SOGA - Car Not Fit For Purpose **Resolved**

[ChargeBlaster]

Here we go then:

 

20.3.13: sign a finance agreement, pay a deposit and take delivery of 05 Citroen C5 auto diesel, 77k on the clock

21.3.13: having driven c140 miles, the STOP warning light appears on the dashboard. I stop the car immediately. I wait a few minutes, and start the car again. Plumes of white smoke emit from the exhaust. I switch off and wait a few more minutes. Repeat the exercise with the same result. I'm no mechanic, but have enough lay knowledge to suspect this is a blown head gasket.

 

I call my recovery company. Upon arrival, he repeats the exercise. He tells me that he too suspects either a failed turbo or a failed head gasket. He confirms that the cannot be driven. On the job sheet, however, he only mentions the turbo, rather than or in addition to the head gasket, but does mark the job as 'urgent'. I ask him to recover the car to the dealership from whence it came yesterday.

 

The car is delivered as requested. I leave a note on the dashboard, with my mobile phone number, asking someone to call me. I also leave a copy of the recovery agent's report.

 

25.3.13: I have heard nothing from the dealership. I call them. The sales guy tries to fob me off, suggesting I should be speaking to servicing. I insist on speaking with him, and that he finds out what's going on with the car. He speaks to servicing and returns to tell me that they're looking at the car, and suspect that a head gasket has blown. I advise him that with that news I'm now considering my options, as my view is that the care is not fit for purpose under SOGA.

 

1.4.13: Hand delivered a letter to the dealership giving them 14 days to refund all monies. See attachment.

2.4.13: Called finance company to inform them of my action. They advised ongoing dialogue with dealership.

2.4.13: Called dealership, spoke to another sales guy (whom I'd met) to ask if they've read letter. He said the letter had been passed to the director

2.4.13: Later, surprise surprise, I receive a call from the original sales guy to say that they've checked the car, and can find nothing wrong with it. This is clearly in contradiction of his previous information given to me on 25.3.13 that their servicing department suspects a failed head gasket. I advised him that I'd be taking legal advice.

3.4.13: Called the finance company. Explained the dealership's response. They suggest they're going to get an independent engineer's report.

3.4.13: Faxed a second letter to dealership and copied to finance company. See attachment.

12.4.13: Call from finance company to say that the independent engineer has completed his inspection, and found nothing wrong with the car. The finance company suggest that accordingly, the car is ready for collection. I suggest to the finance company that the engineer's report is in respect of the car on the day that he saw it, not on the day it broke down, when unambiguously, the car was not fit for purpose, as confirmed by the recovery agent's report. He suggests that from the finance company's standpoint, my complaint has been finalised. I said that I will await a copy of the engineer's report.

 

So.....facts and opinions:

 

1. the car was unfit for purpose from day 2. opinion

2. the symptoms clearly suggest a blown head gasket or turbo - neither of which could simply rectify themselves without mechanical intervention opinion

3. the dealership told me on 25.3.13 that their servicing department suspected a blown head gasket fact

4. an independent mechanical report can only report on what they find on the day of inspection, not on the day the car failed opinion

5. under SOGA I have a right to return goods that are not fit for purpose fact

 

What next?

 

I fully intend to sue. But I need to be clear. I've now come to realise (I think) that my contract is with the finance company for the entire purchase price, including the deposit I paid direct to the dealership, including fuel left in the car by me. It is the finance company against whom I should be issuing Proceedings.

 

Am I right?

 

Any further observations?

 

Thanks, Caggers, in advance for your advice and guidance.

[postggj]

the finance company now own the vehicle, that is true, but the transaction was done with the dealer.

 

under the SOGA, it is the dealer who has the ultimate responsibility to rectify the problem. If a fault develops within the first six months of purchase, the law regards the fault to be present at time of purchase

 

i am a little confused on the independent vehicle report where you state an independent mechanical report can only report on what they find on the day of inspection, not on the day the car failed

i know i sound stupid but clarity is needed

 

the car was taken back to the dealership where an indapendent report was done on the vehicle and they say now nothing is wrong with the vehicle

 

is that correct ??

[ChargeBlaster]

Hi Squaddie

 

Thanks for taking the trouble to reply.

 

The finance company ordered the independent engineer's report. My position is that one day after I purchased the car, it failed. So on that day, it was unroadworthy (as confirmed by the recovery guy) and not fit for purpose. 23 days later, the independent inspection has been carried out, and he finds nothing wrong with the car? How can this be? The garage must have either replaced the turbo or head gasket, but they claim to have inspected the car and found nothing wrong. The car cannot have repaired itself.....

