply/sale-of-good-act/page8600.html , www.opsi.gov.uk/si/si2002/20023045.htm and http://www.consumerdirect.gov.uk
This creates an offence of misleading omissions which would not previously have been an offence if the consumer had not asked the right questions. So if a salesman knows a car has, for example, been badly damaged and repaired and does not tell the customer, he could later be held liable if the customer subsequently discovered that the car had been damaged and repaired. A recent case precedent over Misleading Omissions under Consumer Protection from Unfair Trading Regulations 2008/1378 was Regina (House of Cars) v Derby Car and Van Contacts Ltd, Derby Crown Court before HHJ Burgess on 12-6-2012, covered here: Regina (House of Cars) v Derby Car and Van Contacts Ltd In this case the purchaser had been sold a car as new when it had been pre-registered to a fleet, and remained registered to that fleet, putting the purchaser in breach of Section 43c of the Vehicle Excise and Registration Act 1994 because he was using the car on the road but was not the registered keeper.
during the first six months:
The consumer returns the goods in the first six months from the date of sale and requests a repair or replacement or a partial refund. In that case, the consumer does not have to prove the goods were faulty at the time of sale. It is assumed that they were. If the retailer does not agree, it is for the retailer to prove that the goods were satisfactory at the time of sale. This comes from Sale and Supply of Goods to Consumers Regulations 2002, derived from EU Directive 1999/44/EU which became Clauses 48A to 48F inclusive of the Sale of Goods act in April 2003
after the first six months:
Under sale of goods legislation (Sale of Goods Act 1979, Sale and Supply of Goods Act 1994) consumers are entitled to expect that any goods they buy are of satisfactory quality. That is, that the goods meet the standard that a reasonable person would regard as satisfactory taking into account the way they are described, their price, and any other relevant circumstances, such as the fact that they are second-hand or used. ... ..
If a product that was not of satisfactory quality at the time of the sale is returned to the retailer, the buyer is entitled to a full refund (if it is within a reasonable time of the sale), or, if a “reasonable time “ has elapsed, to a reasonable amount of compensation, or to have the goods repaired. The consumer needs to demonstrate the goods were not of satisfactory quality at the time of sale. This is so if the consumer chooses to request an immediate refund or compensation. It is also the case for any product returned more than six months after the date of sale.
If the amount is less than £10,000 and qualifies for the Small Claims Court then any decision made does not become case law. (Change from £5,000 to £10,000 in April 2013.)
However, if it goes to the County Court, then a ruling does become referrable. County Court rulings can be overruled by Appeal Court rulings which then become case law. And cases will be argued on the facts. So though the Sale and Supply of Goods Act may appear to give you rights, your true rights are governed by case law and asserting them can be very expensive.
WARNING ABOUT PURSUING A TRIVIAL CASE TOO FAR
Important Appeal Court Case Precedent supplied by Andrew Quirk
A recent hearing highlighted the importance of seeking sensible early legal advice in order to save unnecessary expense.
Darren Egan vs. Motor Services (Bath) Ltd (18 October 2007) is a Court of Appeal case which saw the consumer who attempted to reject his vehicle lose out dramatically.
The consumer complained that his car, a new Audi TT 3.2 litre V6, veered to the left and as such wanted to return the car to the dealer and be refunded.
Whilst an expert witness gave evidence supporting the consumers claim, the Court ruled that the vehicle was "of satisfactory quality" because the sensitivity of the car to camber was in fact normal for that type of car - the reasonable person would not consider that this would make the vehicle unsatisfactory.
This provided a useful case precedent for motor dealers as it makes clear that vehicles may have "characteristics" such as sensitivity to the camber of the road without being "of unsatisfactory quality". It may also prove to be useful case law for retailers of other consumer products.
The legal expenditure of both parties was around £100,000 and the car cost £32,300 in July 2003. This led Lord Justice Ward to exclaim: "...one or other parties to the action, if not both of them..." were "...completely cuckoo..." to have pursued the litigation when little was at stake and that the lawyers should have taken "...the firmest grip..." from the outset.
This case shows the fundamental importance of getting expert guidance on the legal issues raised in a dispute and how to resolve it at the earliest opportunity.
Clarks legal provides a number of motor help lines which allows motor dealers to obtain advice on their position as soon as a customer issue arises, as a result appropriate steps can be taken before proceedings are even considered by a customer. For more information please contact firstname.lastname@example.org
Specialist solicitors www.bridgemcfarland.co.uk www.clarkslegal.com
Alternatively, if the claim is a relatively simple one for a specific amount of money use www.moneyclaim.gov.uk run by HM Courts Services.
