Small claims for blown clutch

[Mattyhants]

Hi Guys,

 

I am part way through a small claims for a car I bought last year from a private seller. The car was advertised as 'in excellent' condition in an ebay advert and I bought it but after the ebay listing had finished so was not entitled to any buyers protection.

 

Anyway I paid in cash for it without test driving it and discovered that the clutch was blown as on the way home I couldn't get about 2krpm without extreme slippage and burning. i complained within a few hours to the seller asking for 50% contribution towards a new clutch or returning it and offering her to keep £100 fo the cost. It was a Toyota Celica 1997 and I paid £450.

 

Anyway after getting it repaired, without using it for 3 months due to not affording the repair. I made a small claims and the defendant didn't reply to the papers within 2 weeks so asked for a default judgement which I was awarded. they challenged this and the judgement was 'set aside' two weeks ago. Now I'm back to square one.

 

My question is shall I on my allocation questionnaire express an interest in 'mediation' or just proceed to the court hearing??

 

Has anyone any knowledge/experience of the mediation process??

 

I didn't pursue this originally because they didn't want any contact with me or they'd report me to the cops!!

 

Thanks for any help

[Conniff]

I think as you have gone this far and had the award granted, (albeit by default), you should bypass mediation. My opinion.

 

If the ad describes it as in excellent condition and it broke down the road, it was obviously sold because the clutch had

gone.

If you still have the advert you already 10 steps ahead as practically the only comeback on a private seller is 'not as described'.

Edited January 21, 2013 by Conniff

[Mattyhants]

Thanks Conniff you're a star!! Yes I do have the the original ad that i have already submitted as evidence. One of the reasons I didn't test drive it was that i would have had to activate insurance then if I didn't want it I'd be out of pocket. i have definitely learned my mistake!!

 

thanks again.

[crem]

There is no reason to decline mediation as it can do you no harm, but may make you look like a reasonable persontrying to resolve the problem amicably. Taking mediation does not change the court date already set and you are in no way obliged to agree anything offered at mediation. Remember mediation only takes place if both parties agree to it and it sounds like the defendant probably won't anyway.

 

Mediation is usually by a 3-way phone call with the mediator ringing you, then ringing the other party, then ringing you back etc so you are not speaking direct with the defendant at all.

 

You don't have to agree to anything offered in the mediation phone call if it doesn't suit you and none of the details discussed/offered are reported back to the court. they are simply informed that "mediation was unsuccessful". Your court date still stands..

[Mattyhants]

Thanks Crem for the information.

 

I take your point that really I haven't anything to lose by engaging with mediation. I think the defendant is probably not willing to compromise, as they've have ample opportunity, but if they don't agree to it then I know that it will go straight to the hearing. I am willing to compromise just to conclude it all. I have to get the form back in a week so food for thought......

 

 

Many thanks

[oddjobbob]

Hang on a minute

 

This was a private sale

 

The car was £450

 

Although the seller didn't turn up to court, they have had the judgement set aside.

 

1. Private sales, are, largely, buyer beware as a private seller is not deemed to have sufficient technical knowledge or experience to be able to declare any faults (apart from obvious like mis stating mileage).. I know that's codswallop and they knew, but that's private sales for you

 

2. You cannot expect a reliable car for £450. Sorry, you just can't! ESPECIALLY not from a private seller. Honestly, a £450 car is just going to be a banger, end of story.

 

3. They've now had the judgement set aside and will defend any new action you my take

 

$. Even should you win in court you may well still not get paid. Winning doesn't equal getting paid.

 

IMO just fix the car or scrap it and move on, you really are expecting too much of a £450 motor car.

 

And I'm sure I saw a similar thread to this on the ebay motors board.

 

Please move on I think you're throwing good money after bad and the time and money you're spending would be better spent on a new clutch.

[Conniff]

No one has said they are expecting perfection, but you can expect the car to go when it is described as 'In excellent condition". Miss-description is the only real thing that can be taken against a private sale. Not everything is buyer beware.

[oddjobbob]

You may well be right Conniff, but getting a judgement is entirely different to getting paid.

 

I think the OP will struggle here, s the seller, rightly or wrongly, will be thinking 'WTF does he want for £450?'

 

£450 really is banger money, I have to ask why the OP didn't drive the car straight back to the seller rather than taking it home if the clutch was really that bad.

 

We can only go on what the OP has said though, but even on that basis it's a £450 banger and I don't really think he's got anywhere to go with this.

