SOGA - major MOT fail 3 months after purchase

[Holmer]

We bought a 52 plate Xsara in July 2012 from a local dealerfor £995 (including £600 for our old Micra).

It had about 88k on the clock, andan MOT until October.

My wife took it for a test drive and did not see anyproblems other than stalling it a couple of times,

and that the rear viewmirror was missing, which the dealer told us he would sort out for us (thoughnever has).

Over the following couple of weeks I noticed that the clutchbiting point was nearer to the floor than I was used to,

but not knowing a lotabout these things, thought nothing more of it, particularly as one member ofstaff told me that it had had a new clutch fairly recently.

However as timewent on we began to notice more issues with the clutch,

with the car judderingwhen reversing and

a few days short of the MOT my wife even reported that it hadstuck down on one occasion and she had had to lift it up with her foot.

 

we nursed it through to the MOT which was when wehad a real shock.

Not only was the clutch completely shot, but there were majorfails on the front and rear suspension, along with tyres, wipers needingreplacement.

The view of the tester was that the vehicle was a right off, withthe rear suspension alone set to cost £800+ as a new rear axle was required.

 

At this stage we were stuck until a call to the CAB led tous finding the SOGA.

As we had had the vehicle for less than 6 months, we feltwe had a pretty good case to go back to the dealer.

However, when we did so, hewas very dismissive and was rude to my wife, calling her ‘obnoxious’ when shestarted quoting the SOGA to him.

Since that day he has refused to speak to heragain, citing her attitude and comments made to another customer as we left.

 

He came back a few days later after talking to ‘his’mechanic (that has not seen the vehicle),

that the suspension problems wouldonly cost about £300 to repair, and that he would be happy for ‘his’ mechanicto repair it

and get it through the MOT if we gave him £110 for the tyres &wipers.

At no stage has he acknowledged any responsibility for the clutch as hestates that we had not gone back to him about it since we bought it,

and that itcould have all developed since we bought it from him, as we have covered about4000 miles in that time and what did we expect for a car of this age.

 

As this would represent us having to pay him £110 for hismechanic (who hasn’t seen the car) to do a £300 repair on something we have beenquoted £800+

for by the MOT inspector (who has) & to get it MOT’d, and then payfor the clutch ourselves, we felt this was totally unacceptable.

followingadvice from the CAB and Consumer Direct, we wrote to him stating that we wouldaccept £750 as full payment

(to allow for the 3months usage/wear&tear ontyres/wipers).

He has now written back, after talking to ‘his’ mechanic,offering us just £297,

along with telling us that the only relevant itemsmentioned on the previous MOT was an advisory comment about the frontsuspension,

(which to my mind volunteers the fact that the suspension wasalready questionable 9 months before we bought the car

and would therefore havedeteriorated further over time).

 

Our reading of the situation is that we have a pretty goodcase to get a full refund,

or at least something in the region of the £750 wehave asked for, t

hough in our last conversation with him he told us he was happy forus to go to court as he “knows he will not be made to pay anything like that”.

 

Does it sound to those of you with more experience of thesethings that we do have a case,

or are there factors involved that may make ourcase less robust than we think

and mean it more advisable that we take him up on his offer of‘moving a little bit’ from the £297 he has offered?

 

What should be our next move, and is it worth getting asolicitor involved (we would hopefully qualify for Legal Aid)? If we do go tocourt,

what sort of expenses can we realistically charge to him from theinterim period

(we have been able to share my mother-in-laws car, at herinconvenience, but have still had to take buses and trains on occasion)?

Could we hire a car and charge it?

What wouldhappen if we bought a cheap car in the meantime, would that affect ourposition?

Do we need to keep the car in question for further potentialinspection?

Should we ask the garage which did the MOT to write a report on thecar

– what is this likely to cost?

Edited November 22, 2012 by Conniff

[Conniff]

Hi Holmer.

 

The difference in suspension cost will be in the supplier. The MoT garage will replace with new parts while the seller would replace with used parts which he has a right to or he can ask you for a good contribution for betterment.

 

If you were hoping to reject the car for a refund, I think you will find you have left it a bit late so it is down to the dealers choice of repair, replace or refund.

 

The clutch won't be mentioned on any MoT as it is not part of the test.

 

I know you have swopped letters, but you need a definate on what he is prepared to do for you. List the faults and ask him which ones he is prepared to correct at his cost and which one he will require a contribution for and how much. When you have the exact figures and promise in writing, then you can decide what the way forward is with it.

