HNY everyone, really sorry about the long post below I've tried to make a short version
My friend took his car to a garage for repair, whilst there he enquired about a car parked within a garages compound, he was told price (£10,000), spec etc.
Months later he contacted the garage to see if the car was still for sale as he wanted to test drive the vehicle, he was told the car had been moved to one of the garage owners driveway as they needed the space
He went to the house to test drive the vehicle but it was his business partner that took him on the test drive on two occasions
He agreed to purchase the car, no paperwork verbally agreed to pay £3000 deposit then £1000 P/M, car to be kept by garage until my friend had paid £8000.
Car was collected on July 21, the car entered limp mode the next day, which was repaired but the car subsequently had other defects that amounted to more than £2800 that was bought to the attention of the garage
Over a period of 8 weeks, my friend left the car with the garaged on 7-8 separate occasions and nothing else was ever repaired
My friend sought advice, he was advised to write a formal letter by registered mail stating his right under the Consumers Rights Act 2015 to request repair of those defects.
In the garages response letter, his right to request repair was ignored, the garage said the CRA 2015 did not apply as it was a private sale 'on a sold as seen basis' as both owners were working in their 'private capacities'
My friend sent a second letter reiterating the points of his first letter but stated under Section 2.2 of the Consumers Rights Act 2015 it states, a trader is defined as “a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf”. he notified the owner that according to Section 2.2 of the CRA 2015 it was clear that the garage remained liable even when acting in their ‘personal capacities’.
No further letters were received by the Garage so my friend sent a letter before action giving them 14 Days to agree to use an Alternative Dispute Resolution Body (as advised by Consumer Direct) or acknowledgement of an intended settlement of the amount claimed within 14 days of receipt of the letter and full payment within 21 days of receipt of the letter.
My friend received no formal response so he issued a claim against both Defendants (POC below)
Both defendants have defended the claim against them (details below)
My friend has received a Direction Questionnaire that has to be returned by the 11th Jan 22
Would it be possible at this stage to make an application to strike out both Defendants defences on the basis that even though they are now claiming it was a private sale they still have no prospect of success as both Defendants were still acting for purposes relating to their trade so breached their obligations under the Consumers Rights Act 2015
My friend purchased a BMW X5 from a garage in Northampton Sulemanji Auto Engineers / SW Auto Solutions (it's one garage with 2 trading names) for £10,000. Had my friend told me he was going to purchase a car from this garage I would have talked him out of it, which is why I wasn't shocked when my friend contacted me about the vehicle he purchased and the troubles he was having with the garage, it’s the kind of garage that you bring you car to repair one problem but it leaves with another new problem, so you just keep going back.
He originally inquired about a BMW X5 in December 2020 when he brought his vehicle to the garage for repairs, he had a van, it was making some unusual engine noises, he took it to the garage and the garage said it needs the timing belt change, but its ok to drive it, just don't drive it too hard (how about don't drive it at all!) until they could get it booked in, instead of a cam belt change my friend had to have an expensive engine repair as the cam belt snapped.
When he brought his van to the garage for repairs the BMW X5 was parked in the compound of the garage, he asked one of the owners if it was for sale and he said it was, the owner also told him the price and specification etc. The alloy wheels were in a visibly poor condition the owner said they were going to refurbish the wheels before the vehicle was sold, my friend also noticed that the rear suspension was lower than the front, the owner said that this was normal until the car had been started, he also said the car would come fully serviced with 12 months MOT. At no time whilst my friend was at the garage discussing the car did the owner mention that the car was owned by someone else or he was selling the vehicle on someone else's behalf.
In February 2021 my friend contacted the garage to see if the vehicle was still available, he told him that it was, my friend told him that he wanted to view the car again and also to take it on a test drive, the owner told my friend that he had to park the car on his driveway as he needed the space at the garage. The owner sent my friend his address and they arranged a date and time for the test drive, my friend took the vehicle on a test drive, on both occasions the owner's colleague (the other Defendant) met my friend at the owner's house and took my friend on the test drive.
in May 2012 my friend agreed to purchase the vehicle, he told the one of the owners that he wouldn’t be able to pay the full amount in one go, he told the owner that he could afford to pay £3000 deposit and then £1000 every month, the owner accepted and said he would keep the car until my friend had paid £8000, then my friend could take the car and pay the rest when he had it. (knowing from other friends experiences this would be normal practice for the garage, especially if you are paying in cash, if you have car repairs done you can take the car and pay in instalments as he demonstrated with my friends repair bill for the van) My friend wanted to pay by bank transfer every month but the owner insisted on cash payments, every time my friend asked for a receipt he was told one would be sorted, what he received was the garages compliment slip stating the amount he was paying at the time.
In July 2021 my friend had paid £8000 and arranged to collect the car, on 17th July the owner presented the car for MOT at another garage he told my friend via text he also did work at, the car passed without any advisories, on 23rd July my friend collected the car, on 24th July my friend travelled to Manchester and on his return, the car entered limp mode, my friend contacted the garage owner and told him the issue and he told my friend to bring the car back to the garage on his return. My friend took the car to the garage and the owner replaced the EGR valve. Whilst he was at the garage my friend questioned the issue about the rear suspension sagging it would not stay raised overnight the owner said this was normal but he would inspect it again.
Over a period of 8 weeks, my friend took the car back to the garage and left it there on 7-8 occasions for a tapping noise coming from the rear, the rear suspension sagging when parked overnight, an inoperative windscreen washer but nothing was ever fixed and he was just given excuses, parts not arrived, parts out of stock etc, etc.
