Help with a dealer pulling a fast one please

[mch1991]

I'm not sure why they're trying to defend. The Consumer Rights Act 2015 is abundantly clear with regards to faulty goods and the right to reject within 30 days, you don't need to give them a chance to repair to action your right to short term reject. The solicitors are writing nonsense (as to be expected), I believe the onus is actually on the seller to prove the fault was not present at the time of purchase, as opposed to what they're trying to say here.

 

Goods must be of a satisfactory quality (I.e. free of any minor defects, safe, etc), be fit for purpose (I.e. being able to drive a motor vehicle without any issues from A to B) and match the advertising description (a used car in good condition would generally be expected to be without any defects or faults with any mechanical or electrical components, you'd merely expect wear and tear on the bodywork).

 

When a defect occurs within 30 days from the delivery of goods, and the goods are rejected, the seller has 14 days to action a refund without any undue delay, you correctly sought a refund and rejected the vehicle on the basis a defect occurred, as per your rights under the Consumer Rights Act 2015.

 

This won't end well for them. I'd also recommend contacting Trading Standards and making a complaint.

[lamboboy]

Thanks mch1991, This was why we pushed it to the court because we read on another thread that this short term right should apply. At the end of the day, the seller should have just put it right as far as I am concerned as any respecting dealer would have!

 

Now we're concerned that we will have to prove that the fault was there when she first drove away and the sellers solicitor is clearly trying to put the frighteners on us to move to prove so I am hoping that someone can now guide us accordingly now that he has submitted his defence!

 

So far we have been being guided by Andyorch but we currently have no direction and any help will be gratefully received please.

 

lb

[AndyOrch]

OK, they're not backing off!

 

Received notification from the court today that a defence has been filed (although we don't know what that is!) We can only assume it is as was sent to us the other day which I sent earlier to you.

 

No mention of us inspecting the vehicle but we do have access to some professionals that may provide written evidence of how easy/difficult this accusation would have been?

Please help![ATTACH=CONFIG]74897[/ATTACH]

 

States in your above post whats next...you must complete the N180 and file and serve by 21st Feb

[mch1991]

After scouring the Consumer Rights Act 2015, there does appear to be an onus on the Consumer to prove there was a fault with the goods, this isn't difficult though, any electrical burning smell from a vehicle which leads to other electrical issues clearly indicates a fault exists and that the vehicle isn't fit for purpose or safe. In all my time of running a car sales business, I've never encountered the fault you've described, and I've sold many mk2/2.5 Focus models, to allege that you dislodged a plug is really grasping at straws.

 

It's important to note, that within point 5 of their defence, they admit that a fault was present, I quote "it was refitted and thereby all ISSUES with the vehicle were duly corrected". Their defence is more of a denial, as opposed to targetting specific facts, they know they're grasping at straws with this defence, I'd say their chances of success are very slim.

 

Unfortunately this type of behaviour is rife within the motor trade, when you make £1k profit before taxes on a £4k car, your margins are very slim, so when you have to take a car back, repair it, and resell it, you generally make a loss, not to mention a lot of businesses do not understand how the short term right to reject works, or that consumers have 6 months protection in regards to faults occurring.

[lamboboy]

States in your above post whats next...you must complete the N180 and file and serve by 21st Feb

 

It asks whether we will be providing written evidence from an expert. Do you think we should say we will?

Also the Solicitor has said "My client is not opposed to the vehicle being inspected in order to confirm the condition. Now that we are engaged in court proceedings, it would be sensible to have it inspected by an independent expert engineer"

 

Your thoughts would be appreciated.

Thanks

[lamboboy]

After scouring the Consumer Rights Act 2015, there does appear to be an onus on the Consumer to prove there was a fault with the goods, this isn't difficult though, any electrical burning smell from a vehicle which leads to other electrical issues clearly indicates a fault exists and that the vehicle isn't fit for purpose or safe. In all my time of running a car sales business, I've never encountered the fault you've described, and I've sold many mk2/2.5 Focus models, to allege that you dislodged a plug is really grasping at straws.

 

It's important to note, that within point 5 of their defence, they admit that a fault was present, I quote "it was refitted and thereby all ISSUES with the vehicle were duly corrected". Their defence is more of a denial, as opposed to targetting specific facts, they know they're grasping at straws with this defence, I'd say their chances of success are very slim.

