Hi there. I hope this post makes sense. I'll try to be concise

We bought a used car from a dealer and moved 250 miles away.

20 days later a grinding noise, which may have always been present and mistaken for a sports growl, became so loud that my wife pulled over and called the AA.

It was taken to a local garage who had a transmission specialist tear down the gearbox to find the mainshaft was badly worn.

The brake discs were also found to be badly corroded.

It was the garage's opinion that there was no way this could have been caused in 20 days of driving. And that to a trained ear, the fault should have been noticeable at the point of sale.

Total cost of repair £1200

We were in touch with the dealer throughout this diagnostic process.

After speaking directly to the mechanic,

he sent me an email stating that it was not his fault,

that he couldn't tear down every gearbox before sale,

and that the damage was most likely caused by reckless driving.

He offered to pay about half of the fees,

which I rejected and have filed a claim using MCOL.

I have documented the damage and I'm the process of getting an independent report based on the evidence I have.

My claim is that given the price and mileage of the car, it was not fit for purpose.

Because the car was in 1,000 pieces on the other side of the country, I didn't feel it was fair (on the dealer) or convenient for us to pursue my right to reject.

Instead I asked him to meet the full cost of the repair.

It was the only convenient solution that I could see for all parties.

Having said that, I did present both options to the dealer, but as he ultimately did not admit liability, my only course of action was to pay for the repairs and pursue the costs in court.

Here is (one of) my questions.

By bypassing my right to reject,

where does the burden of proof lie in terms of the faults being present at the point of sale??

It is my understanding that by invoking the right to reject within the first 30 days, the burden of proof lies with the consumer and after the 30 days expires, that burden is transferred to the dealer. I essentially bypassed that right, and moved straight onto the right to a repair - but still within the first 30 days!?

I have quite a few other questions as I begin to prepare my case, but this is one that is nagging me right now. Any advice, much appreciated.

OR... perhaps once it reaches the courts, burden of proof no longer applies, and it simply moves to the balance of probability? (we both provide evidence)

There is an automatic assumption that if the fault materialises within six months of the date the contract was made, that the goods were defective at the time they were supplied. So in answer to your question, you have no burden of proof. All you need to do is show that it was defective. I'm not quite sure what you mean that the burden of proof lies with the purchaser in the first 30 days and then transfers to the seller. If anything, it would be the other way round. However, the burden of proof lies with the seller in both cases to show that the defect did not exist at the time of supply. Of course, you will have the burden of proof of showing that defect exists at all – but that is easily done and in fact from the sounds of it, you have already done that.

The right to reject has to be asserted – meaning that you must bring it to the notice of the seller and it must be very clear and unambiguous. The best thing to do would be to do that in writing. Although you acted within 30 days, it does not sound as if you invoked your right to reject.

A shame that you have given up your short-term right to reject within the first 30 days. This would have made life much easier for you. This is the second post I've seen today where someone has thrown away this very valuable consumer right.

At the very least, if you had asserted your right to reject then you will would at least have had a negotiable option because you could have then given the seller a without prejudice option to repair the situation quickly and without fuss or else face having to give a refund and to collect the vehicle. Of course, it hasn't at all help that you decided to start carrying out the repair yourself. Commendable, of course, that you felt a sense of fairness towards the seller. Let's see if you still feel the same way by the end of it all and you eventually get your money back or your repairs carried out.

You are now faced with two problems. First of all, if you want to get back the costs of the work you have had carried out so far, you will have to show that it was reasonable to have the work carried out in the way that you did rather than give the option to the seller to carry out the work himself. You could end up going to court and find that the seller argues that you paid over the odds and that he could have carried out exactly the same repair at a fraction of the cost. The seller might then be in a position where he might have to refund you simply what the judge considers would be the reasonable cost of the repair. I hope you can see that you have started to complicate matters even though I'm quite sure that you thought that you are acting correctly and in good faith.

Thanks for the response.

In fact, I did assert my right to reject.

Over the course of several communications:

I explained that the car had been diagnosed and that no work would be carried out until a solution was proposed by the seller.

I then stated that it seemed best for everyone that he meet the cost of the repair, given that he would have to have the car towed from the other side of the country to carry out the repair himself.

I said that while that would be our preference, if he was unwilling to meet the cost of the repair, I would like to return the car for a refund.

He simply deflected,

told me stop throwing legislation around,

and after several days,

his proposed resolution was a contribution of half the costs.

He was unwilling to accept the car for a refund OR meet the costs of the repair.

I felt I was out of options at this stage.

I gave him the opportunity to go either way, refund or repair, and he refused both.