In Sept my friend took the car to BMW for a recall, the Defendant had originally told my friend about the BMW recall but didn't give him the letter from BMW as promised, every time my friend asked for the letter he just gave him excuses probably because the letter was addressed to the previous owner?? Whilst at BMW they offered my friend a free complimentary BMW Health Check and on inspection, they noted the following issues below
1. Exhaust – Earth Strap Split £106.12
2. OSR Tyre – Perished & illegal due to cords exposed £315
3. NSR Tyre – Perished & illegal due to cords exposed £315
4. OSF Drop Link Boot – Split £1,833.66
5. NSF Suspension Coil Spring – Snapped £403.21
6. OSR Suspension Dropping & CV Joint Leaking Grease – Needs Further Investigation
7. NSR Suspension Dropping & CV Joint Leaking Grease – Needs Further Investigation
8. Engine Oil Leak – Needs Further Investigation
9. Noted in BMW inspection video but not on the quote - Front windscreen washer jets weak
The quotation for the repair was more than £2972.99, not including the cost of the repair for the suspension, my friend sent a video report to the garage owner via txt and went to see him, my friend asked the owner how did the car pass its MOT with the illegal tyres, broken spring and inoperative windscreen washer, the owner became evasive and directed my friend to ask his colleague about the car.
As the garage refused to do anything about the tyres, suspension and windscreen washer motor etc my friend withheld the remaining balance of £2k and sought advice and he was advised to write a letter informing the garage of his statutory rights under the Consumer Rights Act 2015, he was informed that the period to reject the vehicle had passed but he had the statutory right to inform the garage that the car was not as described and not fit for purpose and any defect discovered within 6 months were deemed to have been there unless the garage could prove otherwise. He was advised to allow the garage an opportunity to repair the vehicle, my friend sent the letter on 11th October 21
The garage wrote back to my friend within the 14 days and he was shocked when he read a fabricated sequence of events that now included a deal between my friend and mysterious 'seller' of the car who my friend has never met or spoke to, and the garage never mentioned that they were selling the car on behalf of someone else.
The garage owner was now claiming in the letter that it was a private sale, he stated in the letter that my friend had asked him if he had a car for sale and was now claiming that he told my friend that he had a car parked on his driveway (half the truth, yes my friend test drove the vehicle at his house but he originally enquired about the vehicle when he was at his garage) that he was selling for a friend of his family, my friend then came to his house to test drive the car and it was made clear to my friend by his colleague (the other Defendant) that it was a private sale on a 'sold as seen basis',
he insinuated in the letter that my friend had agreed the sale and payment terms with his friend of the family so the Consumers Rights Act 2015 did not apply as he and his colleague were working in their 'personal capacities' and the sale had nothing to do with Sulemanji Auto Engineers or SW Auto Solutions, the owner also stated that my friend should either pay the outstanding balance of £2k or he could return the car within 14 days and he would refund £8k less any damage and any wear or tear.
My friend wrote back within 7 days denying his fabricated sequence of events and denied he had ever had any communication with this seller, he asked the owner to confirm
Whether or not the BMW X5 was parked within the compound of Sulemanji Autos at any time between the 1st -11th Dec 2020,
To confirm the approximate date and time when he allegedly agreed on a price and payment terms with the ‘Seller’ and how contact was made
(As he was now claiming it was a private sale) To provide the name and address of this seller
On receipt of the information, he requested he would respond to his letter within 7 Days.
The owner responded by letter, he ignored all of the questions and stated that he was comfortable with the contents of his first letter and reiterated that it was a private sale to pay the balance or return the car for a refund, my friend wrote back with a letter before action stating that he was taking the matter very seriously stating that the owner and his colleague had fabricated a sequence of events in an attempt to try to restrict my friend's statutory rights and evade the garages obligations under the Consumer Rights Act 2015.
My friend stated in the letter that despite the garage now claiming it was a private sale their actions proved otherwise as he brought the vehicle back to the garage on at least 8 occasions at the owners request and at no time did they refuse to look at the vehicle, nor did he receive a phone call, text or letter reminding my friend of the owners claims that the sale of the vehicle was a private sale on a ‘sold as seen basis’.
My friend also stated in the letter that although the owner and his colleague now claimed that they were working in their 'personal capacities' under Section 2.2 of the Consumers Rights Act 2015 a trader is defined as “a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf”. he notified the owner that according to Section 2.2 of the CRA it was clear that the garage remained liable even when acting in their ‘personal capacities’.
He stated that he wanted to avoid going to court and gave the garage owner 14 days to acknowledge agreement to use an Alternative Dispute Resolution Body (as advised by Consumer Direct) or acknowledgement of his intended settlement of the amount claimed within 14 days of receipt of the letter and full payment within 21 days of receipt of the letter. After the letter was signed for my friend received a text from the owner saying "I have asked numerous times to return the vehicle that you say it's not ready (makes no sense) will gladly refund your money prior any damages to the vehicle, now taken legal advice and will let the court decide thanks".
The letter my friend sent addressed to both Defendants was dated 18th November 21, it was signed for on 19th November 21, they were given 14 days to respond, you will later go on to read below that within the 14 days they were given to respond one of the Defendants claims to have issued a claim against my friend for the outstanding balance on 28th November 21, although my friend has not received any paperwork?? He only learnt of the Defendants claim against him when he received their filed defence, he will have to contact the court asap if it has been issued and not received
As mentioned in the short version, would it be possible at this stage to make an application to Judge to strike out both Defendants defences on the basis that even though they are now claiming it was a private sale they still have no prospect of success as both Defendants were still acting for purposes relating to their trade so breached their obligations under the Consumers Rights Act 2015?
Any help or advise would be greatly appreciated