[postggj]

In your position i would contact the garage and the finance company that the car is going no ware until this issue has been sorted

 

Tell them you are going to arrange an inspection on the vehicle yourself with a full diagnostice report

 

This report will be done either by the AA or RAC

 

ITS EXPENSIVE, AROUND £200 I BELIEVE BUT YOU CAN CLAIM THAT BACK THROUGH CIVIL ACTION AND A COURT WILL ACCEPT THE REPORT FROM AN ESTABLISHED ORGANIZATION

 

Do not drive the car away as you will be agreeing that the vehicle is now in a roadworthy condition

 

ASK THE GARAGE FOR THE FAULT DIAGNOSTIC REPORT WHEN IT WAS BROUGHT IN FOR REPAIR, CHECK THE DATE OF THE REPORT WHEN REQUESTING A COPY

[ChargeBlaster]

Thanks squaddie.

 

As I continue my research, I become more confident that I have the basis of a successful claim:

 

I'll await any further views, but I anticipate issuing Proceedings online this weekend. It'll cost me £100.00 I believe.

[postggj]

You need to get an indapendant report done on the vehicle before starting litigation. It is complying with the Civil Procedure Rules and Practice Directions, if not then you will open yourself up to costs.

 

YOU SAY THE VEHICLE IS FAULTY, THEY ARE SAYING IT IS NOW ROADWORTHY AND FIT FOR PURPOSE

 

You need an indapendant report from the AA or RAC to rebuff their claims

[ChargeBlaster]

Hi squaddie - really appreciate your attention to my thread.

 

To be clear, I don't dispute that the car is now roadworthy, 23 days after I bought it. My claim is that one day after purchase, it was not roadworthy - and therefore unfit for purpose under the Sale of Goods Act. In the intervening time (see my chronology) I have no doubt that they fixed whatever was wrong with the car, but will not admit to doing so - as to do so would be to admit liability. So by fixing it, and the finance company paying for the independent engineer's report, the report will, of course, state that they can find nothing wrong with the car. Had the independent report taken place at my home the day after the car failed, the outcome would have been supportive of my position.

 

The burden of proof now lies with me to prove it - which won't be difficult if I can get the recovery agent to act as an independent witness to the state of the car on 21.3.13.

[postggj]

BE CAREFUL IN THE WAY YOU ARE GOING WITH THIS

 

The car broke down, it was taken back to the dealer

 

Part of the legislation is that you give the retailer an opportunity to rectify the original complaint to your satisfaction (have they done that)

 

They have now done this, they will use that as a defence in court

[ChargeBlaster]

BE CAREFUL IN THE WAY YOU ARE GOING WITH THIS

 

The car broke down, it was taken back to the dealer

 

Part of the legislation is that you give the retailer an opportunity to rectify the original complaint to your satisfaction (have they done that)

 

They have now done this, they will use that as a defence in court

 

Hi squaddie

 

The dealership are saying that they have inspected the car and can find nothing wrong with it. So, they are calling me a liar and that there was never anything wrong with the car. If they can't find anything wrong, how could they have repaired it? But there was something wrong as described in my original post, and as confirmed by their salesman in a telecon with me on 25.3.13.

 

I just need to be clear who it is I should be suing - the dealership, the finance company, or both?

 

The following may assist readers following this post: http://www.oft.gov.uk/shared_oft/reports/676408/oft1241.pdf

[postggj]

Any claim would be against the dealership who sold you the vehicle

 

You need an independent report first before any litigation

 

It will say if any parts etc have been replaced

 

Asking the obvious

 

If the car is now roadworthy and any issues have been addressed, why the court claim, do you wish to withdraw from the finance agreement ??

[ChargeBlaster]

Any claim would be against the dealership who sold you the vehicle

 

You need an independent report first before any litigation

 

It will say if any parts etc have been replaced

 

Asking the obvious

 

If the car is now roadworthy and any issues have been addressed, why the court claim, do you wish to withdraw from the finance agreement ??

 

The dealership is lying to me. The car failed one day after purchase. I have no faith in the car, or the dealership. The issues would appear to have been addressed, but the dealership is failing to say how they've been addressed - since their stance is that they can find nothing wrong with it. Given that the car was unfit for purpose one day after purchase, I have a valid claim under SOGA, notwithstanding how the car may be presented to me now, over three weeks later.

 

And as the car is on finance, I have redress against the finance company, too.

[postggj]

As stated

 

You need an independent report to confirm what has been done and/or new parts fitted

 

If they are in breach of contract by selling an unroadworthy vehicle then you are entitled to redress.

 

£200 vehicle report from the AA is not cheap, you will open yourself up to a costs application as a vexatious litigant

 

At this moment in time they have rectified the faults and returned a roadworthy vehicle

 

In my opinion this is a non starter and you are opening yourself up to a wasp nest of trouble

 

Please before you do anything

 

PHONE TRADING STANDARDS AT YOUR LOCAL COUNCIL FOR ADVICE FIRST BEFORE INSTIGATING A COURT CLAIM

[ChargeBlaster]

Update on this case. I took legal advice under my house contents insurance legal expenses cover.

