Bought a Clocked & damaged Car

[BankFodder]

I wouldn't start getting hung up on CPUT.  There are enough issues with the breach of contract and the misrepresentation to get on with.

You don't need to have any knowledge about cobs at the moment. Simply that they have a duty to treat you fairly and to communicate with you fairly and it is clear that they haven't done by misleading you as to your legal obligations under the contract. I'm sure that they know the truth of the matter and if not then once again they are in a dominant position, holding out expertise and it is their obligation to communicate the correct advice to you – and they clearly have not. I would say that they are being as reckless as the dealers were in misrepresenting the mileage. Furthermore, if you have provided them with the video which clearly says that the car as immaculate and they are same to you that they have not noticed any evidence of that then they are also being unfair with you.

If you want to write a letter of claim then we will help you. However if you have decided to go with professional legal advice then I think that we have to stop

[sallyblackburn]

I'm not looking to get legal advice, what I meant was that if it goes to a trial hearing i'll just pay to be represented so I don't have to worry on the day. Legal advice and LBA's etc would cost £2-3k and a rep on the day is much better value I think, especially when I won't get costs unless they really annoy the court.

 

 

[BankFodder]

Thanks for the donation. We've received it.

Although you are suffering from nervousness, you will be better off doing the hearing yourself. As a litigant in person you have a lot more licence and as long as your papers are organised you will find it very easy. You should look at our guidance on organising a court familiarisation visit.

Also you should look at our advice on preparing your court bundle.

So I'm still asking the question about what decisions have you come to.

[sallyblackburn]

I want to just sue for damages and just sue the fiance company. As you say they have an obligation to treat me fairly in addition to the s.75 rights. I will send them an LBA and attach the draft particulars. Other than the style did you see any problems with them? I got them off a template and amended them which is why they are so formal.

[BankFodder]

Don't attach the draft particulars. It's useless.

 

I suggest that you send something broadly like this: –
 

Quote

 

Dear Sir/Mdm

Letter of claim

As you know, on X X X date I purchased a vehicle from X X X dealers financed by your credit card.

I have already informed you that the car which was described as "immaculate" turned out to have accident damage which had been poorly repaired. More seriously, it also transpired that the car mileage was incorrectly recorded and that the previous MOT certificates showed that the recorded mileage was false.

Clearly the dealer has misrepresented the car.

I have already contacted you about this and you have tried to tell me that I had an obligation to inspect the car when I collected it. This is obviously untrue and I'm sure you must realise this. Firstly, I relied on the description given by the dealer and under the consumer rights act I'm entitled to do this.

Secondly, although it is not especially relevant, the contract had already been made before I visited the garage to collect the vehicle.

Thirdly, any inspection would not have revealed the false mileage and as this was a reckless misrepresentation by the dealer, this creates a liability in addition to the contractual breach.

As the company which financed the purchase, you are liable under section 75 of the Consumer Credit Act as if you were the seller. As you have declined to accept any responsibility so far I am proposing to sue you unless you provide me with a full reimbursement of the cost of the vehicle and also any losses which I have recently incurred, within 14 days.

I should also warn you that when I sue you in the County Court, I shall show the judge the explanations that you have given for declining liability and in particular your attempt to mislead me by telling me that I had a legal obligation to inspect the vehicle before I took it away.
I'm confident that I will obtain a judgement against you and I am also confident that the judge will remark in the summing up that you have misled me on this point. Once I have this, I shall then proceed to sue you separately for treating me unfairly contrary to the Conduct of Business regulations contained in the FCA handbook.

Believe me
 

 

 

[sallyblackburn]

Thank you

[Manxman in exile]

I've not read all the latest posts but just a couple of possible additions to BankFodder's letter before claim to consider?

 

First, I'd think about adding the underlined bit in bold, if it is true: 

 

"More seriously, it also transpired that the car mileage was incorrectly recorded and that the previous MOT certificates and service history showed that the recorded mileage was false"

 

I just think that that strengthens your case because MOT mileages may not always be reliable, but service history mileages ought to be - after all, mileage is a service criteria so it ought to be correctly recorded at service.

 

Second possibly?:  

 

"Thirdly, any physical inspection of the car would not have revealed the false mileage and as this was a reckless misrepresentation by the dealer, this creates a liability in addition to the contractual breach"

 

Just a couple of suggestions...

[farmlama]

Quick question, but from reading this, I get the impression that you have not had the body works carried out, is this correct?

 

if you have an estimate but not had the works carried out, then you have not yet sustained this loss yet and it may be questioned why you didn’t get it repaired in the last two years and that as so long has passed that it does not really need any repair. If the estimate is from a main dealer, it is likely that a local garage would also be able to repair for a much lower price too so if you was to get it repaired, your loss may be much less than previously thought.

