Return of vehicle, distance sale

[BankFodder]

I don't think there'll be any problem if and when it gets in front of a judge. However I think that there is a big possibility that enforcement is going to be a nightmare.

I hope not

[Aton2244]

36 minutes ago, Hammy1962 said:

Keep the sarcasm for when you are sat in front of a Judge. See how far you get with that.

 

H

Well, perhaps pointing that out in the first place was a tad sarcastic, so, I generally reply to sarcasm with sarcasm. 

 

Bottom line is, the reason distance sales open more avenues for a consumerrights etc is because people get duped by dodgy traders rather frequently.  

 

 

I believe your own first response was, good luck with the 12 months extension, which is already in my favour, so a bit more savvy in knowing what you're talking about before you responded would maybe have prevented me from pointing out that yes, I do indeed have the 12 months extension.

 

My apologies you said it should be interesting. .. goodness knows what you meant by that.

Edited September 26, 2020 by Aton2244

[Aton2244]

36 minutes ago, BankFodder said:

I don't think there'll be any problem if and when it gets in front of a judge. However I think that there is a big possibility that enforcement is going to be a nightmare.

I hope not

I would like to think not too, hindsight is a wonderful thing, and I did say before had this all been done in a face to face situation I wouldn't be in this current predicament. I mentioned that he said after his first initial call to me about the clutch/strut needing replaced however the car requires a completely new paint job and stripping of the 'wrap' (actually a badly attempted effort at spraying with a plasti dip paint) which wasn't apparent in any of the pictures, nor did he mention it. However, even this doesn't come into it with the 14 days to cancel as no reason has to be given. 

 

I'm hopeful that it if goes before a judge and the fact it was sold on a trade sales invoice will be case closed in my favour in under 5 minutes. 

[BankFodder]

As has already been said here, whether it takes five minutes or longer, the case will be closed in your favour.

Enforcement is going to be a completely different issue.

When do you issue your claim?

Have you drafted the particulars yet? You may want to post them up here so we can have a look and comment before you actually issue the claim

[Aton2244]

I have not done so yet no, as this is completely alien to me, this is why I have requested assistance from CA, if I had known that consumer direct wouldn't be able to help me in this regard I would have contacted them sooner. 

 

I could post the response I had from the dealer however there probably isn't enough space on the server! It was quite the novel of nonsense. This would maybe give you an insight as to what I am dealing with though. That said, you probably already have a fair idea!

 

Forgot to add that I presume I would need to issue the claim next Thursday which would have reached the end of the 7 day notice before action letter sent to the dealer last Wednesday 

 

https://www.citizensadvice.org.uk/scotland/law-and-courts/legal-system-s/taking-legal-action-s/taking-someone-to-court-using-simple-procedure-s/simple-procedure/help-with-the-simple-procedure-claim-form/

 

I believe this is what I'll be completing next Thursday 

[BankFodder]

I'm interested in your comments as to why should you have to explain any details about the condition of the car – basically because you feel that you have got adequate rights under the distance selling rules

When you litigate, if you have two good arguments to base your claim upon then you are better off using both. That means that if one founders, the other one may hold up.

I think you should give us some information about the condition of the car and also give us insight of the advertisement and the claims made for it we may be able to view some advice on that issue.

 

[Aton2244]

See a previous post where I mentioned that the vehicle would need a complete stripping of the badly applied plasti dip paint and resprayed to the original colour.  I can provide a copy of the advert,  which also states that the timing belt (chain) had been replaced backed up by an invoice, I have been through the paperwork 3 times now and haven't been able to locate it. 