[edit]

"If you want to get back the costs of the work you have had carried out so far, you will have to show that it was reasonable to have the work carried out in the way that you did rather than give the option to the seller to carry out the work himself."

The fact that the car was so far away surely lends itself to the argument that it was reasonable?

Also, the dealer was heavily pushing attempting to have the repairs done through a thirds party company.

In order for the warranty company to consider a claim,

they needed the gearbox fully stripped and diagnosed.

Therefore, the costs had already begun to mount,

because the dealer was pushing for a warranty repair

(the warranty company would of course not cover the repair because it was not a failure, it was a pre-existing fault)

As I said in my post, if you assert your right to reject then it must be unequivocal. On the basis of what you have said here, it seems to me that it was ambiguous. Anyway, that's water under the bridge now.

I think that you now need to invoke the pre-action protocol, send them a 14 day letter before action and then sue him.

If he is elsewhere in the country and he is a dealer then the case will eventually be transferred to your local court and he will have to travel to you if he wants to deal with it. That alone is likely to be a big disincentive to him to cause trouble.

If you decide you want to take action then I think you need to make sure that you understand the process – before you start sending out LBA's – and be certain that this is the route you want to follow. It is fairly straightforward and on the basis of what you say, your chances of success are better than 95%. However, it won't produce an instant solution unless receipt of the court papers makes him see the light.

If you are not sure about going ahead then it is not worth bluffing. It won't have any effect and you will simply lose credibility. There is lots on this forum about starting a legal action and also if you wanted to have a look at our Consumer Survival Handbook you would find it all set out more neatly in one place with lots of other tips and tricks for standing up for yourself as a consumer.

If you do send a letter before action – then I would suggest that you set out in a bullet pointed form, exactly what has happened and why you are proposing to take the action that you are threatening. Point out to him that if he decides to defend the action that he will be obliged to travel to your local court and that this will involve him in further inconvenience and expenses.

Point out to him that you have done your best to negotiate with him and to which solutions that might be acceptable to him even though it meant giving up some of your rights but as he has refused everything, you are now intending to take a legal action to recover all of your expenses, a full refund for the vehicle as well as your costs and interest.

Spend the next two or three days considering it an understanding the process and then sent the LBA on Friday. Send it by recorded delivery. Log on to the court system MoneyClaim, open an account and start drafting your claim there. You can save your work on the MoneyClaim server until you are ready to issue. You only need to put down a very brief claim but tick the checkbox to say that you will be sending a more detailed particulars after the action has been issued.

"Invoke the pre-action protocol, send them a 14 day letter before action and then sue him."

Is this 14 day letter necessary if after a week of negotiation, his response is: "I would prefer not to receive anymore communications from you. If you want to take me to court, fine. I'll see you in court."

I'm afraid the problem is, I've already filed with MCOL. Before and after filing, I sent him a very pleasant email, urging him to reconsider his position. His answer was repeatedly 'no'. I did have a quick browse through the pre-action protocol, but I felt I'd done everything I could to settle the issue out of court.

I informed him of the fault on 24 Oct, and issued the claim on Nov 2. after I felt I'd explored all other possibilities. I told him I was open to mediation, that if it was a financial problem, we could set up a payment plan. He flatly denies he is liable, and said the offer of payment was a goodwill gesture. I didn't see the point in waiting 14 days when I'd already received a response which essentially said "bring it on, we're done here".

Will the court look unfavourably on my not waiting 14 days? i appreciate I may have acted in haste, and anger, but while I might not have followed protocol, surely the law is on my side?

Is this 14 day letter necessary if after a week of negotiation, his response is: "I would prefer not to receive anymore communications from you. If you want to take me to court, fine. I'll see you in court."

Did he put that in writing? If so, then He's in very hot water. You have a qualified mechanics report, plus the dealers complete reluctance to meet payment. To me at least it sounds like he is one of those dodgy car dealers that takes cars in, doesnt check them apart from very basic checks, then sells them on.

Have you checked to see if he's done similar to anyone else?

I think that you will be advised to write him the letter – even if he has made the above statement you in writing. If you got in writing then you could shorten it to a seven day letter before action. In that case, set the letter out as I have suggested above but also put that in view of his message to you that he doesn't want to receive any more communication and that he will see you in court, you are now giving him only seven days notice before you will do precisely that.

Just a thought for the op:

The cra doesn't give absolute right of rejection and with mechanical and electrical 2nd hand goods, one needs to be a bit reasonable.

A gearbox, a clutch, brake discs, tyres, rims, power steering systems etc can all be damaged in a day.

So my question to the op is: Does the specialist report clearly states that the fault must have been present before you bought the car?

