Advice/Guidance- Bought a Faulty Car **Updated**

[Top Dog]

Hi All,

 

I wanted to seek some advice and guidance around a situation I find myself in, I recently (3 weeks ago) bought a new car worth £6700 (I part exchanged my previous car and paid £4200 in cash). After the first few days I noticed excessive vibration and various faults with the engine, I took the car for a diagnostic (which cost £50) which revealed 8 error codes on the computer. I spoke to consimer direct (and logged a call) who said I was entitled to a refund or a repair. I rang the trader who said to bring it to him (200 miles away-cost £50) he would book it in to a mechanic, the trader initially stated it would take 2 days work which ended up to 3 days which caused great incovenience to myself ( I had to take 3 buses at a cost of £20 to end up at a relatives and stayed 3 days at a relatives with no transport).

 

On the 3rd day I was running out patience and suggested to the trader if he doesnt have my car fixed by 17.30 I would like a refund and my previous car back- I was then called by the trader and said all faults were fixed. I picked up my keys (left at a petrol station as mechanic was closing) and picked the car up at around 19.15. Within the car a note stated that the major faults were fixed and there was another issue with the car swerving when driving and the trader suggested (in writing) it was probabably a tyre or alignement issue. I drove 200 miles back at which point it was raining heavily and the car had little traction on the road and was swerving a lot and was really dangerous....

 

The next day I took the car for wheel alignement (£30) and had all wheels aligned the mechanic said that there appears to be some other reason for the swerving and should have it checked out. I then took it to a local garage who advised that all four bushes were worn out and that the car was not roadworthy and frankly dangerous in its current condition. To make matters worse the vibration on the car was still present. In fairness to the trader he had replaced the glow plugs and injectors like he said he would (well so I'm led to believe).

 

At this point I didnt trust what the trader was telling me about the car so I researched the car further (ie its service history) the car came with full BMW service history with all the stamps. When I rang the BMW garages they only had two service history records for the car. The car was advertised as 'good service records' and the trader showed the service book with all the stamps, these stamps are clearly fraudulant.

 

I spoke with the trader following this and stated I wanted a refund he again refused and said he would repair the faults and advised me to sell it on if I didnt like it.....I agreed to the repair but the day before finally had enough of the trader and asked for a refund. He stated for me to get some advice as he has done and he sent a letter to me regarding the vehicle. I spoke to consumer direct again (2 calls now raised) who said I could reject the vehicle, I am now awaiting his letter to repsond.

 

I spoke with the trader again and quoted the SOGA 1979 and he stated the car was fit for purpose as I had driven it more than 200 miles back home. I feel absolutely gutted and depressed with the whole experience and didnt even ask the trader to refund my expenses and costs to date only for him to take this stance. I am now willing to go to court if necessary....

 

Ok so my questions are I believe I can reject the vehicle under the SOGA on the grounds of:

 

- not being fit for purpose and dangerous (car swerving)

- not as described (service history issue)

 

can I reject on 2 grounds?

 

I was advised that to try and get a full refund may prove difficult and long winded and also cost more wherby as the amount is over £5000 I would not be able to use the small claims court. I want to claim for a partial refund to include:

 

- refund of £1250 for fraudulant service history (auto express believe F/S/H can add between 1000-1500 to the value of a car)

- expenses/cost incurred to date- £150

- inconvenience cost- £300 (being without a car for so long, its currently parked up and not in use, takes 6.5 hours to drive to the trader and back-more in trafffic)

- further bmw diagnotics- £100 (tbc)

- There will also be further costs associated with the repair and travel/inconvenience if the trader insists on using his own mechanic.

 

Do you think these costs are reasonable?

 

Ideally I want my old car back and full refund but dont want the additional expenses associated with court costs/solicitor fees and the time taken for court etc although I feel I have a pretty strong case but just feel small claims court will be easier.

 

Apologies in advance for the really long post....

[Bernie_the_Bolt]

Personally, I do not think that you can now, in law, reject the car. You should have done so before he attempted the first repair.