 

The advert was as follows;

 

 

 

MAKE	TOYOTA
MODEL	CELICA
REGNUMBER	A16BYN
PRICE	1977
YEAR	2003
MILEAGE	80000
TRADEFLAG	Trade
NAME	Evolve Cars
	*** Good afternoon dear customers - Here is what we believe is a EXTREMELY RARE OPPORTUNITY to what we believe is the ONLY CELICA in the country with this COLOUR & spec ! *** GENUINE MILEAGE on a 2003 REGISTERED plate with supporting documents including - FSH, Full HPI REPORT, Full vosa printout, every single previous MOT & more importantly CERTIFICATE from the National MILEAGE Register to verify !   Has just benefited from a FULL 1 YEARS MOT / 36 POINT CHECK & even a FULL DIAGNOSTIC scan showing NO CURRENT engine or gearbox faults - complete with receipts from the garage.   Has FULL SERVICE HISTORY with 11 stamps in the book, most of them being TOYOTA with loads of main dealer service invoices & printouts. It has even had the all important TIMING BELT done too by TOYOTA @ the cost of £320 fully backed up with invoice !   Previous owner was a FIRE ENGINEER & has just drove it all the way down from SUNNY SCOTLAND ! Has just benefited from a £300 SERVICE BILL. Comes with LOVELY BLACK / GREY LEATHER INTERIOR, Black polished alloys & EXPENSIVE SOUND ENTERTAINMENT system.   Please remember that this CELICA has only done around 6 k miles per year, which is absolutely nothing for one of these engines - BRAND NEW, this would have set you back in excess of £17 k new, so grab a used bargain at this price !   *** PLEASE NOTE - The private plate DOES NOT COME with the car & is in the process of being RETAINED - The car will come back with the standard 03 REG from DVLA, we will update this advert as soon as it comes back - Thank you for your patience   *** VIEWING BY MUTUAL APPOINTMENT ONLY. Based in BIRMINGHAM. Part Exchange & NATIONWIDE DELIVERY available.   Any questions please do not hesitate to give us a ring -Thank you   ***, Next MOT due 17/08/2021, Black Full leather interior, Alarm, Alloy Wheels (17in), Climate Control, Electric Windows (Front), In Car Entertainment (Radio/Cassette/CD Autochanger), Upholstery Leather. 4 seats, Blue, £1,977
ATTENTION_GRABBER	RARE CELICA VVLI WRAPPED BLUE

 

 

[BankFodder]

Thank you.  And have you had an independent assessment of the car in order to address all of the elements of the car which have been referred to in the advertisement?

[Aton2244]

Unfortunately I haven't no, I believe that it might still be a possibility to do so, however as I was cancelling under the 14 days I didn't think it would be beneficial. 

[BankFodder]

It probably won't be necessary but on the other hand, no harm done. You could send him notice that you are challenging the points in his advertisement. This the mount point by point and tell him that you are having these points independently assessed and that you will be proposing to recover the costs of an assessment from him in the event that he attempts to dispute any of it.

I think if you lay down a paper trail and show that you have behaved transparently and warned him of any costs, that you will probably be awarded them.

Once again, whether you can enforce it – is another matter.

[Aton2244]

I would think I would have a strong enough claim with regards to him selling the vehicle on a trade sales invoice, at the moment I believe everything else is perhaps irrelevant... 

 

I will keep updated on any progress with TS if they bother to respond and advice given by CAB as and when I hear back,

 

Thank you again.

[Manxman in exile]

What does "TRADEFLAG  Trade" signify in the advert? 

Is that meant to warn potential buyers that this is a trade sale only?  If so, does it have any effect?

 

Just to add on the OP's behalf,

I don't think she has been "hung up" on getting trading standards involved. 

She seems to have done so initially because she was advised to do so by some advice service in Scotland. 

 

But the OP has throughout this thread been arguing on her consumer rights position that she has an extended period to cancel her purchase because it's a distance sale and because she wasn't notified of her right to cancel in a "durable medium" before buying the car. 

 

Additionally, because she was not given any of that pre-contract information about cancellation and return costs, she has argued that the dealer is liable to pay the return costs.  Whether that is a good argument or not, and whether it is likely to be a practical way of getting her money back, I won't comment on, but that seems to me to have been her consistent approach throughout.  (It was somebody else who didn't seem to follow her argument about an extended cancellation period and didn't understand the references to a "durable medium" who brought up using TS to prosecute the dealer.)