 

Unfortunately this type of behaviour is rife within the motor trade, when you make £1k profit before taxes on a £4k car, your margins are very slim, so when you have to take a car back, repair it, and resell it, you generally make a loss, not to mention a lot of businesses do not understand how the short term right to reject works, or that consumers have 6 months protection in regards to faults occurring.

 

Thank you for this and I agree that the Solicitor has supported our claim but we are unsure as to when we can use this to our advantage. It also is an ambiguous admission when he portrays that his client has fixed the issue but omits to advise that his he passed the cost onto the consumer! She could have done that herself for a fraction of the cost!

[AndyOrch]

Thats your decision...but if you intend using one then you must complete that section which requests permission.The Solicitor is simply informing you that they are not opposed to expert evidence.

 

Expert evidence

The court must grant you permission to use an expert witness. Your notice of allocation will tell you if permission has been granted. Please note the upper limit for experts’ fees that can be recovered is £750. You can get more information by reading leaflet EX306 ‘The small claims track in civil courts’. You can get this leaflet online from hmctsformfinder.justice.gov.uk

[AndyOrch]

Use the following and complete on your PC......far more professional than hand written.

 

Run 3 copies...Court /Sol/File.

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?406099-LEGAL-N180-Directions-Questionnaire-(Small-Claims-Track)-**Correct-at-Sept-2016**

 

 

https://www.moneyclaimsuk.co.uk/PDFForms/N180.PDF

[lamboboy]

Right so we advise by way of the N180 if we wish to use a written expert statement and they have to agree to it before we actually submit. Is that correct? And at what time can we add the cost of this witness to the claim please?

[AndyOrch]

Right so we advise by way of the N180 if we wish to use a written expert statement and they have to agree to it before we actually submit. Is that correct? Yes And at what time can we add the cost of this witness to the claim please?

 

If and when you win..the court adds costs

[lamboboy]

great thank you!

[lamboboy]

Evening all

 

With a view to completing the N180 in respect of the possibility of an Expert Written Statement, we have now contacted two mechanics who state that this is not an uncommon problem and that this switch can become dislodged. (They both also confirmed that this is easily diagnosed and rectified and should not cost £115 nor be the buyers liability in their opinion!)

 

As a result, is there any mileage in incurring more costs to pay for a mechanic to examine and state that this problem is not unusual, when the point we should try to labour, is that this problem existed from the outset?

 

Furthermore, it was muted that depending on if the vehicle was serviced (and to what extent), the servicing garage would have had to gain access to the faulty area, in order to address the pollen filter, thus could have disturbed it. (If this is relevant; how could we request this info and if so how??)

 

Finally as previously mentioned, the Solicitor has already admitted that there was a fault when it was looked at by the garage (commissioned by the dealer without consent nor offer of liability to the buyer)

 

My question is; should we avoid a further cost in relation to obtaining an expert witness; by contacting the Solicitor to establish if the vehicle was serviced and if so, to what extent. Do we also point out that as he has admitted there was a fault, would he want to pursue through court rather than paying the garage bill (which he has omitted to refer to and is the whole issue of the grievance!)

 

We are happy to push this, but if the onus is on proving the fault was there at the point of sale; is there any reason to incur further costs to either party, in order to inspect the position of the switch and likelihood of familial dislodge!?

 

Am I waffling? Does this make any sense please?

Worried that we may inadvertently scupper our chances!

[AndyOrch]

If its not worth going to further expense and a expert witness cant really add anything of value...then you should try to mediate before progressing the claim further.

[lamboboy]

Hi Andyorch

 

The technician did say however that the pre delivery service (if the service was carried out!), would have had to have removed this faulty part in order to gain access to the cabin filter!

 

Also; can I confirm with you about the garage repair bill ....

So to reiterate, dodgy dealer recovered the car (which by then was unroadworthy and illegal) and took it to a garage appointed by him. At no time did he tell her that she would be liable for any costs, nor did he consult with her to advise that the garage had diagnosed the problem and wanted £115!

Is this bill he is trying to get her to pay, his own contractually, negotiated liability?? Should he not have at least advised her/negotiated & billed her independently?