 

Some of what you are arguing may be misrepresentation and some may well be you falling foul of "buyer beware".

 

I think you have two options.

1) Write to the dealer setting out your complaint and give him 14 days to fix everything and propose a solution. If he fails get the car fixed and roadworthy and then write and request a refund of your costs and losses.

2) Write to the dealer and tell him that you are proposing to sell the car with an honest description and you will then be replacing it with something as close to your old one as possible and that once this has been done you will be suing him for what you are out of pocket unless he comes up with a satisfactory alternative, within 14 days.

[Top Dog]

Thanks Bernie,

 

Had I known I would not have had the first repair.....guess its a lesson learnt for myself...

 

So I will respond to the trader and ask for reimbursments for the costs I have incurred to date and in the future and also a partial refund for the car (as stated in initial thread) as the car was not 'as described'.

 

Do you (or anyone else) think I am entitled to the reimbursment costs I have outlined in the thread?- I feel they are reasonable....

[BrazilianCCK]

I think the two options bernie has laid out are the way to go - i don't think you will get anywhere on the service history side as it could be argued that the dealer records are just as likely to be incomplete as the stamps are to be fake - it's not like car service records are subject to a statutory code like medical or bank records. What you must do is keep the pressure up as both of bernies options place the onus on you to take action and then claim afterwards - the trader will see this as a bit of a let off as the problem is now something that might happen in the future, and will hope you will give up before it ever gets anywhere - so whatever you say you are going to do in say 14 days time, make sure that you do it and then put the pressure on for your next move.

[Top Dog]

Thanks,

 

For clarification I should write a letter stating that I want my car repaired (I feel the trader will agree to this) and once the repair has been completed I then put a claim to recover the additional costs (diagnostics/travel/inconvenience) I've incurred?- btw can I claim for these?

 

So I guess I have to take the hit of the car being bought as 'good service history' yet didnt have one even though service history adds 1000-1500 (as stated in auto express) to the value of the car

[BrazilianCCK]

Try and keep your expenses claim factual - the inconvenience side is a hard one to price, so set a fee per day and just claim x number of days at £x once you know how many days it adds up to - a good figure to chose would be what it costs to rent a budget car for a day off a national rental company - say £35/day - remember that you may end up putting this in front of a judge, and provided that you are being reasonable and can easily and simply justify the workings behind your claim, then you have a much better chance of getting what you want - in terms of diagnostics and travel, again just make sure you have all the records in terms of receipts and invoices. There is nothing to stop you in trying to claim for the service history side, but i think that you are least likely to succeed on that front

[Top Dog]

Thanks,

 

I just feel that traders should have a duty of care and although I guess I should have checked it out before buying but the same should apply to the trader ie they should check the service before advertising it.....like you've stated the law probably wont side with on that one.....

 

Can someone advise if I should do as I proposed earlier ie write a letter for repairs first once they've been completed the repairs satisfactorily then write a letter for costs/expenses incurred? or should I just write the one letter and include all the costs etc? -I'm worried if I do it all in one go the trader might get a bit annoyed (I know his feelings should be the least of my concern) but I want the car fixed properly first and foremost...

[Top Dog]

I am still awaiting the letter sent to me from the trader on the 03/09/10, should I await his letter (until tommorrow) and send my response? or should I write to him....I would have thought the letter should have arrived by now unless he sent it by 2nd class post?

[Top Dog]

Hi All,

 

The trader has sent me a letter with regards to the issues we've had and from his tone he seems reluctant to fix the 2 issues I have with the car (car swerving when driving and excessive vibration). He said he wil look into the issues and we can discuss where we go from there. I am concerned now having spent almost £7000 for the car I may have to foot the bill for these additional items which are expensive (hundreds of pounds) , if it was a small job I would have taken the hit....

 

He has stated that the bushes issue (car swerving) is a wear and tear item and he doesnt have to fix this item, hes also stated that it had an mot and was of a satisfactory condition at the point of sale. Is this true?