[BankFodder]

 

12 hours ago, farmlama said:

Quick question, but from reading this, I get the impression that you have not had the body works carried out, is this correct?

 

if you have an estimate but not had the works carried out, then you have not yet sustained this loss yet and it may be questioned why you didn’t get it repaired in the last two years and that as so long has passed that it does not really need any repair. If the estimate is from a main dealer, it is likely that a local garage would also be able to repair for a much lower price too so if you was to get it repaired, your loss may be much less than previously thought.

 

Other than the point about competing quotes (which would have to be subject to equal quality of workmanship) I disagree completely with what has been written.

I don't see how you can say that no loss has been sustained. If you make a contract for a vehicle or anything for £10,000 based upon a description which turns out to be false and means that instead of your expected gain of the £10,000 vehicle, you come into possession of a £7000 vehicle then clearly you have suffered a £3000 expectation loss. I really don't see how you can say anything else about it.

Additionally, and in my view, the main point here is that the car was clocked. This is extremely serious and although the bodywork can be repaired to a proper standard – which may be the kind of thing that can only be undertaken by a main dealer – the fact that the vehicle is clocked cannot be repaired. I think any attempt to sell a vehicle where it was admitted that the mileage was not true and in fact nobody knew the true mileage because it had been deliberately interfered with, would make the vehicle pretty well unsaleable. It may well be that the vehicle has lost as much as 75% of its value. Not only because of the uncertain mileage but also because of the fact that the vehicle has been tampered with and it has lost its integrity.

As to the question as to why it was not repaired earlier and that this would in some way suggest that there was no need to have it repaired which I take to be a veiled suggestion that in that case they would be no cause of action. This would be an extraordinary position. This would in effect be saying that you can only sue the person who damaged your vehicle if you can show that you needed a vehicle in good condition!.

 

On 04/09/2020 at 20:35, sallyblackburn said:

Thansk so much for all the tips, I know I am being somewhat difficult. I have sent the LBA now.

Have you registered with Moneyclaim online and have you started preparing your case? Have you read around about the steps needed to bring a small claim?

 

[BankFodder]

@sallyblackburn I've had a few thoughts about your decision not to sue both defendants but only the credit card company.

 

I think this is a wrong decision because you will not be able to alleged misrepresentation against the credit card company. Under Section 75 of the Consumer Credit Act the finance company will be liable for any contractual breaches. However, misrepresentation is effectively a tort/quasi contract and you would have to bring an action against the dealer in respect of this.

I think that you have been the victim of a serious misrepresentation and if the judge agreed that the misrepresentation was reckless – or even if the judge decided that it was fraudulent – this would increase the level of damages which you might be awarded.

I think you should revisit your decision to sue only the credit card company and I think that you should sue both of them

[Manxman in exile]

Sally - sorry if I've missed this but, like BankFodder, I don't understand your apparent aversion to suing both the dealer and the credit card company.  It is after all the dealer who is the primary culprit* here and I think it looks a bit odd if you don't attempt to join the dealer with the CC company when enforcing your consumer rights through the courts.

 

Also, BF has repeatedly suggested you try to get a full refund through the courts, but you seem to want to keep the car and claim damages.  I know you want to keep the claim below £10k, but my understanding from your later posts is that you paid less than £10k anyway(?), and you haven't actually incurred any further losses because you haven't had the repairs done yet (if I've understood correctly).  Is there a particular reason why you are so reluctant to part with the car or positively want to keep it?  (As BF has said, you have no idea of the true mileage and it's probably suffered undisclosed accident damage.  It seems a bit of an open-ended risk deciding you'd rather keep the car than give it back?)

 

*Which is not to say that the CC company are not at fault too!

Edited September 11, 2020 by Manxman in exile

[sallyblackburn]

Thanks for the replies, I am listening and When I get the reply from the LBA, I will certainly revisit the suing of the seller too.

 

However, just for the moment, misrepresentation is covered by the CCA 1974 isn't it?

 

https://www.lexology.com/library/detail.aspx?g=530c1d76-8076-450b-adf3-8340720f3fc3

 

 

[BankFodder]

Well spotted. Are you able to get access to the rest of the article?

I certainly didn't realise that they would be liable for misrepresentation as well.

[sallyblackburn]

It let me view the article first time around. here is the cached page.