A traders guide: the law relating to the supply of goods and services
www.consumerdirect.gov.uk connects you to your local Trading Standards office for free advice by telephone or e mail on all the usual areas of commercial (not criminal) dispute encountered by motorists, and others.
Note that the Act that compels manufacturers to supply spare parts for motor cars for 10 years from the date of sale is the Supply of Goods and Services Act 1982.
Trade Sales that aren’t
The Sale and Supply of Goods to Consumers Regulations 2002 gives buyers of relatively new used cars who pay a full retail price a virtual guarantee of 6 months from the date of sale by assuming that any fault that occurs with the vehicle within 6 months was already developing at the date of purchase. You have occasionally mentioned dealers attempting to get around these regulations by calling a sale that obviously is not, a "trade sale". A "trade sale" implies that the customer is a trader with some knowledge of the car trade who is buying the car to re-sell. In reality this phrase is meaningless. It is not possible for two contracting parties to agree to avoid the effects of the consumer protection legislation (even if they wanted to). Obviously, if the car is sold to an ordinary private individual at a retail price, then its status as a "trade sale" for legal purposes needs to be challenged and precedents set in the courts to guide judgements in other such cases.
New Consumer Protection Regulations effective from 26th May 2008.
The Consumer Protection Regulations (CPRs) came into force on 26 May 2008.
The CPRs apply to all businesses that trade directly with consumers – including second-hand car dealers, car rental firms and mechanics. They ban 31 types of unfair sales practices outright including posing as a private dealer, bogus closing down sales and faking credentials. They also, for the first time, establish a catch-all duty not to trade unfairly, closing loopholes that rogue traders have previously been able to exploit.
Consumer Affairs Minister Gareth Thomas, said: “Honest traders understand the value of treating customers fairly and they’ve had enough of losing profit to rivals using underhand tactics to get ahead. The Consumer Protection Regulations will deliver better protection for consumers, cut red tape and put in place a simpler and clearer consumer law that will be easier to interpret and enforce.”
Trading Standards and the OFT will enforce the new law. A wide range of sanctions are available to them, depending on the seriousness of the offence, from guidance and codes of conduct to unlimited fines and lengthy prison sentences.
Whilst the majority of businesses do trade fairly and may not have to change their practices, it’s important that all companies are familiar with the new law and how it will affect them. For more information on the Consumer Protection from Unfair Trading Regulations, visit www.businesslink.gov.uk/unfairtrading.
The Consumer Protection from Unfair Trading Regulations implement the Unfair Commercial Practices Directive which establishes consistency of trading across the EU, making it easer to market goods and services to an internal market of 460 million consumers.
The Government invested approximately £7.5 million in new specialist Trading Standards 'scambuster' teams. These teams tackle the real crooks that deliberately set out to defraud consumers. They will be at the forefront of using the new Consumer Protection Regulations.
The legislation primarily affects businesses across the UK who trade directly with consumers or whose products are used by consumers and cover goods, services, obligations and contractual rights wherever trading takes place including on the high street, online, by phone or via TV. BERR believes there are around 750,000 affected businesses in total in the following sectors:
o Second-hand motor trade
o Timeshare and holiday clubs
o Home maintenance, repairs and improvements
o Betting, competition and prize draws
o Sale and repairs of motor vehicles
o Hotels, restaurants and take away food services
o Rental of automobiles
o Rental of sports and recreational equipment, incl. TV and video rentals
o Dry cleaning, hairdressers, beauty treatments and physical well-being
The Department for Business Enterprise and Regulatory Reform helps UK business succeed in an increasingly competitive world. It promotes business growth and a strong enterprise economy, leads the better regulation agenda and champions free and fair markets. It is the shareholder in a number of Government-owned assets and it works to secure, clean and competitively priced energy supplies.
Using Section 75 of the Consumer Credit Acts if 1974 and 2006
If your car is being purchased on finance, then you may be able to obtain redress from the finance house.
You need to claim under section 75 of the Consumer Credit Act.
Johnson v HWM Ltd Kingston County Court 17-3-1997
Allows an indefinite delivery date for a new car and also change of specification
of the car in between dealer order and manufacturer delivering the car to the dealer because both are out of control of the dealer. If a contract has been entered into between dealer and customer with a substantial deposit, then that contact remains binding and, unless specified in the original contract, an indefinite delivery date or change of specification are not breaches of contract.
Robert Carlyle V DaimlerChryser Retail Limited T/A Mercedes-Benz Chelsea, Bromley County Court 21-11-2008
Claim No. 6BO01850 ( Bow County Court)
The trial took place at Bromley Crown Court on the 10th November 2008 and Judgement was delivered at Bromley County Court on 21st November 2008.