 

I've only driven the car 700 miles (600 of these to and fro the trader) and owned the car a month now am I still entitled to request the trader to repair these? After paying almost £7000 I would expect the bushes to be in working condition and for the car not to swerve and last at least 6 months....The car is currently not road worthy and frankly dangerous in its current state.

 

 

 

Please refer to my previous thread for background (Advice/Guidance Bought Faulty Car)

[Conniff]

It is up to the dealer to get the repairs done and MoT or no MoT, faults that appear in the first six months are assumed to have been there at purchase.

 

Write to him by recorded delivery and (make a statement, not a request) telling him that in accordance with the Sale of Goods Act 1979 the car is not of satisfactory quality and is not fit for purpose. Tell him that under the above regulations, you are giving him a chance to remedy the faults and that this does not take away your right to reject the car for a full refund at a later date.

 

Tell him he has 10 day to reply with a satisfactory response. If after the 10 days you have not heard from him, then you write again using recorded saying that if you do not get a response within a further 7 day you will take the car to the dealer to be fixed and present him with the bill, failure of which to pay will result in a summons being issued.

 

This is time consuming and a pain, but it you do thing in accordance with the regulations, then he will have nowhere to turn should he refuse to reimburse you for the bill if it gets taken to the dealer for repair.

 

Try to be diplomatic but firm in the first two letters, he might just be trying it on.

[Top Dog]

Thanks Coniff,

 

The letter he had sent was very informal and was describing the issues and what he had done and how he had spoken to consumer direct (which I too have done) etc etc, I was in the process of responding with an informal reply describing my point of view....Should I go with the formal approach from the outset ie please see below:

 

Sale of Goods Act 1979 (as amended)

On 08/08/10, I bought a BMW 320D from you for £6688 which is not of satisfactory quality.

The problems are:

• The car swerves when driving and has little or no traction on the road
  
• Excessive Vibrating (in particular when the doors are open)
  

I wish to claim a repair.

Please respond to my complaint within 14 days from receipt of this letter.

Yours faithfully

 

[Top Dog]

whoops meant to add

 

I wish to claim a repair and consequential losses occured as a result of the issues found within the vehicle....

The trader also argues that he fixed 6 of the 8 faults that were picked up by the initial diagnostic (which the trader had me conduct at my own expense), however these dont appear to be the root cause of the vibration issue that is still present.

[BrazilianCCK]

If he has said in writing that he is not going to deal with the bushes issue (but handily appears to acknowlege the fault) and he has already been given the opportunity to repair the engine vibration issue but failed then you have fulfilled your obligations under the SOGA in allowing the opportunity for him to repair the car and can now get the car repaired at a garage that you have confidence in and send the bill or reject the car - I wouldn't write claiming a repair. Personally, because of the vibration issue that sounds a bit ominous , I would reject the car - remember that if you choose to do this you have to stop using it as of the date you write the letter so make sure you have transport sorted before you do

[Top Dog]

I was advised that I couldnt reject the car and claim a refund as the trader had already carried out a repair? (on this forum my earlier post advice/guidnace bought faulty car). It was stated that I had accepted the car by the trader carrying out the repair?

[BrazilianCCK]

If the repair had been succesful then it would weaken your case for rejection, but as the problem has not been solved and you have additional issues then it does not affect your right to refund at all

[saintly_1]

Two threads merged please keep to one thread this enables people to see what has gone before and avoids confusion

 

 

Thanks

saintly

[Top Dog]

Im conscious that if I do reject the car I would have to go to court and pay court costs etc which can be a lengthy and costly process with no guarantee of the judgement going my way....the judge could argue that I should act 'reasonably' and give the trader a further chance to repair?

 

Also I've been advised with part exchanges it can get complicated....