 

I am in the process of writing to the solicitor again, but I am fighting for words to be honest as I don't want us to give up but to continue to court is obviously the last resort and Mediation has a cost so if we can settle ourselves; it would be preferable.

 

If he would just pay his own garage bill and restart the purchase date, she will take the car back.

 

I have started my letter as follows and would appreciate any input:

 

"Having consulted with 2 expert technicians and dealers, I will not be effecting a report on the vehicle at this time, as they would not be able to afford any tangible evidence without further information and significant costs.

 

Therefore, in order to uphold my complaint that this fault was present at the time of purchase, I require the documentation pertaining to the pre delivery service as this has a direct influence on the the fault as soon as possible."

 

Any thoughts please?

[lamboboy]

We are putting YES to mediation on the N180 but are we able to offer our own statement regarding the defence. They have said that she had suffered no loss (but didn't mention he'd referred the cost to her). Furthermore he also admits there was a fault! Finally, do we now ask for the information regarding the pre delivery service (relevant because the service could have dislodged the faulty area) and if so how please.

 

We only have a day or two left to respond if anyone can direct please?

[AndyOrch]

You dont submit any statements with the DQ...simply tick boxes....the DQ is for allocation to track to transfer the claim to County Court...directions from the court follow after the DQ IE Statement's and evidence.

 

With regards to disclosure....this will be part of the Courts Directions (the next stage)

[lamboboy]

Great. So we will tick mediation and we have said yes to a written expert witness in case we can get one! We'll get this off! Thank you

[AndyOrch]

I thought you had decided against an Expert Witness Report ?

[lamboboy]

We have in view of attempting to prove the allegation that the switch could have been kicked off but the expert witness may be able to state that in order to perform a pre delivery service on the vehicle, the garage would have had to dismantle the faulty panel in order to change the cabin filter so an expert witness may be able to confirm this.

 

It is our understanding therefore that the fault could be equally that of a weird (but not impossible) kick, or that the servicing tech did not re-fit the switch adequately. This would then surely but some element of doubt as to where or when the fault was present particularly with a view to ascertaining the condition at the point of sale.

 

Furthermore, if he cannot prove the car was serviced, can he also support it's quality in the first place? ..... We don't know to be honest, we are blindly anticipating how a judge may view this either evidentially or pragmatically?!

 

At the end of the day; we really are just trying not to be brow beaten by someone who thinks he can bull**** his way out of something he should have put right.

 

We are more than up for the fight but don't want to make any further rooky mistakes because we are ignorant. So when we looked at the defendants N180, he had put that he would be using a written witness statement (he made no reference to how much or who, as was requested) so at this moment, we have copied him. It won't be sent until tomorrow so if you think we should do otherwise, we are happy to be guided.

[AndyOrch]

Could you upload their DQ redacted .

[lamboboy]

bear with..

[lamboboy]

please see attached

directions1.pdf

direct def 1.pdf

direct def 2.pdf

[AndyOrch]

Thanks...okay well yes you tick it as well for now in case it is required and if the defendant wishes to opt for an Expert Witness Report.

[lamboboy]

Afternoon!

 

We have now filed the N180 and the defence solicitor has come back with this

 

' acknowledge receipt of your Directions Questionnaire.

 

I note that I have not heard from you with regards to the further inspection of the vehicle.

 

In any event, my client's proposal is still open for acceptance – claim withdrawn and the vehicle collected.'

 

We were thinking of replying as follows but wanted to run it by you first in case we are tripping ourselves up somewhere.

 

'Further to your letter of 21st February 2019, I can confirm that due to the considerable costs associated with requesting an expert inspection, I am at present gaining alternative evidence. This will include the full disclosure of any documentation regarding any pre delivery service that may have been afforded to this vehicle, as this will add weight to the findings.

 

In the meantime however, the only pragmatic way forward to avoid further proceedings or expense would be for Mr XXXXXX to settle any outstanding bills he may have negotiated, accepted and agreed independently with the garage of his choosing and provide me with a newly dated purchase invoice.

 

Failing this; I am happy to proceed as directed by the Court.'

 

Any thoughts please?

LB

Edited February 25, 2019 by Andyorch
Name removed

[lamboboy]

Is anyone around to just check the previous reply please? We are worried we will get it wrong!