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    • Yes, Hotpoint UK has been a subsidiary of Whirlpool for over 20 years. And unlike some domestic goods manufacturers you can buy from them direct and I believe they employ their own service engineers, Is that your situation? You bought direct from Hotpoint and Hotpoint sent out their own engineer?
    • It's Hotpoint (but I believe they're part of the Whirlpool group now?). The part was bought direct from them as a consumer.
    • Thanks BankFodder for your latest, I'm in complete agreement on the subject of mediation and will be choosing to decline mediation, the longer timeline is not an issue for me, I will happily let the going to court run it's course. I really appreciate the support from the Consumer Action Group. I'll post the email text I'm sending to Evri's small claims in answer to their recent defence response. Regards, J    email text I'm sending to Evri's small claims in answer to their recent defence response:  
    • Sec127 (3) repealed, now gone. S. 127(3)-(5) repealed (6.4.2007) by Consumer Credit Act 2006 (c. 14), ss. {15}, 70, 71(2), {Sch. 4} (with Sch. 3 para. 11); S.I. 2007/123, art. 3(2), Sch. 2
    • We used to recommend that people accept mediation but our advice has changed. The mediation process is unclear. Before you can embark on it you have to agree that you are prepared to enter a compromise – and that means that you agree that you are prepared to give up some of your rights even though you are completely in the right and you are entitled to hundred percent of your money and even though EVRi are simply trying to obstruct you in order to discourage you and also to put others who might want to follow your example off from claiming and even though they have a legitimate basis for reimbursement. Mediation is not transparent. In addition to having to sign up that you are prepared to give up some of your rights, you will also have to agree not to reveal any details of the mediation – including the result of the mediation – so that the whole thing is kept secret. This is not open justice. Mediation has nothing to do with justice. The only way of getting justice is to make sure that this matter goes to trial unless EVRi or the other parcel delivery companies put their hands up and accept the responsibility even if they do it is a gesture of goodwill. Going to trial and winning at trial produces a judgement which we can then add to our small collection to assist other people who are in a similar boat. EVRi had been leading you around by the nose since at least January – and probably last year as well – and their whole purpose is simply to drag it out, to place obstacles in your way, to deter other people, and to make you wish that you'd never started the process and that you are prepared to give up your 300 quid. You shouldn't stand for it. You should take control. EVRi would prefer that you went to mediation and if nothing else that is one excellent reason why you should decline mediation and go to court. If it's good for them it's bad for you. On mediation form, you should sign that you are not prepared to compromise and that you are not prepared to keep the result secret but that you want to share the results with other people in similar circumstances. This means that the mediation won't go ahead. It will take slightly longer and you will have to pay a court fee but you will get that back when you win and you will have much greater satisfaction. Also, once you go the whole process, you will learn even more about bringing a small claim in the County Court so that if this kind of thing happens again you will know what to do and you will go ahead without any hesitation. Finally, if you call EVRi's bluff and refuse mediation and go to trial, there is a chance – maybe not a big chance – but there is a chance that they will agree to pay out your claim before trial simply in order to avoid a judgement. Another judgement against them will simply hurt the position even more and they really don't want this. 300 quid plus your costs is peanuts to them. They don't care about it. They will set it off against tax so the taxpayer will make their contribution. It's all about maintaining their business model of not being liable for anything, and limiting or excluding liability contrary to section 57 and section 72 of the consumer rights act.     And incidentally, there is a myth that if you refuse mediation that somehow it will go against you and the judge will take a dim view and be critical of you. This is precisely a myth. It's not true. It would be highly improper if any judge decided the case against you on anything other than the facts and the law of the case. So don't worry about that. The downside of declining mediation is that your case will take slightly longer. The upside is that if you win you will get all your money and you will have a judgement in your favour which will help others. The chances of you winning in this case are better than 95% and of course you would then receive 100% of your claim plus costs
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    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

      Car was dirty and test drive was two circuits of roundabout on entry to the showroom.  Was p/x my car and rushed by sales exec and a manager into buying the mini and a 3yr warranty that night, sale all wrapped up by 10pm.  They strongly advised me taking warranty out on car that age (2017) and confirmed it was honoured at over 500 UK registered garages.