Or does it simply state that there's a fault?

I ask this because if every dealer had to fix every fault that appears within 6 months, there would be no more used car market.

I think that the dealer's offer to pay 50% of the bill should be considered carefully.

If you really believe that you have a guaranteed win in court and that you will be able to enforce a ccj (most importantly) then go for it.

But if there's any chance that things won't go exactly as you hope, maybe you should take his 50% offer into consideration.

Remember, the used car market has always been a gamble; one could end up with a lemon or with a very reliable car to be enjoyed for many years.

I had both experiences and I understand that you feel frustrated and angry, but that's the risk of buying second hand.

Just a thought for the op:

The cra doesn't give absolute right of rejection and with mechanical and electrical 2nd hand goods, one needs to be a bit reasonable..

I'll respond to other posts when I get home. Yes I appreciate this, but the mechanic, his third party transmission specialist and the independent assessor have all said that you can't physically do something to the car in 20 days that would cause the bearings to wear away. By all accounts, the gearbox was faulty at the point of sale. Seriously faulty.

What is less certain is whether or not I (or he) could have spotted it. This is another question I have. Because a fault is not detectable, but still exists, does that affect your rights? He's arguing it was unreasonable to expect him to spot such an issue. But if my TV blows up, the trader can't argue that they don't have a degree in microchip manufacturing.... right?

No. The fact that he couldn't be aware of the fault does not affect your rights. He has a strict duty to provide you with goods which are of satisfactory quality and which remain that way for a reasonable period of time.

I misspoke earlier. He said, if I was unwilling to discuss the matter over the phone, then he was unwilling to discuss it any further via email. I was advised by Citizens Advice to keep everything in a recordable format; hence declining a phone call, where he could twist my words - and this pushed him to cease further communication.

His argument is as follows: "At point of test drive and subsequent handover there was absolutely no evidence of any issue with the gearbox whatsoever, of this you can only agree. The only indication of any mechanical wear would be for the gearbox to be stripped and tested before sale, this is unrealistic and uneconomical"

He goes on to say:

"You have covered 1910 miles in your ownership and it is clearly evident the component in question is suffering from general age and mileage related wear, something that is NOT covered by the Warranty agreement provided to you."

He seems fixated on the third party warranty, and my argument is - it's precisely because the third party warranty WOULDN'T cover it - because it wasn't some sudden failure - that he is liable. It is true that the car has done a fair few miles in 20 odd days, but all of the professional opinions I have (other than his) indicate that it really makes no difference. The fault was there for many many months.

So of the three criteria, it seems 'fit for purpose' is the most obvious one? We paid above average price according to car valuations that I have run. Close to £3000 for an older car with relatively low mileage. Surely even a well paid court official would assume that £3000 would get you more than 20 days of use?

I think that you will be advised to write him the letter – even if he has made the above statement you in writing. If you got in writing then you could shorten it to a seven day letter before action. In that case, set the letter out as I have suggested above but also put that in view of his message to you that he doesn't want to receive any more communication and that he will see you in court, you are now giving him only seven days notice before you will do precisely that.

In response, to be clear - I have already issued a claim. I have just reviewed the pre-action conduct, and while I gave him neither 7 or 14 days, I believe I met the criteria.

"the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated"

I did exactly this. His response was "I am totally comfortable that you wish to proceed legally on this matter"

The objectives of pre-action conduct and protocols:

3. Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—

(a) understand each other’s position;

(b) make decisions about how to proceed;

© try to settle the issues without proceedings;

(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;

(e) support the efficient management of those proceedings; and

(f) reduce the costs of resolving the dispute.

Again, we understand each other position, we have both TRIED to settle the issue outside of court, I've offered all alternative paths available, as long as they ultimately lead to covering the repair costs. He has communicated well throughout the process but we have reached a dead-end. I'm saying my only course of action at this stage is court and he is saying 'fine'. Why do I need to wait 7 days when we both have confirmed our stances?

... the mechanic, his third party transmission specialist and the independent assessor have all said that you can't physically do something to the car in 20 days that would cause the bearings to wear away. By all accounts, the gearbox was faulty at the point of sale. Seriously faulty.

Very important: Did they write exactly this in their report, or they just "said" it?

Did you pass this report to the dealer or you just told him about it?

A court will not be entertained with hearsay and most likely the judge won't even know how a gearbox looks like.

In the report (not really a report as much as an invoice), the mechanic simply stated the fault. This information was passed on to dealer. They told the dealer over the phone, and myself, that it was their professional opinion, that the fault existed for a long period of time.

