Good evening

We would appreciate your advice please.

A friend bought a second hand car from a dealer and as she drove it away, she noticed a smell of burning but initially dismissed it because it was apparent that the car had been valeted inside and out and she believed it to be the heated seats drying or the engine maybe drying off from a clean.

Over the next few days, the smell remained and the lights, heated seats, rear wiper and other electrical things started to fail. She contacted the dealer who requested she fetch it back but as the issues deemed the car unfit for the road and potentially dangerous to her kids; she requested he collect it.

He recovered the vehicle and later advised her that it was due to an electrical plug being 'kicked off' under the glove box and blamed my friend for this and then attempted to charge her for the recovery plus the repair.

Having sort some advice; she advised him that under the Short Term Right to Reject under the Consumer Rights Act; she wanted her money back as she had lost faith in him and the vehicle but he has declined and has only offered to pay the recovery as he believes this is all her fault!

To date she has advised the DVLA that the vehicle is not hers and the garage (as far as we are aware) still have the vehicle.

She bit the bullet and has commenced small claims proceedings to which he is trying to go for mediation because it's free (which we don't believe it is) and she has now received a letter from his solicitor which appears to be designed to scare her.

I attach a copy and would respectfully ask for your comments please.

Many thanks

Lambo

What date did she take delivery of the car and what date did she assert her short-term right to reject?

Thanks you BankFodder

She took possession on 24th November and sent a letter of rejection on 5th December

If you post up any more documents, please will you post up in PDF format.

So the only possible defence is to show that the defect did not exist and it was a problem caused by you – in this case the dislodging of an electrical plug.

What you want to say about this?

I gather also that your friend it did actually agreed to allow them an opportunity to repair and only subsequently decided to exercise her short-term right to reject. Is this correct?

She used the vehicle as it was intended and if anything was kicked off, she was unaware of it. Nothing was obviously hanging off or broken!

How can they prove it wasn't there at the point of sale? She believes in hindsight it was because of the burning. Also the mileage must've been mis advised because there was no way she did nearly 650 miles!

Had the dealer corrected it at his own cost; she would still be in it! The fact he tried to palm it off as her problem; caused this!

at no time when he recovered the vehicle was she advised that any repair would become her financial responsibility so yes he had an opportunity to repair. She only rejected when he charged her for it

Yes, reading your initial post I now see that there was an attempt to charge. Could you please tell us about this. Is there any written evidence of it?

Also, I have to say that if your friend had inadvertently dislodged a plug, even though she was driving in the normal way, this would not point to a defect in the vehicle – and the seller would be correct to challenge the exercise of the right to reject.

Also, in that case it would not seem unreasonable to apply a charge to carry out a repair on a problem which was caused by the owner of the vehicle. I have to say that it seems to be rather harsh treatment of a new customer – but at the end the seller would be technically correct.

She must've had one prior to this but he emailed this on 8th December

" WITHOUT PREDUCE.

As a gesture of goodwill I have now paid the collection costs and now expect you to collect and pay the outstanding invoice of £115.20 inc vat to conclude this matter.

The Vehicle is at:

s

Thank You "

Okay, assuming that it is the dislodged plug which has caused the problem, it all turns on whether a court well accept that this was an existing defect or whether your friend dislodged it.

In this respect you need to understand where the plug is in the car – and also is it a plug which is simply a push fit or is it clipped/locked in. Many plugs are fixed in place in this way inside motor vehicles.

In terms of the short-term right to repair, the solicitors correct that by acceding to a repair, she has effectively interrupted and suspended her short-term right to reject. However, this would be overridden if the defect was not a defect which already existed in the vehicle was a problem caused by herself – even if she was using it in a normal way.

Ideally you would need to be able to go and inspect the vehicle and in particular take pictures of the dislodged plug so that you could understand its position and whether or not it would become dislodged in normal use – and also whether it is normally a plug which is locked into its socket in some way. If it is a plug which is clipped in then you might well be able to argue to a court that it wasn't clipped in at the time and therefore it was a "defect".

As much as I hate to say it, without knowing more about the plug, its location, and how securely the plug and the socket are joined together, the solicitor makes a strong case and I'm afraid that I think that your chances of succeeding in the County Court are maybe only 55% to 60% – and these are not odds that I like very much – and if you had come onto this forum first I would have not advised you to begin a County Court action without checking up some of the things which I have suggested above to improve your chances.

I suppose this puts you in a very difficult position because you will have incurred quite a substantial claim fee for this value. If you proceed then you will also incur a hearing fee. You have been offered mediation and although I would normally advise against mediation I think that on this occasion you would do well to accept it on condition that you were allowed to inspect the vehicle and in particular inspect the plug which has apparently now been properly secured. Get good photographs. Unplug it – take photographs, re-plug it – take photographs, test it to see how easily the plug would become dislodged from the socket if it had initially been properly implemented.

If you eventually are able to show that if the plug had been properly secured then there was no chance of it being dislodged by driving in a normal fashion, or if you are able to show that the location of the plug is such that it would be not possible for a driver's feet or legs to interfere with it, then your chances of success in the County Court would improve enormously.

