Return of vehicle, distance sale

[Aton2244]

Thank you for your time,

 

I will say because I have the 12 months and 14 days and he has14 days since last Thursday to respond I certainly won't be returning the vehicle until such time he has responded to the information I have sent him, it's just annoying that I sent the template which said I am to return the car at my cost. I know that 1850 plus delivery either way doesn't sound expensive to you, but as a single parent it is alot of money. 

[BankFodder]

On the contrary, it sounds like a lot of money to me and having to add a 400 mile journey onto it it makes it an absolutely bad bargain

[Aton2244]

Tick tock...thought I would give a little update. 

 

I have yet to hear from the car dealer, so looking likely that I'll be waiting  another 14 days after my next correspondence is sent to him tomorrow. Likely for yet again no reply, I presume if he does not want to go through the ADR route which I have been told I need to ask him if he will do, I can then start the ball rolling for court once the 14 days are up?

[BankFodder]

Now you don't need to ask him if he wants to go through an ADR route. Frankly if he chooses that route outside the court process/mediation – then there is nothing to enforce against him in case he reneges.

[Aton2244]

It appears advice Direct Scotland want me to ask him to go through ADR even though he doesn't have to accept.

It is my understanding that if it lands up in court, a judge will consider that all measures have been taken to settle before reaching court otherwise they seem to take a dim view.

[BankFodder]

Okay if this is a Scottish case then I'm afraid I don't know the way that mediation is handled. However, without going back through the thread, I have the impression that you bought this car in England and therefore it may be an English contract and would have to be dealt with in the English courts – in which case mediation would be proposed after the defendant has decided to put in a defence

[Aton2244]

I'm guessing because the car dealer gave me no pre or post contract and I am raising the issue, then it will be dealt with here?

[Aton2244]

Dealer finally responded to me, a very long email response however which half of it was untruths and completely irrelevant. He also didn't respond whether or not he was willing to enter ADR through an independent body, or offering refund so has now had the final letter before action letter sent, all brand new to me so have absolutely no idea what the next steps will be as advice Direct have now pointed me to CAB/trading standards to advise through the court process etc.  

 

Already been stressful enough time, but I'm determined to take it through the court and receive the refund I am entitled to.

[BankFodder]

Okay so you have sent a letter of claim. That's fine – but an important rule is that you should be aware of all the steps that you have to take before you commence any line of action. You send letter of claim without having done that so that tends to mean that you aren't really certain of what you are taking on when you have made the threat.

Bringing a County Court claim is not a big deal – but in terms of being confident about what you're doing, you should understand the steps.

One thing I haven't figured out yet is whether this is a Scottish claim or an English claim.  I'm hoping that @Andyorch can take us through it if it is a Scottish claim

[Aton2244]

According to advice Direct Scotland it will be in a Scottish Court,  I have emailed CAB and will call them tomorrow 

[BankFodder]

Yes, I think that that is an important first step – and I'm sorry to say that it would have been better for you to have been aware of the steps before you fired off a letter of claim. I think you need to doublecheck on the Scottish courts website as well. Not only will they give you information as to jurisdiction – but you will find some of the basic rules concerning the starting of a claim in Scotland as well as the steps to follow.

I'm afraid that I don't think that Scottish County Court procedure is a particularly strong area on this forum. 10 years ago or so, we used to have a lot of input from people who had cases in Scotland – but that seems to have died off recently.

Any information that you give us about what you are doing will be helpful – and I'm sure that some people will have some knowledge or experience and will be happy to contribute.

So you need to know the steps in bringing the claim. How you begin the claim – and then what the various timescales after that.

On the basis that you win your claim will then have to understand how you go about enforcement. Some people think that bringing a claim and then winning is the end of the matter. Unfortunately, enforcement is a totally separate step and although you might win your case and you have a judgement in your hand, you then have to make a separate application to enforce the judgement and that is often where things can go wrong. Judgements are quite often easy to obtain – but where have got a defendant use deliberately evasive or slippery, you then find that enforcement could even become impossible. It's very frustrating.

If you consult the Scottish citizens advice website you will probably get good advice there as well.

 

[AndyOrch]

We do have a Scotland Financial Legal issues Forum which will give you plenty of advice re the Legal Position.