 

Anyway - to move on - it seems to me that the OP has focussed on her right to cancel a distance sale for no reason, rather than to reject the car as faulty, because (and OP, please correct me if I'm wrong) she doesn't really think the car is faulty.

 

Now the OP may be completely mistaken and foolhardy in approaching this problem in the way she has (it's not clear to me whether she is or isn't) but if she is, I think it needs to be very clearly pointed out to her. 

 

Unfortunately, many posts seem to have progressed on the basis that she was rejecting the car (not cancelling the purchase) or that she should get TS to prosecute the dealer.  The OP just needs to be clearly told either "Yes - you're doing the right thing" or "No - you're doing the wrong thing - do this instead".

 

I think that's why the thread has droned on. 

 

(I agree that if the dealer doesn't settle out of court there will be arguments about whether it's an English or a Scottish case and I'm sure there will be problems enforcing any judgment whatever approach is taken).

 

 

 

 

[dx100uk]

don't think there is any ref to TS prosecuting the dealer upon the op's behalf made?

i believe ref was made about getting TS onboard, which has already been done, 

 

then p'haps they might be willing to write a letter or statement etc for later in court proceedings which appears to have happened in many cases i'm reading, then TS publicise the case as a win for them..:)

 

i think it's already been clarified that as the dealer is in England , this would be an English Court Claim?

a Scottish claim would hold no water as the dealer would simply shout out of jurisdiction, thus delaying things more.?

 

a scottish claim for damages could be raised  under the SPC rules should say the dealer have collected the car after refunding but failed to reimburse the existing transportation costs.. ??

[Aton2244]

https://picclick.co.uk/Johns-Motorcare-Supplies-Used-Car-Vehicle-Sales-Trade-254575623299.html#&gid=1&pid=3

 

Just for clarification this is the invoice the dealer used. I can send the actual invoice/deposit through pm if someone would like to see it. 

 

I think trade flag on autotrader indicates the seller is a trader and not a private seller, I'm not sure they advertise trader to trader sales.

 

As per the website for a simple procedure in Scotland I think it references because it is a consumer issue it can be in my local area. 

 

I'm not sure if anything other than what he told me, or became apparent on the advisories on the most recent mot is wrong with the car, however the badly done paint job definitely needs sorting, at probably more than the car cost...that has been confirmed by a panel beater/sprayer with over 40 years in the trade.

 

Hope this helps

[dx100uk]

if yours says consumer too in red under the examination part (which you never signed)

and 

as that one does it uses the word contract, then its not a trader<>trader sale docket

it's a invoice regarding sums owed for the car your purchased.

 

so good to go under your claim you had 14 days to return it under dsr as you'd not seen it, extended by 1 cal year as he didn't use nor refer nor provide your rights in a durable medium..

 

glad thats sorted....

 

to sort if it raiseable under the scottish SPC claim system, simply ring you local sheriff's court clerks office and ask.

 

 

[Aton2244]

3 hours ago, Manxman in exile said:

What does "TRADEFLAG  Trade" signify in the advert? 

Is that meant to warn potential buyers that this is a trade sale only?  If so, does it have any effect?

 

Just to add on the OP's behalf,

I don't think she has been "hung up" on getting trading standards involved. 

She seems to have done so initially because she was advised to do so by some advice service in Scotland. 

 

But the OP has throughout this thread been arguing on her consumer rights position that she has an extended period to cancel her purchase because it's a distance sale and because she wasn't notified of her right to cancel in a "durable medium" before buying the car. 

 

Additionally, because she was not given any of that pre-contract information about cancellation and return costs, she has argued that the dealer is liable to pay the return costs.  Whether that is a good argument or not, and whether it is likely to be a practical way of getting her money back, I won't comment on, but that seems to me to have been her consistent approach throughout.  (It was somebody else who didn't seem to follow her argument about an extended cancellation period and didn't understand the references to a "durable medium" who brought up using TS to prosecute the dealer.)

 

Anyway - to move on - it seems to me that the OP has focussed on her right to cancel a distance sale for no reason, rather than to reject the car as faulty, because (and OP, please correct me if I'm wrong) she doesn't really think the car is faulty.

 

Now the OP may be completely mistaken and foolhardy in approaching this problem in the way she has (it's not clear to me whether she is or isn't) but if she is, I think it needs to be very clearly pointed out to her. 

 

Unfortunately, many posts seem to have progressed on the basis that she was rejecting the car (not cancelling the purchase) or that she should get TS to prosecute the dealer.  The OP just needs to be clearly told either "Yes - you're doing the right thing" or "No - you're doing the wrong thing - do this instead".

 

I think that's why the thread has droned on. 

 

(I agree that if the dealer doesn't settle out of court there will be arguments about whether it's an English or a Scottish case and I'm sure there will be problems enforcing any judgment whatever approach is taken).

 

 

 

 

Could you confirm what dx100uk  is saying, I can forward you a copy of the actual invoice/deposit slip for clarification to your inbox 

 

Many thanks 

[Manxman in exile]

I think dx100uk is saying that EITHER (1) the dealer has tried to pass it off as a "trade sale" which everybody is agreed that they can't do, and TS will be interested and hopefully can assist you in bringing a civil claim against him after they prosecute, OR (2) if it IS a consumer sale, then your best bet (if the car can't be rejected because it isn't really faulty?) is to try to cancel within the 12 months plus 14 days as you originally intended doing.

 

I think the reasons you originally tried to go for (2) were because you didn't really think the car was faulty (rather you changed your mind about buying it?), and because Advice Direct in Scotland and your local TS people suggested it as an avenue to explore.  I suspect the difficulty with it is that nobody here (or anywhere else!) has ever come across this aspect of distance selling cancellation rules in respect of used cars - usually purchasers just want to get a refund because the car is faulty or wasn't as described - not because they want to cancel the purchase.  (And I think that's why Hammy1962 thought this would be interesting).

 

I think that because what you are trying to do is both (1) novel and unusual and (2) between England and Scotland, everybody is a bit stumped about how to proceed.  (Well - I can only speak for myself in that respect - not other posters!).

 

Can you post up a redacted version of your actual receipt/invoice?  I think it's v naughty of the dealer to use paperwork headed "Trade Sale" but then have a section for consumers.  Also somewhere earlier you said he'd written "For spares only" on it, which certianly is not clear from his advert you posted earlier.

Edited September 27, 2020 by Manxman in exile

[Aton2244]

If i was to be claiming on any fault it would be that the car requires completely strip of the advertised ' vinyl wrap' which is actually a plasti dip spray that looks like it was done by children at nursery school, is peeling off in various areas and looks absolutely not how the pictures made it look.strip

 

It would then need completely resprayed in the original colour, or perhaps another one but since I don't intend on keeping the car that is irrelevent.  

 

When I first saw the invoice/deposit - I immediately queried exactly why the spares/renovation or restoration  (hard to tell with the level of handwriting ) was written on there, he said it was because of the clutch/strut issue mentioned in my very first post. 

 

I certainly was aware of those issues that he brought to my attention, and I asked for a reduction in the price as they weren't mentioned in the advert.

 

I simply at no point in any of the correspondence I had with him agree to it being sold as spares etc.

 

He in fact said it wasn't that bad, only did it occasionally and considering it had been driven from Scotland to Birmingham he was only bringing it to my attention to be as honest and transparent as possible. 

 

Invoice.pdf

[Aton2244]

The picture quality was fine until editing sorry!

[FTMDave]

Image converted to PDF.

[Manxman in exile]

Erm...

 

Can somebody tell me if I'm looking at this right?  I've just checked the car's MOT history and the MOT appears to have expired wef 02 July 2019 - nearly 14 months before the sale date on the invoice... ?  (Is the website not up to date because of Covid?)

 

Also... the last MOT before 03 July 2018 was 22 October 2013(?) when the recorded mileage was over 94,000?  (Advert mileage according to OP was 80,000)

 

https://www.check-mot.service.gov.uk/

 

Is that odd - or am I not looking at the website properly?  (The car isn't MOT exempt because of it's age or something, is it?)

 

EDIT:  OK... is it because the advert says the reg. no. is not being transferred but put on retention.  In which case why does the invoice have the same reg no (A16BYN) as the advert?  Or does the invoice say A16FYN?

 

I'm confused...

 

Too late to edit again.  A16FYN is a different car altogether - I must be reading the invoice wrong.

 

My other queries re MOT still stand - and the MOT website does seem to be up to date because our MOT was done in May and that is on there.

Edited September 29, 2020 by Manxman in exile

[Aton2244]

A16 BYN is the plates that the car was advertised with, and obviously the plate which I checked the mot history with, I also thought the same that the website maybe hadn't been updated with the most recent mot that the dealer had got done, I asked for the original plate number whilst doing the logging in to my bank account, to pay both the dealer and the shiply transporter.

 

Bearing in mind I had told the dealer around 6pm that I would get the deposit sorted out when I put my son to bed, that gave him every opportunity to send me any pre contract details etc. Just over an hour later (son still wasn't in bed) asked for the address of where the vehicle was to be picked up from as I couldn't accept the quote for the transporter without that information.

 

Less than an hour after that he whatsapped me asking if I still want to buy the car because he's getting enquiries from other interested parties and is telling them that he's sold the car to me (no deposit  paid as yet). I then replied a few min later having finally got my son to sleep. 

 

Anyway between me sorting out the details and where to pick the car up from, log into my banking to pay deposits etc he'd  messaged me the original plate no... which I didn't see until after I'd done all the aformentioned. 

 

I decided to check the history on that plate as like yourself I had been confused about the mileage, low and behold there was the most recent mot containing 5 advisories which were never mentioned to me.

 

Another thing I can't really understand is the expiry date of the mot before that either and I did query all of this with the dealer, only to be told that cars in Scotland are renowned for corrosion issues...and that if I had checked the mot history I would have seen them,

 

I explained I had checked the history on the plate in the advert as I had no knowledge of what the original plate numbers were and he told me that the most recent mot was under the plate in the advert. Most certainly the mot certificate he then sent me on whatsapp had the advertised plate on the certificate,  however, it wasn't showing up on the dvla page. 

 

By this stage I was irate with him for several reasons, for not notifying me of the advisories and telling me that he had checked the dvla and the most recent mot was showing up on the advertised plates, I then screenshot the page with the expiry and this car is not mot'd information, and 2 for telling me that cars in Scotland are renowned for corrosion issues! 

 

Had he simply said, the car is 18 years old you're going to expect to have some corrosion at some point, I'd have been a bit more tolerant at that stage. Upon checking the history on the original plates, it transpired it passed the last MOT previous to the most recent one on the same day the advertised plates ran out, I still haven't quite fathomed out what is going on regards to this.

 

However the previous mot showed no corrosion issues and as it hadn't failed on that basis, I would get the panel beater sprayer mentioned in an earlier post to have a look at it, and sort the issues out re that, also the main reason I had the car delivered to my dad's address as that's also the area where the panel beaters business is.  

[Aton2244]

Just had an email from TS

 

"

Good morning *****,

 

I did contact Birmingham about the trader and they do not get involved with civil cases, so I would suggest you to continue with Advice Direct Scotland’s advice.

 

We will be sending the trader a warning regarding the criminal side of the matter.

 

Regards

[dx100uk]

interesting...did they elaborate upon what they thought was criminal about his actions..might be useful

[Aton2244]

I have responded asking what the criminal side would be, whether it was no pre contract information given, or the spares etc being written on the invoice, or if indeed because it was on a 'trade sale' invoice... 

 

Legislation says if certain pre contract information  is not given prior to a contract being made then that is a criminal offence, so I would presume it could be that.