On the basis of a mediation settlement, it seems to me that if you do go to mediation then the best thing you could negotiate would be for the seller to waive all charges for the repair and for you to take the car away and for you to begin your relationship again. Part of this would be for the seller to agree that the time for the short-term right to reject would be reset so that you would have a further 30 days from the time your friend drove the car away after the mediation.

Certainly, if there were any further defects of any kind developing within that 30 days – or even the six months, I would waste no time in attacking the dealer very hard. However, this time I would be much more careful about the way I handled it. I'm afraid that I think that you have given ground here and you may suffer some consequences – although they will be relatively minor.

Just to add, – there are very few modern cars that I'm aware of which have part of their wiring loom or plugs and sockets dangling down into the driver's foot well. This is the kind of thing they used to happen with cars in the 1960s and may be in the 1970s.

Those were the days when thieves could get into your car and a hot wire it under the dashboard. Not very easy nowadays

So from that point of view I'm very sceptical about the dealer story – but you will need to get proper detailed photographs of this plug.

If it turns out that the plug was dangling down then maybe it had come away from under the dashboard and of course this itself would be a defect

Thank you BankFodder

We did actually ask a friend who was in the know and he said that the plug should be secured in place and there should also be a cover over the top to prevent such an incident and it's annoying that at no time was she given an opportunity to yay or nay any costs.

In view of your comments, maybe it would be prudent to outline to the solicitor the fact that the outcome she is prepared to settle on, is to reset the clock and rights as advised and that the repair bill should be paid by the dealer. Failing that, could he make the vehicle available for inspection?

First of all I wouldn't explain to the solicitor what it is you are looking for in the vehicle.

Simply say that before you are prepared to agree anything, you will require to inspect the vehicle and in particular the area which you consider was defective and which the dealer considers was as a result of some action by the driver.

Say also that depending on the outcome of that inspection you may be prepared to enter into mediation that you will let them know of your decision after the inspection.

Make it clear to them that if they will not permit the inspection that you will proceed to apply for judgement against them if they do not file a defence within the allotted time.

I wouldn't say much more than that. Come back here when you have inspected the vehicle and you've got some good photographs and you are able to describe exactly the location of the plug and also the way that the plug/socket is implemented.

You can then deal with the business of accepting or rejecting mediation as a next step but consult with us first.

Incidentally, don't ask them if you can do things. Tell them that you require that they allow things to happen.

You don't need to get aggressive with them at this point that you need to use phraseology which shows that you are in control. You want to try and dominate the situation to a certain extent

You say that there should be a cover in place to prevent this kind of thing happening. Obviously you will take note of whether or not such a cover is installed on your vehicle. It would also be helpful to find another similar model and to photograph the cover and the plug and wiring loom so that you have comparative photographs if eventually you need to go to mediation or need to go to court.

You're quite right Bankfodder. It would be a great help if we knew what vehicle it was, how old and how many miles. None of this is stated. If the car is relatively new and a diesel especially within the new EU6 emissions regulations you will get funny smells from the usual. Totally miffed with the diagnosis. I reckon on the balance of probability the car might actually be performing as it should.

You're quite right Bankfodder. It would be a great help if we knew what vehicle it was, how old and how many miles. None of this is stated. If the car is relatively new and a diesel especially within the new EU6 emissions regulations you will get funny smells from the usual. Totally miffed with the diagnosis. I reckon on the balance of probability the car might actually be performing as it should.

Of course this is all nonsense – partly because I didn't say any of this, and partly simply because what you say is completely irrelevant. It's clear that so far the dealer considers that he has identified the fault and it has nothing to do with any of the things that you seem to have plucked out of the air. The dealer admits that there is a fault and the dispute is merely over whether the fault existed when it was sold or whether it was caused by the driver. The dealer claims to have repaired the fault now.

Also, because the vehicle apparently only cost about £4000 it could scarcely be a "relatively new" vehicle – either that or it was an amazing bargain.

Thank you for your advice.

Firstly, the vehicle is a 2009 Ford Focus and I presume failing lights, heated seats and burning smells etc are not normal on this vehicle so in order to move forwards, we have written the following to the solicitor. Will it do?

" Further to your letter of 23rd January 2019; before any agreement or possible mediation can be considered, I respectfully request access to the vehicle in order to inspect the area in question. If this is unacceptable, I will proceed to judgement should the defence is not submitted within the allotted time.

I look forward to hearing from you by 1st February 2019. "

Secondly, I attach some images to give you an idea of how difficult this switch would be to kick off! (Presuming at this time that this is to what they are referring) and if it helps, we do have witnesses to the burning smell that was apparent when the vehicle was collected.

The first image shows the switch which is covered and locked and the second image shows the cover that should have been present (which we presume wasn't there). This unit is secreted behind and under the glove box and would be difficult but not impossible to dislodge if the cover was missing.

Having spoken to a Ford technician, we have established that this type of fault is not uncommon and anyone in the know should have assumed there was an issue with this area and corrected it with minimal time and cost. This could have been corrected over a telephone technically and as you stated earlier, the dealer should have just put this right and this scenario would be non existent.