 

https://www.consumeractiongroup.co.uk/forum/371-scotland-financial-legal-issues/

 

Also because the contract was completed and purchased in Birmingham....I think it may be an English Claim through MCOL... with regards to suing out of jurisdiction  where the permission of the court is not required for service you can do so under Civil Procedure Rules 6.32 or 6.33.

Andy

[Aton2244]

There was no contract,  also distance sale...never even went to Birmingham,  wasn't given any rights on cancellation etc...

[dx100uk]

if you reported the car faulty within 14 days of receiving it , entitling you to a full refund - it will be a std english claim through MCOL.

 

 

if you return the car and he refunds its sale price, then it would be a scottish claim under simple procedure Rules for your 2 X delivery/collection costs.

 

 

 

 

 

 

 

[Aton2244]

Not faulty, well other than the sunroof not working/bad paint job peeling off everywhere that was not apparent in the pictures... and on the invoice sold as spares / restoration which he said I had agreed to, I hadn't. 

 

He explained the clutch slipped slightly but not bad as the previous owner drove it from Scotland,  offered to get it repaired at trade price but couldn't get me a price until the day before I had arranged transport to get it collected...

 

if I return the car at my cost then it becomes an issue for the Scottish Court service? 

And on the unlikely chance he collects it and refunds me, that's the end of it or doesn't refund me it is then for an English court? 

 

Sorry for all the questions, however since he gave me no information on cancellation etc as I believe it extends to 14 days to cancel (distance sale) to 12 months and 14 days, I don't actually need a reason to cancel within 14 days according to the motor ombudsman, and I informed the dealer 3 days after the car had been delivered and 2 days after I had seen the car as I was finding out about what rights I had.  

 

 

[dx100uk]

firstly, lets get a few things out the way...

 

a trade dealer cannot sell you , a member of joe public, a car under the trader to trader, sold as seen scheme.

that's just std rubbish dealers come out with to buff unaware consumers away once they complain about xyz after a car sale.

it's been blown out the water so many times and numerous traders have been fined £1000's in court by authorities over such.

 

as for this 14 days is extended by 12mts because of no written contract with rights to cancel etc, i've never heard of it and anyway you agreed the sale be it verbal or otherwise...dead duck.

 

can you clarify a few points which not 100% clear from your posts..just for clarity.

 

you did NOT travel to Brum to view the car...i think not..correct?

on what date did you actually receive the car in your possession?

on what dates did you complain about things and what did you complain about?

 

 

 

 

[Aton2244]

I didn't go to brum no, I arranged a transporter through shiply at a 3rd of the price the dealer quoted, he quoted over 900 for delivery.

 

I took delivery of the car on the Tuesday 25th of august and made my complaint about the sales invoice stating was sold as spares/ restoration then.

 

Under the consumer contracts cancellation etc under distance sale a trader must provide on a durable medium any rights to cancel etc, he didn't therefore the right to cancel extends to 12 months 14 days  please see here 

 

https://www.themotorombudsman.org/knowledge-base/can-i-return-my-car-within-14-days-of-buying-it 

information all available on the government legislation pages on that subject. 

 

Never had to do this before so the process is all brand new to me.

[dx100uk]

pers i think you are going to have a very hard time proving you were not aware of the 14days limit so it's extended by another 12mts.

 

has the dealer stated he will refund you the money on the car if you return it?

[Aton2244]

It's not really a case of me not knowing which I didn't anyway, it's more a case of him not providing me any of the information on a durable medium, and no he hasn't. 

[dx100uk]

said it once i'll say it again - you agreed the sale verbally ...dead duck.

there is NO requirement for him to supply you with a cancellation form on durable medium (whatever that is)

 

his only remit - is to make it available to you or indicate how to get it by the same medium as the sale.

your contract was a verbal one..you cannot dispute or not what he did/didn't say over the phone (i'e see my website ..go to xxx to get it).

 

Carefully reading the bits in the 1st few posts whereby you relate what the trader might have stated..

and what bankfodder has already eluded too later. i agree and concur that:

 

you have 2 choices.

 

1.return the car at your expense.

 

the trader should refund the price of the car (contract ended)

 

you can also ask for both sets of transportation fees back at the same time

 

if he just refunds the price of the car thus ending the contract... you go for a damages claim at your local Scottish court. (but i will suspect he'll question jurisdiction)

 

if doesn't refund the CAR - the contract is still active - you launch an english claim bolting on your transportation costs.

 

or 

 

keep the car for now

 

launch an english claim that encompasses not only the car price, with it not being fit for purpose, but also your transportation costs.