Legal Precedents Set:
If you are "given" a "roadside recovery", the garage/showroom is responsible for your car while it is being recovered by whoever they instruct/sub-contract to.
A buyer cannot sign to agree to terms and conditions if the form he signs states "the terms and conditions of the warranty will follow within 7 working days". You cannot agree to terms unless you are made aware of them prior to signing.
For instance, if an "order" form states " 12 months roadside recovery", the fact
that this recovery is provided by a "separate legal" company does not indemnify the seller of the recovery service, as the "order form (contract) does not state this fact and the "order" form is with the specific retailer who sold it.
Barnes v McGrath Evesham County Court May 2011 : Dealers need to include repairs and returns policy in their T&Cs
This did not set any legal precedent. In this case, the dealer McGrath sold a car to the plaintiff Barnes. The engine failed and Barnes has it independently repaired then invoked the CPRs and Clegg v Olle Anderson in the Small Claims Court to sue McGrath for the cost of this. McGrath contended that he should have been given the opportunity to rerfund Barnes money and take the car back, or replace the engine himself. But he lost his case and also lost the right to appeal the ruling. The reasoning behind the judge's decision was that while Mr Barnes should have sought recourse with the dealer McGrath before having the engine replaced, unless this was defined as a *requirement* in the terms and conditions and the customer was advised of this at sale there could be no assumption that Barnes (as a private individual) would know that is what he had to do and consequently could take it anywhere to get it fixed (assuming the cost were reasonable).
The judge believed that both Mr Barnes and Mr McGrath were credible and honest and said so - and that a fault had occurred with this particular vehicle which needed to be rectified.
However the implication for the second hand dealer is that unless the dealer defines a "returns and repair" policy at time of sale in their Terms and Condtions then the consumer has no need to prove there is a fault with the vehicle following sale, nor indeed is their any requirement for the dealer to be offered the opportunity to repair any fault or refuse to pay if the customer takes the car to his own repairer, providing that the costs of the repair are deemed by the court to be reasonable.
It must be stressed that this is a small claims court decision and hence not binding but the implications are that all dealers need to include a returns and repair policy in their terms and conditions and flag up the policy to their customers if they wish to avoid bills charged to them for repairs which have not been acknowledged, proved or pre-agreed and which might be undertaken at their expense by third party repairers.
The case originally heard at Evesham court concerned a Land Rover Discovery sold by dealer Sean McGrath in March 2010 to private buyer, Garry Barnes.
Barnes, an accountant and company secretary for a midlands PLC, claimed the car suffered gearbox noise two weeks after purchase, but rather than contacting McGrath to ask him to fix it or even informing him of the fault, he had a replacement gearbox fitted with a local repairer at a cost of £2750.
The first the dealer McGrath heard of the gearbox failure was when he received a demand for payment three months later with a threat of court action under the Sale of Goods Act if he did not settle the bill.
The case proceeded to Evesham County Court where both parties represented themselves.
District Judge Savage hearing the case accepted the honesty of all the parties and ruled that the car had broken down as Barnes had said and that the cost of the repair had been reasonable. ‘While Mr Barnes ought to have consulted the dealer first, as a member of the public he may not have known this and there is nothing in the Sale of Goods Act which requires him to do so’ said the judge.
Despite Barnes being unable to produce the old gearbox or a receipt for the purchase of the replacement gearbox Judge Savage ruled in favour of the claimant and ordered McGrath to pay him £2751.04 plus £443 costs.
McGrath sought to appeal the case on the grounds that it was well accepted practice and defined in the Office of Fair Trading’s guidance on the Sale of Goods Act that he should have a right to examine the vehicle and instruct his own repairers.
However leave to appeal was refused by Worcester court which said that McGrath’s “returns and repair” policy should have been defined at time of sale in his terms and conditions.
Hahn v Pines of Wickham Bournemouth County Court May 2005
This case, started on the small claims track of Weymouth County Court in December 2004, progressed to the county court and then went to appeal at Bournemouth County court in April or May of 2005. Mr Hahn had bought a 1998S Subaru Legacy 2.5 from Pines of Wickham in August 2004 for £4,000. It was found to have a leaking cylinder head gasket on one of the banks of cylinders. The first small claims court judge ordered Pines to repair the car and compensate Mr Hahn with £500. The dealer appealed, and a stay of enforcement was granted. At the appeal hearing Pines barrister contended that the car had not been worth repairing, but. in fact, it had been repaired. Eventually, at a third hearing, the judge found against the dealer and criticised him for not resolving the matter more quickly.