The independent assessor has not yet presented his findings in the form of a report, but based on the evidence I have provided, has said that his findings will likely mirror what was said by the mechanic.

The mechanic has also said that he will provide a signed statement, to this effect - but I do not have this yet. The reason I have commissioned an independent report is because I understand that a man being paid for repair doesn't have the same credibility as a registered independent engineer.

EVERYTHING I have said to the dealer has been in written format.

Edit: By the time this is assigned to a track, I hope to have written statements from everyone involved. Whether I will be allowed to use it as evidence, I don't know??

Just hope that the engineer writing the report states that it was present at time of purchase in his professional opinion...

Could someone please provide me with an educated answer on my 'expert evidence' issue?

We haven't got to the questionnaire stage yet,

so I haven't got approval to use an expert report at this stage.

But as I see it (see all of above), our case hinges on having a report in the first place.

I'm more than happy to pay for it

- I'm not seeking to reclaim the costs

- I just want a piece of paper from an independent engineer which provides an objective opinion on the issues, as it either makes or breaks my case.

Assuming a report from a professional of a registered body backs up what was said by the mechanic - why on earth would I not be allowed to submit this as evidence?

You will be allowed to submit the report in evidence, the problem is finding an engineer who would write that the fault was present at point of sale.

Could someone please provide me with an educated answer on my 'expert evidence' issue? We haven't got to the questionnaire stage yet, so I haven't got approval to use an expert report at this stage. But as I see it (see all of above), our case hinges on having a report in the first place. I'm more than happy to pay for it - I'm not seeking to reclaim the costs - I just want a piece of paper from an independent engineer which provides an objective opinion on the issues, as it either makes or breaks my case.

 

Assuming a report from a professional of a registered body backs up what was said by the mechanic - why on earth would I not be allowed to submit this as evidence?

You need to make sure that the expert engineer is familiar with preparing reports for the Court and knows CPR Part 35.

You will need to ask the Court for permission to rely on the expert engineers report in your Directions Questionnaire.

Thanks. I got the report today and he seems to know what he's doing. He finished with: "This Engineers report is addressed to the court and is prepared in accordance with the requirements of the Civil

Procedure Rules, I understand my duty to the court and have complied, and will continue to comply, with that duty." etc.

You will be allowed to submit the report in evidence, the problem is finding an engineer who would write that the fault was present at point of sale.

"..it is my professional and unequivocal opinion that the degree of wear to the transmission existed in the vehicle and was present prior to the purchase."

Think that ticks the box?

Perfect!

Dealer is stuffed.

Pass this report to him and if he's got any sense he will pay for the repair.

Unless he's planning to shut the company down and open next day under a different name.

Does your purchase receipt mention a limited company?

No, he's operating as a sole trader (I know, not great), but he has en established business that sells plenty of cars. I've checked and double checked and the a sole trader with an established business is still a 'trader' under the CSR.

(gulp)

Part of me thinks I should give it to him now, try to settle (again) as quickly as possible, but the other part of me says, if we do go to court

I should give him as little time as possible to prepare a rebuttal.

I know he'll get to see it as part of disclosure, and at that point, I'd be open to settling before the hearing, but if I send it to him now, aren't I just giving him a head start on my case?

Or have I watched A few Good Men too many times?

"THE TRUTH? ...."

You should give it to him now.

If he sees the report now he will know that there was definitely a fault at point of sale.

The fact that he's a sole trader is a good thing imo because he's personally liable in case of a ccj.

You need to act transparently so he cannot claim that he had no substantial prof of the fault.

Surprise witnesses and last second evidence are better suited for American legal movies

Well... that didn't work. He said I didn't provide him with enough documentation when the event occurred (which is nonsense, I provided him with digital copies of everything I had - a diagnosis and invoice from the mechanic - and the AA breakdown report) - and so he will be filing his defence, and if I want to see it, I can get a copy from the court.

You have followed the correct procedure and have given him every opportunity to remedy.

The judge will see this as reasonable behaviour and most likely rule in your favour.

Got to be patient now and go through the motions.

Hi folks,

I'm taking a used car dealer to small claims court and I've just realised that I've missed the cut off for the 'hearing fee'. I didn't even realise there was a hearing fee until just now.

The paperwork states: 'The fee is payable by 14 April (now 18th) by the claimant unless you make an applications for a fee concession. Failure to pay the fee will result in the hearing being removed from the list'

Does this mean the case has been dismissed and I've lost? Or is there something I can do to progress? I'll call the court tomorrow, but I'm panicking that I've messed my chances up.

Thanks

Edit* meant to start this as a fresh thread but it somehow seems to have been tagged onto my original one (same case!).