 

Don't consult a solicitor, you are nowhere near a court stage and if/when that does come, the easiest way is for you to pay for the repairs and kpass a bill of what you consider fair for the seller to pay. If that is refused, then you can make a claim through the small claims on line which isn';t expensive and you will claim back anyway.

 

Don't do any talking on the phone unless you are recording the call and always send letters recorded delivery and keep a copy.

[Holmer]

Why do you say that we have left it a bit late for the refund - do we not have 6 months to do that? Is the mileage the issue?

 

In conversations, he has indicated that he will pay to get the suspension items repaired, by his mechanic; we have accepted that he is not responsible for the tyre and wiper; but the difference of opinion is mainly about the clutch, which he feels that 3months and 4000 miles is enough to claim that there was no problem when we bought it.

 

In writing however, he states that "I feel the faults you have mentioned were not present on the car when you purchased it and the car was commensurate for its age, mileage and price you paid"....." I do not accept that I am responsible in any way for the condition of your vehicle after 4000 miles and three months". He does however, then make the self-defeating reference to the suspension on the previous MOT advisory notice and closes with stating that he is "willing to contribute the sum of £297 in the way of repairs to resolve this matter".

 

So our choices appear to be: i) take up his original offer of repairing the suspension at his expense and getting it through the MOT if we pay the £100 for the tyres/wipers, but then ensuring that we get it checked independently by the AA at his expense - but that does not address the clutch issue ii) take his latter verbal offer of trying to get him to 'move a little' on the £297, then just scrap the car for another £100 or iii) take the legal route and trust in the SOGA to get him to pay for both suspension AND clutch AND costs, at the risk that teh judge might not see it as clearly cut as we do...

 

Any thoughts?

[Conniff]

No not 6 months, it is the first six months that the seller has to show that any faults were not present at the time of purchase. For rejection the regs say 'you have for a short period' and 3 months isn't really a short period. There is no actual length of time indicated, but after 4,000 miles I think you will have been deemed to have accepted it.

 

The clutch is the big thing here and if he refuses to do it, you will have one hell of a job getting him to change his mind even if right and the regulations are on your side. SOGA isn't the be all and end all it would appear I'm afraid and even in court different judges can interpret in different ways.

He has probably been threatened with court may times, so if you do decide to take this route then don't threaten unless you really intend to do it, and the easiest way is as I posted above.

 

Ring around a few place to get yourself a price for doing the clutch, if you have a dedicated clutch repair center, they would more than likely be the cheapest. Once you know how much, then you can start to talk about that. You might be able to get him to give you a complete clutch kit and it will only need installing.

Get the cost of parts and labour first and then you can see how it goes. Even a brand new clutch is betterment and I know what you are saying that as a consumer you can expect the car to last longer than a couple of weeks and that would be your best demand under SOGA.

 

SOGA is a super document and courts something to be feared, but they don't work that way and even if you won in court, he can still refuse and there isn't a lot anyone can do without further cost to yourself.

 

I'm not making definitive statements here, others will be on and input ideas etc so all isn't lost. All I'm trying to say is you will have a fight on your hands.

[BankFodder]

I think that you should get an independent inspection and valuation.

 

Then give him 7 days to come up with a proper offer or you will go to court.

It sounds as if the car was sold in untrustworthy condition anyway - get your assessor to confirm.

 

You won't get a refund. It is an old car - very cheap and you have had 4 moths use out of it. However I would have thought that the clutch should be replaced and it should be MOT'd at his expense.

 

I expect that if you issue a small claim, he will start to become more cooperative.

[popeyethesailortam]

If your getting any offer of help at all rip it out of his hands before he changes his mind. All the faults you mention are commiserate with the age and price of the car. It is after all 10 years old and less than 10% of its original value at under £1k. The law is there to protect both you and the trader. It does recognize that clutches are consumable items. If it has lasted 4000 miles it can easily be argued that it was fit for purpose at the time of sale. It may even be a linkage or master/slave cylinder issue and not the clutch. The rear suspension should not require a new back axle. Personally I think this MOT garage is trying to rip you off there. Tyres and wipers, again consumables. I know its not what you want to hear, but I personally doubt you will get any more than he has offered at court. I genuinely believe if he wished to defend it he would likely not have to pay anything. Also if you do go down the court route you have to put the car off the road until any decision is made.

[heliosuk]

Bankfodder doesn't half talk some rubbish at times. OP needs to weigh up options as posted by Conniff and Popeye. Soga is far from clear cut and a car with 4 months use, less than a grand in cost with age and mileage............I'd be doing what Popeye says........get what you can and run.