Your trusted thoughts would be gratefully received please

footwell pdf.pdf

footwell cover pdf.pdf

Thank you for your advice.

 

Firstly, the vehicle is a 2009 Ford Focus and I presume failing lights, heated seats and burning smells etc are not normal on this vehicle so in order to move forwards, we have written the following to the solicitor. Will it do?

 

" Further to your letter of 23rd January 2019; before any agreement or possible mediation can be considered, I require access to the vehicle in order to inspect the area in question otherwise I will proceed to judgement if the defence is not submitted within the allotted time. If you proceed to file a defence then in any event I shall still require an opportunity to inspect the vehicle and if I am obstructed in this then of course this will be reported to the court at the hearing.

 

Yours faithfully

 

Sign

"

 

 

 

 

I have no idea why you want to use all this "respectfully" stuff. I think you need to stand up for yourself a bit more robustly. I have suggested some amendments to your letter in red

If you visit your car and you find that the cover is missing then I think it is a reasonable argument to say that that is a defect. Clearly they should have been a cover in place and although on an old used car, there might be bits of trim missing et cetera, these will be purely cosmetic. The cover which protects the electrics which you have demonstrated in your photographs is clearly more than merely cosmetic. It is functional and it exists precisely to protect the electrics from accidental dislodging by somebody's legs.

If the cover is missing then you should make sure that you take good photographs of this and then I think that your position will be that the car is defective because an essential protective cover was not in place and because of this you are entitled to the benefit of the consumer rights act short-term right to reject.

If you visit the car and you find that the cover is not there then if I were you I would even reject the mediation. If you find the cover is not there then we will help you prepare a letter to the other side and make it clear to them that this will be argument in court and that they will be best off settling in order to avoid any further expenses.

I think that your argument that they could have carried out the repair more quickly and more cheaply or even by talking about it over the telephone is unhelpful to you and it almost sounds as if you are prepared to throw in the towel.

I don't think the argument would succeed and if I were you I would forget it and don't refer to it again.

Thank you BF, apologies regarding the attitude of the dealer; more of a moan than assuming it to be ammo.

I will submit this letter by email and post today.

Many thanks

We have received a reply as follows:

"Thank you for your letter dated 25th January.

For the avoidance of doubt, a defence will be filed and served in advance of the 18th February.

My earlier email/letter was merely an attempt to set out my clients position (albeit defence) now so that we could attempt a resolution sooner rather than later.

In other words, by giving you some advance notice of what the defence is likely to be, it may pave the way to a settlement. By settlement, I mean that the vehicle is returned to you and the claim dismissed.

Turning now to your proposal to inspect. Could you explain why that is required? What do you seek to gain from viewing the area in question? By area, I assume you are referring to the electrical plug but please confirm.

I look forward to hearing from you."

What would you recommend as a fitting response please?

lb

They're idiots. I suggest you send the following letter recorded delivery and by email if you can:

Dear Sir/Mdm

 

Your letter of the XXX date refers.

 

I gather that you are effectively refusing to allow me to inspect the vehicle.

 

For the avoidance of doubt, this is my formal request to inspect the vehicle. If you will not allow me to inspect it then the court will be informed of this fact at the hearing. In any event, your reluctance and delay in allowing me access to the vehicle is noted and will also be communicated to the court.

 

As you can imagine, I wish to inspect it in order to collect additional evidence as to the condition of the vehicle.

 

If it is your position that there is no defect in the vehicle and therefore I am not entitled to reject it under the Consumer Rights Act then you are effectively saying that the vehicle still belongs to me (which I deny) and so it then becomes extraordinary that you are apparently restricting my access to inspect what you appear to say is my own vehicle.

 

If you do not allow me to inspect the vehicle then this will be further evidence that you have accepted my rejection of the vehicle and in that case I am mystified as to why you are not let me have my refund.

 

I expect the court will be similarly puzzled.

 

Yours faithfully

Fabulous!

Consider it done!

Thank you!!

Unless that plug was already lose even a sharp kick wouldn't take it off. They have retainer clips on them to make sure they stay in place. On my first car that had a very similar set up to this and it was a real ball ache to get it off, also the fact that where the connector is you would have trouble getting a square kick too it.

So either it was lose at sale or they are talking rubbish, a good idea would be to get the pin out of that connector and see if it co-insides with what started to die out on the car.

Also another note, if it was like my old car it detaches bottom of the connector first towards you so the complete opposite way you would naturally accidentally kick it.

Our thoughts entirely PIXeL_92!

It would really only be possible for a contorting-muscle-ripped-toddler and my friend's kids are a lanky 14 yer old and an average sized 11 year old.

Not totally impossible but extremely unlikely.

We'll see..!

OK, they're not backing off!

Received notification from the court today that a defence has been filed (although we don't know what that is!) We can only assume it is as was sent to us the other day which I sent earlier to you.

No mention of us inspecting the vehicle but we do have access to some professionals that may provide written evidence of how easy/difficult this accusation would have been?

Please help!

Please will you post up the claim form in PDF format and also when you receive the defence, post that up in PDF format as well.

I notice that you are posting documents in JPEG format. Please will you use PDF