      The next day, 18/1/24 noticed amber engine warning light on dashboard , immediately phoned BMW aftercare team to ask for it to be investigated asap at nearest garage to me. After 15 mins on hold was told only their 5 service centres across the UK can deal with car issues with earliest date for inspection in March ! Said I’m not happy with that given what sales team advised or driving car. Told an amber warning light only advisory so to drive with caution and call back when light goes red.

      I’m not happy to do this, drive the car or with the after care experience (a sign of further stresses to come) so want a refund and to return the car asap.

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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
      Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Problem with 2006 Toyota Verso semiautomatic car


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It's just my opinion of course, however I'd say any reasonable person would expect a gearbox to last longer than 6 months, never mind 6 hours, on a car with low mileage and a price of £4k.

 

You haven't bought new but you haven't exactly bought an old banger either.

 

I'd agree with Bankfodder's assessment way back at the start of the thread that you have a better than 95% chance of being successful. It wouldn't take a lot to convince a judge that the fault was present when you bought the car. Good luck.

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Yes, I think that you probably have a two pronged approach. The judge will ask what a reasonable person would expect – and if the answer is that this falls below those standards, then it becomes a defect – and even though it is a minor defect, it then allows the purchaser to assert their first six months rights under the contract. After six months, the judge will also ask whether the defect undermined the purpose of the contract and that then provides an answer as to what remedy should be awarded in respect of the breach.

In respect of the first six months defect, the burden of proof rests upon the trader to show that the defect did not exist. After six months, then the question of when the defect arose is at large – but by and large if it can be said is not a satisfactory quality then I think that any examination of when the defect occurred is pretty well irrelevant.

I think the question of when the defect occurred will tend to become important when you start to look at the limits of the period of reasonable expectation. A £3000 £4000 vehicle which fails within the first six months – or even within the first 12 months is almost certainly not matched up to reason expectations. After all, what a reasonable person is going to expect to pay £4000 for a vehicle which maybe needs £1000 or more work on it even before 12 months use?

On the other hand, if the vehicle has lasted three or four years without a problem and suddenly this gearbox fault occurs then I'm sure that a lot of discussion will be focused on what is the reason a life expectancy of the vehicle of that age, price, description – and all the other circumstances – as required by the Act.

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Hopefully over the last week there has been a greater sense of acknowledgement about the rights surrounding the short term right to reject, burden of proof, definition of satisfactory quality etc etc.

 

This should result in a better quality of advice being provided in the future but for now I think it might be an idea to correct the slightly misleading information provided in the sticky at the top of the 'General Motoring Issues' section, particularly post #10 and the rather pointless argument that appears to have ensued.  The problem with it being a sticky could be that those seeking advice could regard this as the definitive version.

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Thank you Chuffnut, King12345 and BankFodder for your latest comments. The latest twist is that the dealer is saying that he will not accept the independent engineer's report because (a) I chose the independent engineer not them, and (b) the conclusion supports my case! I chose the engineer completely at random from the IAEA website, just someone who is geographically close to the dealer and to the Toyota garage and with whom I have absolutely no connection. An echo of that now infamous quotation  "he would say that wouldn't he"!

 

The irony is I wanted to have an independent report because I felt that the dealer (and possibly a judge) could argue that a report from the Toyota garage alone was indeed a case of "they would say that wouldn't they" because it would be in their interest to identify a long list of faults so as to maximise the amount they would earn from repairing the car!

 

The ingenuity of the dealer knows no end. They are sticking to their mantra that we damaged the car because we are not experienced in using the Toyota MMT system. I can see this going to court now if they do not refund. In a way it may be the best outcome, as we would be able to add on all the additional costs that this fiasco has cost us. My dilemma is what to do about the car itself. My friend is the legal owner and it is insured in his name, yet it will be sitting in the dealers compound until the matter is sorted. Does anyone have any comments to make about this?

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You have received your advice here and you now see the kind of dealer you are involved with. Have you send them a letter of claim? I've rather lost track. If you have sent a letter of claim already then simply issue the papers. If you haven't sent a letter of claim then do so and then issue the papers. I don't think you have any choice.