[Prolix]

Bankfodder doesn't half talk some rubbish at times. OP needs to weigh up options as posted by Conniff and Popeye. Soga is far from clear cut and a car with 4 months use, less than a grand in cost with age and mileage............I'd be doing what Popeye says........get what you can and run.

 

I couldn't agree more. Get him to up his offer a bit and move on. Even if you went to court and won you wouldn't recive a full refund. Any (and i use this term hesitantly) enjoyment had from the goods will be taken into account when considering a refund - and I doubt that you would be able to reject anyway for the reasons given by others.It has to be remembered that SOGA applies essentially to new goods and when considering rights in relation to secon hand goods age, price and condition are taken into account. Although the OP is understandably upset about the condition of the car it is sometimes best just to move on.

[Nagasis]

Personally I would let his mechanic fix the suspension and pay 110 for tyres and wipers and get it through the Mot.

 

Then as a separate issue deal with the clutch problem.

 

I have to say though that the dealers comments which refer to his non responsibility after 3 months is way off the mark. And although soga is far from clear cut, the word 'deemed' is not for interpretation when applied to point of purchase.

 

As always there is a compromise result somewhere, if you can get the suspension fixed for free as offered and you pay for your own tyres and wipers then you are getting a fair offer.

 

All you need then is a fair compromise on the clutch, if thats possible then a result all round. If a bit of pressure whether legal or not is needed to help achieve a compromise on the clutch then so be it. Lets not forget that the dealer did state it had recently had a new clutch which was clearly stated to mislead and get a sale.

 

 

As for some quoting age of cars as if it makes a difference, well mine is 20 years old and probably in better shape then most cars 3 years old.

Edited November 23, 2012 by Nagasis

[Holmer]

Well, it may have been a long wait but the GOOD NEWS is that we took him to court under the SOGA and WON!!!

£825 including costs, when he could have given us 6, even £500 the first day we went in. We also get to keep the car, which in truth means another £100+ for scrap, so all in all a success.

If I was to comment about things that worked in our favour:

i) the two faults were quite categorical, neither were open to interpretation; both had failed rather than being in the process of.

ii) our letters were calm, clear and offered a further compromise at each stage, whereas he quickly dug his heels in;

iii) he didn't seem overly prepared/experienced in the court process (more a matter of him having been able to brush people off, I believe, rather than no-one having complained before) - his case revolved simply about the distance we had driven in the time we had the car, and nothing more, and he didnt submit any additional evidence when asked just prior to the hearing, whereas I submitted all correspondence from both sides and a written timeline of events from start to finish (NB that may not always be a good idea if the other party is likely to pick up on anything you say)

iv) he actually admitted during our correspondence that the previous MOT advisory section included a reference to the suspension, thus giving us the killer evidence that this was something that had been developing over time, rather than just hitting a pothole

v) keeping calm in court, it is nervewracking, but I was just open and honest, which the judge clearly took note of as in his summing up he called me a "reliable and believable witness". If you can keep your calm, then that can often aggravate the other party into losing theirs.

vi) one thing the judge teased out of me, without me thinking of it beforehand, is that when talking about clutches, if you can show that previous cars you've owned have not an issue with this, then that puts more emphasis on it being the car rather than you. It helped that our previous car had been part of the trade-in for the dodgy one, so he had to admit there were no signs of damage on that.

 

So, in summary, it may rely on the judge, I've only had experience of one, but he was clear on the SOGA and wasn't going to take any rubbish as an argument against it; but I also think it may rely on who you are up against. Our guy was clearly not the brightest anyway (he had a sign up over the garage for three months saying "Cars brought for Cash" instead of 'bought') and believed he could just fob us off at first and even when we went to court still thought he could win without putting in any effort. It also took us 8 months from the first letter to the cheque arriving (I am waiting to make sure it doesn't bounce) which obviously could be a problem, but in the end we won, so another tick for the SOGA and a big BOOO to the nasty bogey garageman!!

[Last Of The Time Lords]

Outstanding news.

 

I love it when the villains of the retail world get a comeuppance! Well done for playing things smoothly at court. Even with my academic and employment experience on that front, I get edgy beforehand and actually prefer it once into the flow so to speak.

 

I keep wanting some smug manager to try and argue with me over SOGA so I can say: "I might not have what it takes to get my remedy at this moment but what I do have are a very particular set of skills. Skills I have acquired over the course of my law degree, skills that make me a nightmare for people like you..."

 

Wouldn't bother saying it really but it works in cloud cuckoo land. It's nice there lol!

[ploddertom]

Have you actually received your claim in full?