 

the latter i suggest is somewhat risky.

[Aton2244]

If you're not sure what giving someone cancellation rights etc on a durable medium is, I suggest you do as I did and do a bit of reading up on the subject, it means it must be either given on paper / email any other hard copy which can be proven and signed by me, the consumer. As yet, I have signed absolutely nothing, the paperwork was signed unbeknownst to me until I saw the car/paperwork by the shiply transporter on my behalf. 

 

Trading standards have already agreed because he did not supply me with this information then it takes the right to cancel extended by 12 months, I'm pretty sure they're well aware of the legislation pertaining this. 

 

In any case,  he was notified well within the 14 day period (no reason needed), and because he didn't supply me with any cancellation rights he is bound by law to pay for the collection of the car and issue a refund within 14 days, he hasn't and I believe doesn't think I will pursue it any further. Unfortunately he is greatly mistaken.

 

Let me be clear here, if he had provided me with information that I was to return the car, I would have done so by now, however because he gave me no information on any cancellation the onus is on him. 

[dx100uk]

Misleading consumers by using phrases such as “Trade Sale – Sold as Seen” or “No Refunds” or issuing a trade invoice ....is not only illegal but also completely voids any contract implied or otherwise.

 

14 days extended or not is thus immaterial to what you can do.

 

he was notified well within the 14 day period (no reason needed), ...but..you have to return the car for this to kick in if you intend to rely upon it.

 

https://www.coventrytelegraph.net/news/coventry-news/dealership-fined-thousands-selling-unroadworthy-16776746

https://theusedcarguy.co.uk/car-scams/sold-as-seen-we-think-not/

https://www.theaa.com/car-buying/legal-rights

 

[Aton2244]

https://www.mylawyer.co.uk/consumer-right-to-cancel-a-A76062D77400/

 

I appreciate your response, I am also aware that selling to a private individual on a trade invoice is a big no, no... he was already trying to worm his way out of any responsibility before I had even seen any paperwork.   

 

Please see the link I have provided that states quite clearly he has already committed an offence for not providing me with any cancellation rights and per the distance sale under the 2013 act.

 

And it does indeed extend it by 12 months,  he still has to collect the vehicle, I only have to make it available for collection which it is, at any time he would like to collect it.  

 

I am definitely not in the wrong here, unfortunately for him he is, in more than one way. 

[dx100uk]

1 hour ago, Aton2244 said:

I am also aware that selling to a private individual on a trade invoice is a big no, no.

1 hour ago, dx100uk said:

you have 2 choices.

 

1.return the car at your expense.

 

the trader should refund the price of the car (contract ended)

 

you can also ask for both sets of transportation fees back at the same time

 

if he just refunds the price of the car thus ending the contract... you go for a damages claim at your local Scottish court. (but i will suspect he'll question jurisdiction)

 

if doesn't refund the CAR - the contract is still active - you launch an english claim bolting on your transportation costs.

 

or 

 

keep the car for now

 

launch an english claim that encompasses not only the car price, with it not being fit for purpose, but also your transportation costs.

 

the latter i suggest is somewhat risky.

 

selling to a private individual on a trade invoice is a big no, no

 

then surely that's your claim.?

 

you can't have it both ways.

 

either there is a contract and the relevant consumer regulations apply.

or

there isn't a contract and no consumer rights apply whatsoever.

 

.................

 

as it stands you are repeatedly stating you signed nothing nor agreed to anything nor did he present or imply any rights.. let alone the 14 days given under a 'durable medium'. all points the sameway to me. he nor you can prove nor want too ... that you have any contract between yourselves.

................

 

you want your moneyback

he wants his car back.

 

.......

 

 

[Aton2244]

Quite clearly he doesn't want the car back otherwise he would have picked it up by now, and with all due respect you clearly haven't read the link I posted earlier.

 

I notified him within the 14 day period, in fact some 3 days after the car had been delivered and 2 days after me actually seeing the car/invoice etc so within plenty of time.

I have been fully aware of my rights since the start and I am not about to just send him the car back, just because.

 

In any event, he has been less than accommodating to his responsibilities to provide me with a suitable resolution,  of which I have said since the 3rd day after delivery of the vehicle,  and no I didn't have to give a reason, however, there are many which I told him on the 3rd day after delivery.  He has thus far not complied, which takes me to where I am now.