 

After reviewing the paperwork the appointed solicitors decided not to support me in any court proceedings, as they believed I had less than 50% chance of winning the case, but they did confirm that any future claim issued should be against the finance company and not the motor traders. On that basis, I went to collect the car. Lo and behold, it failed to start. I obtained my own independent report at a cost of £102.00.

 

I informed the finance company, and issued a claim immediately. I also stopped my direct debit on the finance agreement. First Response Finance responded, giving me three options:

 

1. I can collect the vehicle and restart my payments

2. I can voluntarily terminate my agreement, paying the outstanding liability (£2092.20)

3. I can refuse to collect the vehicle and refuse to make any repayments; this will result in First Response Finance making a counter-claim for the full balance outstanding on my account (£5522.07) plus any additional costs.

 

They told me I had 14 days to respond (!). Meanwhile, they would arrange for a second independent engineer's report.

 

I decided to await the engineer's report, having already obtained my own. The engineer's report came back, and was described by First Response Finance as "inconclusive"

 

THEY SETTLED OUT OF COURT, IN FULL, INCLUDING COURT APPLICATION FEE.

 

I am happy to provide documentary evidence of all of the above.

 

LESSONS LEARNED:

 

> Never give up

> Never speak on the phone - always get them to put it in writing. If you HAVE to speak on the phone, always preface any conversation by checking that the conversation is being recorded, and emphasize that you may call upon the tape for evidential purposes. ALWAYS get the name of the person you've spoken with, and keep a written chronology of the date and time of the call, and who you spoke to. Before ending the call, ask the person at the other end to read back the notes he or she has just made. BUT, TOP advice is DO NOT HAVE TELEPHONE CONVERSATIONS WITH THE PEOPLE YOU MAY HAVE TO SUE.

> Do not be intimidated by aggressive letters. Keep all correspondence and receipts.

> If you have the evidence, be prepared to sue.

> Have the courage to be a 'litigant in person' - it's not always feasible to get legal representation - as I found out.

> Think like a lawyer, and if you get to Court, dress and act like a lawyer. Do NOT let them intimidate you. I've now sued at least 4 times, and never lost.

> Research the law - and don't believe everything people say on here is the absolute truth. The advice that I was given by postggj (formerly known as squaddie), though well-intended, was neither accurate nor helpful, despite his/her 22,000+ posts. He (or she) may be a committed Cagger,but s/he suggested any legal claim should be against the car dealership and not the finance company. This was WRONG, and had I not sought legal advice I may have wasted hundreds, possibly thousands of ££ as a result of suing the wrong party. The CAG Site Team should ideally be checking what advice is given out on this brilliant forum , though I guess that practically, it's an impossible task.

 

IF I can help in any way, please don't hesitate to get in touch.

Edited January 6, 2014 by ChargeBlaster

[sailor sam]

I'm pleased for you at your outcome but I must make the following observations;

 

I think Postggj actually gave good advice here. Having been through a similar case myself, I can tell you that had it been necessary for you to pursue the matter via the court, you should of named both the seller and finance company as co-respondents. No doubt the finance company has recovered it's monies from the dealership anyway and decided that going to court would not have been a waste of time for them. I would suggest that behind the scenes, the finance company and dealership came to a mutual agreement as it would not of been in either of their interests to go to court as (and quite rightly so), you had such a strong case. HOWEVER, I think if the dealership had not played ball with the finance company, then they would of defended the claim as they could surely not of alone been held responsible for the failings of the car. They simply would of applied to have the matter adjourned so that the dealer could be added as co-respondent. Yes, the ultimate outcome would of been the same (probably) but the process could of taken much longer.

 

So I think your comments on the advice you were given were a bit harsh as I think the advice was perfectly reasonable and accurate (I do also speak from experience). Aside of that, I thank you for letting us know of the outcome and endorse your other comments.

[Surfer01]

I also think that the correct advice was given by squaddie as under SOGA the contract was between the dealer and yourself. However congratulations on winning, but TBH if you had taken the finance company to court, it is highly unlikely you would have won against them, The dealer, yes.

[steampowered]

Thanks for the update, appreciate it.

[ChargeBlaster]

Hi Surfer

 

 

The legal advice I received was that my contract was with the finance company.

 

 

I sued the finance company. They settled out of court. So I call that a win against the finance company.

 

 

Much as I appreciated squaddie's advice, it was wrong, and I advise all would-be litigants to get their 30 minutes of free legal advice available from any solicitor. I'm glad I did.

[sailor sam]

Hi Surfer

 

 

The legal advice I received was that my contract was with the finance company.

 

 

I sued the finance company. They settled out of court. So I call that a win against the finance company.

 

 

Much as I appreciated squaddie's advice, it was wrong, and I advise all would-be litigants to get their 30 minutes of free legal advice available from any solicitor. I'm glad I did.

 

With respect, you don't know that for sure as it wasn't tested in court. I repeat my opinions of how it was resolved in post #14.

[jfhall82]

Both the finance company and the dealership are 'jointly and equally liable'. Theoretically you can sue either or both and get the same result. Obviously this is now academic.