 

At least with a repair I can reclaim the costs if need be through the small claims court (with minimal cost) and I didnt realise I could insist on using a mechanic locally? the trader in his letter stated I would have to use his mechanic as I did last time and he was doing this as a gesture of good will and then we will discuss any findings....ie he prob doesnt want to pay the cost of repair

[BrazilianCCK]

The old "three chances to repair" is a myth -there is nothing to stop you using his mechanic for a repair if you choose and have confidence in him, but you are no longer obliged to as the trader has had the opportunity to repair (vibration) and failed and then declined to repair (bushes) - you are making the assunption that he won't refund you and I suspect you are right, but you are at the point where you have to make a decision as if you either send the car back again and it's repaired succesfully or in particular you take the car to your own garage and get it repaired then you will be deemed to have accepted the car. The bit about goodwill is a red herring so ignore it - he knows he is liable to repair and is just trying to get you onside.

[Top Dog]

So regardless of the fact I drove 200 miles I still havent accepted the car?-this is contrary to what I was advised above (hence why I'm a bit confused).....

 

Still not sure what to do.....I want to reject but from the above comments wasnt sure if I was able to, hence why I wanted to get it repaired....

 

If I reject Im pretty sure he wont agree, I can't use the small claims court procedure I will have to go to court (a civil case I presume?) does anyone know what the process is for this? ie how long will it take? who to contact? approx costs?

[Bernie_the_Bolt]

I think it was me who said that I don't think you can reject. That is because you have allowed the trader to attempt to repair the car which, quite apart from the time elapsed is I think going to count against you..

 

In any event, to sue to recover your entire outlay would involve a claim over £5,000. As I understand things this will take you out of the small claims track where you have no protection against costs should you lose.

 

IMHO you would be better off forcing a settlement by keeping your claim below £5,000 so if you issue a claim you keep it in the small claims track.

 

Hence my suggestions in post no 2.

 

What you need to know is whether your actions so far would constitute "acceptance" of the vehicle in law. I've given my view, others may disagree but no one seems to have explained why. I do admit that I am influenced in my thoughts by the Bernstein case from the 80s (I think) but I also know that has been distinguished in more recent cases.

[Top Dog]

I guess its a matter of interpretation of the law....but ideally dont want to follow up a route that will be dependant on how the judge views the law, I've already spent 7k and dont want to spend any more unless I absolutely have to....

 

I wrote to the trader today and responded to his letter and disagreed with the majority of points he had made which I put in writing. I also formally requested for a repair and consequential losses incurred as a result of the purchase. I put in the statement 'that this does not take away my right to reject the car for a full refund at a later date'- again this will only become an issue if it is taken away for repair and the issue not resolved (as happened before).

 

I am awaiting his response but I am conscious that he will request for me to travel to him to get the car fixed (like I did before) but I have no faith in him being or his mechanics being able to diagnose (he previously asked me to get a diagnostics done and to bring the report with me) the fault let alone fix it......

 

I will await his reply and then decide which course of action to pursue.

 

BTW- I would like to thank you all for your assistance so far in this and wish me luck, I will keep you updated on the progress

[Bookworm]

Some people seem to be unclear about right to reject, so may I state the following two facts (with both act of parliament and caselaw saying so!):

 

a - the acceptance of repair does NOT automatically make you lose the right to reject the goods if they are still unsatisfactory.

 

b - there is no set time on how long you have to use the goods before they are deemed accepted and it will vary widely from goods to goods. The benchmark is "what the person on the street would consider reasonable"

 

 

To OP:

 

I wouldn't agree that having driven 200 miles is any indication that you have accepted the goods, and you definitely haven't accepted it because you agreed to a repair, so IMO your right to reject is intact. HOWEVER, if you are still using the car, you MUST stop doing so, as every additional mile/day makes it more difficult for you to argue otherwise.

 

Bear in mind that as Conniff quite rightly stated, within the 1st 6 mths of purchase, the goods are deemed inherently faulty and the onus is on the SELLER to prove otherwise.

 

The main issue here is not the law, which is quite straightforward, but the fact that with a cost of over £5K, it will be outside the small claims remit and that always makes things more difficult. you might want to see if TS would be interested on helping putting a wee bit of pressure on the dealership. Oh, and if the dealer is part of the BMW network (and not just a 2nd hand BMW cars dealer), a wee complaint to Head Office might help, but not if he's an independent.

[Bernie_the_Bolt]

Some people seem to be unclear about right to reject, so may I state the following two facts (with both act of parliament and caselaw saying so!):

 

a - the acceptance of repair does NOT automatically make you lose the right to reject the goods if they are still unsatisfactory.

 

b - there is no set time on how long you have to use the goods before they are deemed accepted and it will vary widely from goods to goods. The benchmark is "what the person on the street would consider reasonable"

 

 

To OP:

 

I wouldn't agree that having driven 200 miles is any indication that you have accepted the goods, and you definitely haven't accepted it because you agreed to a repair, so IMO your right to reject is intact. HOWEVER, if you are still using the car, you MUST stop doing so, as every additional mile/day makes it more difficult for you to argue otherwise.

 

Bear in mind that as Conniff quite rightly stated, within the 1st 6 mths of purchase, the goods are deemed inherently faulty and the onus is on the SELLER to prove otherwise.

 

The main issue here is not the law, which is quite straightforward, but the fact that with a cost of over £5K, it will be outside the small claims remit and that always makes things more difficult. you might want to see if TS would be interested on helping putting a wee bit of pressure on the dealership. Oh, and if the dealer is part of the BMW network (and not just a 2nd hand BMW cars dealer), a wee complaint to Head Office might help, but not if he's an independent.

 

You may think the law on this is straightforward, but The Law Commission in their consultation paper Consultation Paper No 188 "Consumer Remedies For Faulty Goods" didn't when they said:

 

The domestic law has been criticised for its uncertainty: in particular, for its

conflicting case law over what constitutes “a reasonable time” to reject goods.5 In

addition, the EU remedies have their own uncertainties, for example, over what

amounts to “significant inconvenience”. These problems are compounded by the

fact that the two separate regimes co-exist, using different language and

concepts and imposing different burdens of proof. As a result, SoGA has been

described as “a disjointed, often incoherent, amalgam”

 

You can read the whole thing here:

 

http://www.lawcom.gov.uk/docs/cp188.pdf

 

I may have missed it but I'm not aware that the "disjointed, often incoherent, amalgam" is fixed.

[Bookworm]

I am very (too much?) familiar with the consultation papers, and the "disjointed, often incoherent amalgam" doesn't refer to SOGA on its own, it refers to the discrepancy between the EU regs and the UK one, because of the disparity of remedy between the 2 and there also a few interested parties who wouldn't be unhappy at seeing SOGA disappear altogether, which may well explain the words you've quoted. "has been described", by whom? Consumer bodies as a whole think that SOGA is actually a pretty damn good piece of legislation. Basically, the UK's position is that they'd like to keep the part which are most favourable to consumers (reverse burden of proof for example) whilst also taking the good bits where the EU regs work out better. Watch this space for the final draft now the consultations are over, should be interesting. Point is what you have quoted is a consultation paper, and as such is an opinion, no more no less, and has little bearing to the Act of parliament itself. not everyone is of the same opinion as myself? nothing new there, lol. But I digress...

 

The only part of SOGA which is open to intepretation is the one of "reasonable", and that is defined, as I said higher up, as to what the average person would consider reasonable. How can it be otherwise? A £75K car can't possibly have the same period of rejection as a £5 kettle. For that matter, not all kettles are made equal either, so even the right of rejection between different kettles could differ. Hence the whole price/brand/expectations equation.

 

Anyway, all this is probably not terribly helpful to the OP, maybe we can discuss the clarity or lack thereof of SOGA elsewhere? In the meantime, the points I quoted in my previous facts are not opinions, they are taken directly from the text itself (although not verbatim, my memory is not that good!!!).

 

On this note, I've just seen the time! Catch you all in the morning.

[Top Dog]

Hi All,

 

I sent my letter to the trader last wednesday by 1st class recorded delivery (08/09/10) and it still hasnt arrived (today 13/09/10....I've used the track and trace system and it states its still going through the delivery network- not sure why its taking so long......

 

I've noticed the trader has an email add on his website, is it ok to send via email?