Keep the insurance in place to avoid any complications of the vehicle becoming damaged and then the dealer denying responsibility et cetera. Keep a careful note of all associated expenses

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In fact going back, I noticed that I suggested that you send a letter of claim on 6 April. I don't believe you have done it. Had you done that then you would be in a position to issue the court papers immediately. Instead, you now have to wait a further 14 days. What a shame.

Sending a letter of claim would not have committed you to anything but it least it would have gotten that necessary pre-action protocol stepped out of the way. You're falling into the trap of getting into protracted exchanges and the only person who benefits is the dealer.

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Moving forward is letter before court action and 14 days later mcol.

No ifs, no buts.

Should they reply to the lba saying that they already made their position clear and they won't refund, you would be saving some time.

This is shocking.

You went to a Toyota dealer and got stitched up, imagine how confident the little back street dealers must feel!

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@BankFodder

Yes, you did but I wanted to wait until we got the official reports as there was a point where I began to doubt myself, asking myself could we have accidentally damaged the MMT system after all? The dealer now has both reports and so there will be no protracted exchanges after tomorrow because if the dealer does not do the BACS transfer refund then, then we will start the court procedure.

 

@king12345

What is the lba please? I clicked on the link but there is no explanation of this abbreviation there?

I'm not sure if you have understood our problem - the car was bought from a small dealer who have done the stitching up, the Toyota garage just carried out the diagnosis of the problem and are not involved with the sale of the car or the refund.

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It means letter before action which is basically the same as a letter of claim or letter before claim.

I suggested on the 6th of April you should send them one

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  • 5 months later...

Apologies for the prolonged radio silence!

 

To cut a very long story short,

I went back to Barclaycard (because I bought the car with my VISA card) and they offered to repair the car at a cost of £2500.

 

We accepted the offer because we were advised that even if we went to court and won the case, there was no guarantee that the dealer would give us our money back anyway or would end up paying us £10 a week for the next umpteen years.

 

The decision to have the car repaired was also made in the light of the fact that apart from the gearbox issue the rest of the car was in good nick. It is running fine after nearly 4 months now, so even if our friend gets a few more years out of it it will have been worth it.

 

Now that it is all settled I can reveal the name of the dealer - it was Thatcham Motor Company, in Thatcham, Berks.

Very pleasant to deal with at first whilst everything was ok but boy oh boy, beware if anything goes wrong!

 

Similarly Momentum Warranties who provided the 6 months "warranty".

On paper this warranty apparently covers practically every conceivable fault that the car might develop until you try to make a claim!

 

It seems that only if a component physically breaks that any cover is provided, otherwise they will hide behind the "fair wear and tear" get-out clause.

Can an ECU unit be subject to wear and tear?

 

I would not touch either of these outfits again with the proverbial barge pole. Buyer beware!

 

One further thing I forgot to mention.

We ran up considerable expenses trying to sort all the issues

- the engineer's reports, travel costs etc.

 

Is it too late to try to claim these back from the dealer now?

I just ran out of energy by the time Barclaycard agreed to pay for the repair but now the dust has settled I am up for it again!

 

Would this have to be done via the Small Claims Court?

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yes only court...

 

can I confirm this was settled via Barclaycard and chargeback as it was a debit card, rather than section 75 via a creditcard?

 

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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so won by a section 75 claim under the consumer credit act then

 

consequential losses are also covered by section 75 as the card provide is equally liable as you've already found out

 

as for the dealer and court

there is no time limit, well 6yrs I believe

 

though it would be a tough battle but made slightly easier as BC coughed up.

but again what would you in all reality 'win' probably go bust or change name

 

 

 

 

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Thanks for the info. It would be worthwhile proceeding to recover consequential losses because there is a matter of principle at stake. I can imagine that the dealer is probably feeling quite smug having made a profit from the sale of a dodgy car with absolutely no come-back other than a less than glowing review on Trustpilot. Also we are not talking about a small amount here, we are talking many hundreds of pounds.

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well thats the gamble you  take in small claimd court.

 

though as i say

with bc argreeing to pay the repairs [should have also been your losses mind!]

it does strenghten your case for a win in a claim.

 

now if you'll ever get anything out of him even if you do

is a very different matter.

 

 

 

 

 

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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