Thread: court / vehicle survey

Hello all

I bought a 'used approved vehicle' in May 2006 from a mercedes-benz dealership.

Whilst under warranty the vehicle suffered water ingress into the main fuseboard - localised repair to small area under done under warranty.

Just after the warranty ended the same thing happened, albeit through a different hole. Apart from a very long list of electrical problems, the odimeter jumped from ~37K to ~54K.

The cause of this is that the vehicle was not sealed properly when built. Despite numerous RECOMMENDED repair guides, dating before my vehicle was built, MB have still not recalled the vehicle type - not sure why...

I have found out it is quite common for these vehicles to leak like sieves, and i am pretty sure i can demonstrate that the fault existed when i bought the vehicle. (NB it probably is not a faulty repair, just not wide ranging enough of a repair as recommended by MB)

The dealer is refusing to remedy the vehicle, but is willing to fix it for ~1K, however this wouldn't resolve the milelage issue.

To date, my hire car costs are about ~2K, loss of earnings ~1k, and would like to claim for compensation for the loss in value for the mileage problem.

Having exhausted their warranty/goodwill schemes i am at the stage of issuing legal proceedings.

My questions are:-

I need to retrieve the vehicle & take to another garage to survey & repair. (I need the car back and working instead of a hire car).
Is this sufficient to be classed as an independant expert survey?
Will the garage be allowed as an expert witness, dispite me instructing them before the court has ordered me to instruct them?
Would they have to attend court, or would a written statement be admissable?
I understand that it common practice to offer the dealer an opportunity to survey the vehicle.
If the garage carries out the repairs after surveying the vehicle, and the dealer doesn't have the vehicle inspected at the same time, how would the judge instruct an expert witness? / if at all?
Can I claim for my hire car, loss of earnings & compensation for mileage issue?
Any suggestions for how to calculate the compensation for the mileage issue? (I was going to use market value of vehicle minus 1% for each 1K of extra miles = 1.4k This is taken from MB 'buy back' policy for vehicles)
IF i went down SCC route, obviously I would have to reduce this to 1K, so to limit the total to 5K
Would the repair fall under the surply of goods act , dispite being carried out under warranty?

Thats all for the moment

Thank you in advance

I think you may be jumping the gun somewhat.

The first thing to establish is whether you have any rights in the first place before you start to think about court.

Lord Denning famously said that buyers of second hand cars should expect that faults will occurr sooner ot later and in the absence of an express warranty, they will have no recourse.

You see, the provisions of the Sale of Goods Act are for new goods and when considering second-hand goods one must take into account the age, price paid and condition of the goods. You can't expect the same levels of quality etc with second hand as you would with new.

Your problem would be to demonstrate to a court that the car didn't conform to contract 3 years ago (at the time of sale). If you are relying on the fact that it is well known that cars like yours leak then why hasn't there been a product recall and why are the courts not stuffed with litigants?

I'm sorry if I sound a little harsh, I just want to demonstrate the size of montain you have to climb in order to win your case.

If you do still wish to proceed then you should

Have the car examined by an independent (the AA or an engineer, not another garage who may be seen as a competitor)

Get a written report and send a copy to the dealer asking for a repair (this report should state that the vehicle was faulty at the time of purchase) otherwise you will start court proceedings.

Only once you have done this should you consider what damages to claim. Start now though by listing all expenses and please consider whether you have mitigated your losses as a court would be looking to see that you have.

Prolix

Thank you for the feedback.

With regards to your point about it being second hand, the car was 1 year old, own by mercedes with ~6500 on the clock. I would expect that mayor design faults with the vehicle, i.e. present when I bought the vehicle, would indicate that the vehicle was not fit for purpose. In this case cabable of keeping electrics, important to the vehicle's safe operation, dry. Point taken about it is what the court thinks not me...

I have discovered that there was a Manufacture approved rectification program (though not a 'recall') at the time I bought the vehicle. The lengthly remedial training guides (created & recommend by MB) clearly identifies the faults and remedial action to be carried out. These were not carried out on my vehicle. As to whether this would demonstrate that it did not conform to contract I do not yet know.

With regards to the independant survey, I have found people willing to do the survey who are familiar with the faults & remedial actions required. Unfortunately they are the gararges that specialise in theses repairs. I have struggled to find someone who is (a) knowledgable about the problems & (b) willing to undertake a survey. I had not thought of the AA.

Again, not wanting to jumping the gun, Expenses wise, i've attempted to keep the expenses to a minimum, however could you elaborate on the 'mitigated your losses' bit. i.e what may be or may not be acceptable?

thanks again

Well, mitigating losses is about keeping them to a minimum.

For example, you say that there was a hire car, was this an ordinary car; the smallest that you could practically have used. Or was it a luxury executive model?

Mitigating losses here would be taking the option of the smaller car and not the larger.

I would think about this when considering expenses because if expenses are awarded then it may go in your favour if you can show mitigation.

Going from what you said you may have a fair chance in this one if the car was bought from a dealer who was the previous keeper and who should have carried out the remedial repairs.

I assume that from the age and mileage this was not a cheap car, so taking all of that into account I think that you can expect a higher level of quality than most buyers of second hand vehicles. That said, it has been 3 years since you bought it...

You mention that the fault occurred just outside warranty. How long had you had it then and how much use did you have of it? These are things a court would look at.

Thank you for your reply

Since the dealer was unwilling/able to loan me a vehicle, I got a hire car that was the cheapest i could get (~£10 /day), meaning I had the indignity of driving around in a corsa... (no offence to those driving a corsa)

Just to clarify the car was a manufacturer vehicle, which was then sold to me by a MB dealer as a 'used approved'- two different entities. Yes the car was a fair bit considering it's age.

The first time I had it when the fault in question became apparent was eight months after I bought the vehicle. The second time was 29 months after I bought it. However there were 6 occaisions that I had to return the vehicle over this period for 11 warranty 'fixes', 5 of these related to leaks (excluding the current episode).

If you can link the leaks to a bigger issue then you may be justified in stating that the problem first manifested itself after 8 months. You may also be justified in stating that the the faults were there at the time of purchase and therefore you are entitled to a remedy.

However, it is possible that these leaks are treated as isolated incidents, and, if so, your chances of winning at court would be slim indeed. I've no doubt that MB would try and argue that they are isolated and that there is no inherrent fault and that they did not consider the leak problem to be bad otherwise they would have made the repair mandatory.

The one thing you have in your favour is that your claim will fall under the maximum for small claims and you don't have to instruct a solicitor. And expenses are limited if you are not successful.

MB will have a large and well paid legal team and access to all sorts of experts. And even if you win, that doesn't automatically mean they will pay you...

So, if you can get a report linking your fault back to the condition of the car at purchase, who would be willing to attend court, then it might be worth a try, but you'd be up against a formidable opponent and your case, like your car, isn't watertight

If you are in England, I believe that the courts there have a mandatory mediation process so you might find that useful and less combatative.

Ifyou paid anything on a credit card (>£100) then complain to the card provider then the financial Ombudsman. If it is on HP then complain to the HP Co. as they are the actual owners until the final payment.