If a car still under manufacturer's warranty breaks down while you are on holiday, and is repaired under warranty, you may be successful in claiming consequential losses arising from losing the car during the period of the repair.
Freeborn Garages’ Citroen dealership in Southampton, Hampshire, sold the Rev Carl Chambers an ex-demonstrator C4 Picasso.
But after 16 months the car broke down in the middle of a family holiday in France. A gearbox selector had broken and took weeks to fix.
Chambers asked for a hire car from Citroen but was refused. Instead, he had to pay to hire a car for the rest of the holiday, fly himself and his family home, hire another car in the UK, then fly back to France to drive the original car back once the problem was fixed..
Citroen paid for the repairs but refused to cover all the extra costs (amounting to £1,345.16), arguing they weren’t liable because he didn’t have the extended warranty and breakdown insurance.
Chambers decided to use the 1979 Sale of Goods Act to get compensation.
The Small Claims track of Brighton County Court ruled in his favour for consequential losses and Chambers received £1,345.16 in compensation.
Because it was a Small Clain in a County Court, it sets no legal case precedent.
The Sale of Goods Act states any goods sold must be of satisfactory quality and also reasonably fit for purpose. The contract of goods is between the seller and the buyer – not the manufacturer and buyer
So in the case of a car, the garage that sold the car was responsible.
The act states: ‘The product you brought must remain of satisfactory quality for a reasonable amount of time, whatever the length of the warranty.
Court fees are set out by Her Majesty's Court Services:
Court Issued Claim
Money Claim Online (MCOL)
Court Issued Claim up to £300 = £30
Money Claim Online (MCOL) up to £300 = £25
Court Issued Claim £300.01 - £500 = £45
Money Claim Online (MCOL) £300.01 - £500 = £35
Court Issued Claim £500.01 - £1,000 = £65
Money Claim Online (MCOL) £500.01 - £1,000 = £60
Court Issued Claim £1,000.01 - £1,500 = £75
Money Claim Online (MCOL) £1,000.01 - £1,500 = £70
Court Issued Claim £1,500.01 - £3,000 = £85
Money Claim Online (MCOL) £1,500.01 - £3,000 = £80
Court Issued Claim £3,000.01 - £5,000 = £108
Money Claim Online (MCOL) £3,000.01 - £5,000 = £100
Court Issued Claim £5,000.01 - £15,000 = £225
Money Claim Online (MCOL) £5,000.01 - £15,000 = £210
Court Issued Claim £15,000.01 - £50,000 = £360
Money Claim Online (MCOL) £15,000.01 - £50,000 = £340
Court Issued Claim £50,000.01 - £100,000 = £630
Money Claim Online (MCOL) £50,000.01 - £100,000 = £595*
Court Issued Claim £100,000.01 - £150,000 = £810
Money Claim Online (MCOL) £100,000.01 - £150,000 N/A
Court Issued Claim £150,000.01 - £200,000 = £990
Money Claim Online (MCOL) £150,000.01 - £200,000 N/A
Court Issued Claim £200,000.01 - £250,000 £1,170
Money Claim Online (MCOL) £200,000.01 - £250,000 N/A
Court Issued Claim £250,000.01 - £300,000 = £1,350
Money Claim Online (MCOL) £250,000.01 - £300,000 N/A
Court Issued Claim more than £300,000 or an unlimited amount = £1,530
Money Claim Online (MCOL) more than £300,000 or an unlimited amount N/A
If you are ever claimed against you should look fort EX303 on the HCMS website, which gives you all the information you need to respond to a claim following the lodgement of an NI by the Claimant. Link to HCMS/EX303
A buyer from a private seller does not have any 'consumer rights', but still has the benefit of an implied contrtactual term that the seller has the right to sell the goods (s.12 SGA)
He also has the benefit of the implied contractual term that the goods, if sold by description, correspond with any description applied (s.13 SGA). There is no need for a buyer to have relied upon the description or for any fault on the part of the seller: if it counts as a description then it is a term of the contract and non-conformity is actionable as a breach of contract, since contractual liability is strict.
Even if it does not count as a description for the purposes of s.13, it may anyway be a term of the contract, if the buyer made sufficient point of it, and even if not a term of the contract an action lies for misrepresentation where a statement of fact is made prior to contract which has some influence, however small, on the
other party's decision to enter into the contract, and subsequently proves to be false, thereby causing loss to that party. All of this is equally applicable whether a seller is a trader or not.
The implied term in s.12 (seller has right to sell) cannot be excluded by any contractual term: s.6(1) Unfair Contract Terms Act 1977 (UCTA). That in s.13 (description) cannot be excluded if the buyer is a consumer: s.6(2) UCTA. In either case the status of the seller is irrelevant.
A very interesting point for some motor traders arises in relation to s.14. The term in s.14 (satisfactory quality) only applies where the seller sells by way of business. It can only be excluded against a buyer who buys by way of business if the exclusion is reasonable: s.6(3) UCTA. As with the s.13 term, it cannot in any circumstances be excluded against a consumer buyer: s.6(2) UCTA. This means that where a trader offers to sell at either of two prices, one a 'consumer' price with the benefit of s.14 rights, the other a 'trade' price without the benefit, this exclusion has no effect if the buyer at 'trade' price is in fact a consumer, unless he fraudulently holds himself out to the seller as a motor trader so that the seller thinks he is indeed dealing with a fellow motor trader. A consumer cannot bargain away his rights under ss.13 and 14 by means of a
collusive pretence with the seller that the sale is within the trade.
Further detail on the implied terms can be found in Dr Richard Austen-Baker's book Implied Terms in English Contract Law, available from all good booksellers for £65.
Latest News 2-7-2013:
Reader BC of Warwick has won a small claims action against a Coventry trader over a £3,000 Ford Focus estate car bought from an advertisment on Autotrader.
The story of how he achieved this may encourage other readers to take action where they feel they have been cheated.
BC bought the used Ford Focus advertised on Autotrader for £3,000 from trader Gary Thorn of G.T. Sales. 5 Farber road, Walsgrave, Coventry
Ater 3 weeks it broke down. The trader took 10 days to return the car and it broke down again on BS journey home.
15 days later BC got the Focus back again and it broke down for a 3rd time 3 days later.
After the 3rd failure, BC requested a refund. This was refused. So BS went to the Citizen's Advice Bureau and Trading Standards for advice advice.
He arranged a compromise for the car to be fixed at a 3rd party garage (VRS Coventry). However, only remedial work was done to replace the timing belt of the diesel engine and 2 days later the same engine system fault occurred and the vehicle broke down for a 4th time.
BC took the car back to the trader and requested a refund.
He said he needed to check it out first before he could give BC the money back. Whilst BC was on Holiday the trader took the car without authorization from BC back to VRS and requested that a diagnostics was carried out. BC discovered this when he received a call while on holiday say his car was ready to be picked up.
When the garage called Gary Thorn for him to come and collect the car he refused to pay, so VRS was forced to excercise the right of lien and hold the car until payment was received. BC was therefore left with no car and no refund.
BC received judgement from the Northampton County Court and issued a warrant on 6th June 2013 in order to execute this judgement to hopefully get his money back (Total payable: £3,504.50.)
The car was originally sold to him described as in "fantastic" condition and the trader failed to disclose that it had been sold to him for scrap 1 month earlier.
After receiving the court notification the trader tried to force BC to pay the £700 of storage charges it had accrued while on VRS premises.
How to make a claim using the small claims track of the county court:
8-10-2013: Car Dealer Magazine reports that a Hertfordfshire car dealer has been fined a total of £3,645 for selling an unroadworthy car, despite the fact the price had been reduced from £995 to £700.
The case sets no legal precedent, but serves as a warning to small dealers that the business of selling used cars at below £1,000 is no longer economically viable.
Owner of the dealership, Leon Howman, pleaded guilty to two offences under the Road Traffic Act and the Consumer Protection from Unfair Trading Regulations on September 23 at West Hertfordshire Magistrates Court.
While Howman was away in Switzerland he left his brother, Bevis, in charge of running the Leon Howman Cars based in Hitchin, Hertfordshire, where he sold an 11-year-old Zafira.
He sealed the deal at a reduced price of £700 down from the original £995, as a trade sale to Trading Standards Officers posing as consumers in January this year.
According to The Comet newspaper, the car had a worn handbrake and a rusty ball joint that affected the steering, making the vehicle dangerous to drive.
The court heard that Trading Standards Officers had given comprehensive advice in 2010 to Leon Howman, including advice on checking the roadworthiness of cars.
Howman was also told that he could never restrict a consumer’s statutory rights with statements such as ‘sold as seen’, ‘no refunds’ and ‘trade sale only’, which try to disclaim liability.
Howman is said to have put the offence down to a mistake by his brother, who was left in charge of the business without knowing the legal responsibilities.
The business was fined £700 for the sale of the ‘unroadworthy car’ and £1,000 for trying to escape liability by calling the deal a trade sale. Leon Howman Cars was also ordered to pay prosecution costs of £1,645 and a victim surcharge of £120.