 

https://webcache.googleusercontent.com/search?q=cache:9wparUkfzQgJ:https://www.lexology.com/library/detail.aspx%3Fg%3D530c1d76-8076-450b-adf3-8340720f3fc3+&cd=14&hl=en&ct=clnk&gl=uk

 

judgment added to post

 

Also, the 1974 CCA uses the word misrepresentation.

 

https://www.legislation.gov.uk/ukpga/1974/39/section/75

 

lastly see F4

 

https://www.legislation.gov.uk/ukpga/1967/7

Malouf-v-MBNA.pdf

Edited September 11, 2020 by sallyblackburn

[sallyblackburn]

On 09/09/2020 at 21:54, farmlama said:

Quick question, but from reading this, I get the impression that you have not had the body works carried out, is this correct?

 

if you have an estimate but not had the works carried out, then you have not yet sustained this loss yet and it may be questioned why you didn’t get it repaired in the last two years and that as so long has passed that it does not really need any repair. If the estimate is from a main dealer, it is likely that a local garage would also be able to repair for a much lower price too so if you was to get it repaired, your loss may be much less than previously thought.

I missed this. It's a good question, with the simple answer that I do not have close to £3 grand. The quote was not from the dealership as the dealerships up here are all owned by the seller, and the quote is from an local independent, but insurance approved accident centre. Given the level of works, I have confirmed the quote is reasonable. 

[sallyblackburn]

Had the SAR back from the seller today. There is a lot missing (including emails I already have) so I have made a complaint, but they included an email from the salesman who agreed the sale to his boss that described my husband as " f#@#ker moaning about paint on his car, and tyres and mileage letter", which was nice of them. No SAR data or reply to LBA from creation yet.  

[BankFodder]

So you see, an SAR can sometimes produce quite interesting things!

You complained to them – presumably.

When does the deadline expire for Creation?

[sallyblackburn]

I complained to them about the lack of data, but not the email. Given their previous responses, they won't do anything, but if they don't provide all the data, I'll get the ICO involved.

 

Just had further emails from Mercedes Benz themselves for the SAR I did with them. They too have missed a huge amount of stuff, they just provided a summary, which was odd, but after a complaint they are now getting it, they seemed apologetic and have provided more within the hour and promised to find the other stuff I queried.

 

Creation are due by 30th September. With both me and husband doing SAR for Marshall, Creation and Mercedes Benz, it's quite a lot of data, so i'm happy for them to take until the deadline to be honest.

[BankFodder]

Have you looked at the guidance we've given on sorting out your documents when you have done a subject access request? Similar advice to dealing with your court bundle

[sallyblackburn]

Thanks for the link, i'll read it now. I'll be interested to see what Marshalls include in their reply to me. My husbands was pretty dull, apart from the one email, which shows their attitude towards customers, but he had few dealings with them, mine should be more substantial I hope.

[BankFodder]

Actually I can't find the link for organising your subject access request. There are so many auto links here I just can't remember which one it is. The court bundle one might help you but is not directly applicable

[sallyblackburn]

Further Data from MB after complaint about failure to disclose all data last night. Miraculously they have now included communications between themselves and Marshall Portsmouth following my august 2020 complaint to Gary Savage the MB UK CEO. In short, when you email the CEO, it goes from his PA into a case system, and is taken up by an EU based Customer team who tell the dealer to provide a response.

 

In this case, after a week Marshalls told them they couldn't comment about the paint after so long and didn't engage about the mileage issue and MB replied to me based on this one line email from Marshall portsmouth rejecting my complaint.

 

Whilst the data isn't earth shattering it shows that even complaining to the CEO of MB has little impact and they really don't push back on the dealerships.

 

 

Just my data from Marshall Group and Creation due now. LBA expires on friday this week. SRA deadlines pass for both companies on Monday.

Edited September 17, 2020 by sallyblackburn

[Manxman in exile]

So MB UK specifically asked the dealer about the "clocking" question, and the dealer chose not to answer?  And MB UK didn't notice?

 

If you have evidence from the internal emails that the dealer appears to be avoiding addressing this issue, I'd have thought(?) that was quite good for your case.  See what BankFodder thinks.

[sallyblackburn]

MB cut and pasted my complaint which included the mileage and Marshall Portsmouth ignored the question. MB genuinely do not seem to care, which is a surprise given that the mileage discrepancy undermines the purpose approved used scheme.

[Manxman in exile]

Yeah - it sort of detracts from the whole point of a manufacturer approved used car scheme.

 

I don't want to distract you from what you've decided to do but I wonder if it's worth specifically raising that point with MB again.  I wonder if they don't realise that it does make a mockery of their brand name if they approve a used car in those circumstances?

 

I simply don't know if that would be likely to affect any claim you make - for good or bad.