 

We'll see!

[heliosuk]

Got to go with Oddjob on this..................in principal I can see what the op is saying but reality is that he is taking the ****. If I were judging this case I'd be telling the OP to be not so bloody stupid with frankly a frivellous claim.

[Mattyhants]

Thanks for all the comments.

 

Helio/Oddjob. Your language is quite gruff and uncompromising!!!

 

Ok £450 to you maybe not a lot of money but to me at that time and those circumstances it was. It took me nearly 3 months to save up enough money for the clutch and it is all relative to ones' means, to me it isn't frivolous. The car couldn't do over 40mph and I couldn't drive it at all for 3 months, from the day after I picked it up, until it was repaired. In other words I'd might as well just flushed the cash down the lav. I was extremely miffed as you can empathise.

 

The reason I didn't drive it back was that I had contacted the seller who refused to refund me, so that wasn't an option. I couldn't exactly use violence to get it. It was advertised as in 'excellent and very reliable condition' it patently wasn't, it was undriveable. what would you have done?? Not even contacted the seller and complained?? Yes I made an error and was being exploited. Who hasn't. Funny, I thought access to a small claims track was supposed to give low end claims or claimants a fighting chance for justice. I'm glad you're not my judge then helio!!

 

Weird thing is I offered to try and limp the car back to her the next day and let her keep £100 of the sale price, she refused, now she has already spent at least £80 on court fees, go figure

[sailor sam]

An obvious question to the OP. If the clutch was as bad as you describe, why did you not take the car straight back to the seller? (That is a question the judge will no doubt ask also).

 

When buying privately, your rights under the SOGA are practically non-existent. Only comeback is if the car was falsely advertised or knowingly miss-sold. Is the OP 100% sure the seller is not actually a trader? Did his/her details match those on the V5 and if so, was the last change of keeper recent?

 

As far as the money is concerned and suggesting that £450 will be a 'banger', well last September I bought my son a 1993 Fiat Uno with 3 months MOT/tax with 80k miles for £245. Ii went to collect it and first thing I did was check the docs to verify the mileage ect (before even looking under the bonnet). I then asked for the key to start it up checking that it was stone cold first and what state the coolant and oil was in. Fired first time and ran as sweet as a nut with no crap coming from the exhaust.

 

Let it tick over while I checked the tyres and as much as the underneath as I could. (Body fine except rust around the o/s wheel arch) Then I ran it round the block (on my own) to see who it all ran (took my own insurance cover with me). Within 20 minutes I handed over the cash and drove it home.

 

To get it through the MOT in December cost £100 (plus the fee of course) but it's running fine and son is over the moon with it and so am I. If he gets only 12 months use out of it, it will be a bloody good buy. But I have a feeling that he could get his money back at least if he sells it before then.

 

Point being that buying a car for next to nothing may not necessarily mean that you are buying a shed. BUT you do need to check and check again the obvious, especially when buying privately.

 

OP in this case will need to prove that the car was miss-sold so the advert will be vital. BUT the question above will need a good answer if it goes to court.

[Old Cogger]

Always Remember:-

 

Buy any vehicle then you must road test it, as in this case if it went wrong in a very short distance you could walk away. But buying without testing well there you have it.

 

But also note that many experienced sellers will get you to sign Sold as Seen and Tested!

 

The court may look to you did not test the vehicle, so proportion of blame there, might get reduced cost or even then has the other person got money to repay you,= if not court case you pay, no money = you pay.

 

We all learn from hindsight, a very difficult situation

 

Take a company goes bust do you get your money back = No.

 

But at the end of the day, the seller should have a moral responsibility?

[oddjobbob]

hi Mattyhants

 

It's not meant it that way, and I DO sympathise - it was all the moey you had and you got turned over.

 

The seller wil claim it was ok when they had it, they didn't know' etc. They knew, they always know, don't even think for a moment that they didn't.

 

All I wanted to say and meant to say was that even if you win in a SCC the likelihood of you getting paid is very small.

 

£450 IS banger money, although like Sam suggests you CAN buy the odd very nice cheapie.

 

Your time will be better spent by moving and and fixing it and learning from it.

 

But thats just my opinion and its not my money so at the end of it all it's entirely up to you.

[Mattyhants]

Thanks guys for all the fab comments. i really appreciate it. It's very valuable to get others perspectives. thanks again:wink: