taking car trader to small claims court

[pringles1981]

just a thought, can I sue the trader for both breach of contract (i.e. faulty goods) and conversion? Or do I have to choose only one, and then stick to that?

IMO its a bit of both, he sold us a faulty car due to the issues we had, took the mickey (attempting to) repair, and now has the car in a worse condition that it was before he had it off us, plus wont tell us where it is or show us photos.  

I've been re-reading and reflecting on your comments from the beginning and considering the alternative, i.e. including the bit about giving us access to the car within 14 days etc... I will be speaking to my sisters later tonight too so I will also see what their thoughts are too.  

Ultimately, I want to make sure I have the best chance of nailing this guy, so this time, we need to think it out properly. 

 

[pringles1981]

There isn't a written message as such where he has refused access to the vehicle, however when I have asked for where the car is being kept a number of times when speaking to him on the phone, he said its "at a garage around the corner from his". 

 

When I've asked to speak to the mechanic working on the car, then his response is that "he doesn't want to get involved, so you need to go through me". 

 

 

[pringles1981]

But he hasn't once said that he wants money from us, or indeed that we need to pay for the repairs carried out. The only time he has made any reference to this is in one of our final conversations (end of March 2021), he said that "I was doing this as a favour for your dad".

 

And when he spoke to my brother in law around about the same time, he said that he "had an agreement with your father in law (my dad) that he would contribute towards the cost of repairs if it was getting to a certain point regarding costs". 

 

But this so called conversation between the trader and my dad isn't mentioned in any of the text exchanges between them. And my dad never once mentioned that this was the case to us either - he always said that the trader was going to repair the car under the 12 month warranty which came with the car, which incidentally there is no paper trail for either, only mentioned verbally in the presence of my brother in law. 

 

And he has refused to disclose where the vehicle is located in the past - i have messages that I have sent to him where he has ignored this request, and when I have asked him over the phone, he has refused to give me the exact location, only that the car is "around the corner". 

 

And I think the conversion avenue is something we could always revisit at a later stage as you have suggested. 

 

I don't understand your comment about me being French and how that is relevant. And for all I know, he could be a thug, or use the services of . Could be completely coincidental but my husbands car was vandalised a few weeks ago, on 2 consecutive weeks, whereby the vandal damaged his side mirrors, knocking them off the car... 

 

And other than helping other potential victims which I do really want to do, what else would be the benefit of me naming the trader? Are you able to carry out further searches etc on him? 

[pringles1981]

I'm not holding back from sending it at all. I think the letter is pretty much done and ready to go, but wanted my sister to read it this evening to get her thoughts so I will post it on here later tonight.

 

I'm also looking into whether the legal expenses cover with my / my parents home insurance will assist with legal representation if and when it gets to court

 

 

[pringles1981]

I've made some slight tweaks to the letter, would appreciate your thoughts....  also I'm not sure to keep the bits in bold - what do you think?

/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-/-

I am the executor of my father’s will and as such I have authority to bring legal proceedings against you on behalf of his estate.

On 2 September 2019 my father bought a Jaguar XF  3.0d V6 vehicle, registration number XXXX XXX, from you.

You know all the basic facts but for the record I'm setting them out here for your information and for the benefit of the court.

 

·        My father purchased the car from you in September 2019, however the car was not collected until October 2019.

·      In less than two weeks of having the car, it started to demonstrate some serious defects and as a result the car was returned to you to repair the electrical faults.

·      The car was returned to my father in late January 2020, with the repair still outstanding, despite the fact that you had the car ostensibly to carry out precisely this repair.

·     My father made various attempts to contact you and to discuss the matter with you. In March 2020, a full six months after the purchase of the vehicle, you collected the vehicle ostensibly once again to carry out the repair of the electrical fault.

·       The car was eventually returned to my father six months later in August 2020. It seemed the original electrical fault had been repaired, however upon return of the vehicle, a further fault then presented itself whilst under your possession, in the form of a loud ticking noise from the engine.

·        You commented that you had topped the engine with oil as it had been running low, and your only suggestion was to take the car on a long drive.

·       My father followed your instructions, and this did not resolve the problem. Still in August 2020, the car was returned to you for further inspection and repair.

·         Since August 2020 you have been in possession of the car and apparently the repairs are still outstanding. There have been extensive exchanges between yourself and my father by text message and phone calls and you have informed my father that the repairs were still outstanding and in fact the car is now in an undriveable state.

·         As you are aware, my father died in January 2021 and myself and other members of my family have attempted to contact you to return the vehicle. There has been extensive exchanges between you and I, by text messages and phone calls, regarding the attempted and outstanding repairs of the car.

·         We have asked you repeatedly to advise us of the location of the car together with photographs so that we can make our own assessment and possibly carry out our own inspection and you have not provided any of this information.

·         You have given us various excuses such as, the car is awaiting parts to be fitted, the car needs new parts (turbo charger, crankshaft), the parts are being sent for re-conditioning, to most recently the car needing a new engine, but again we have not been permitted to visit the vehicle to carry out any inspection or to assess the situation for ourselves.

·         I have previously asked for access to the vehicle, and you have refused this, so I have been unable to understand the condition of the vehicle as it is now. In addition, I have been prevented from understanding what work may have been carried out so far and have also been prevented from obtaining my own comparative estimates for the work which you believe needs doing.

·         Not only have you withheld access to the vehicle, you have apparently moved it to new premises and refuse to divulge its whereabouts

·         I have made strenuous attempts to contact you and hold a dialogue with you and you have failed to provide me with the information requested.

Since the beginning of April 2021, I started writing to you formally, sending you three letters and have received no reply. This situation cannot go on any longer. You sold a vehicle to my father which has been scarcely driven since it has been purchased and which has now been in your possession for 20 months (to date).

The car is not of satisfactory quality and my father has not had the use of the car for most of the period of ownership and has been deprived of substantially the whole benefit of the contract.

I take this to be a fundamental breach of contract and as such I consider the contract has been terminated by you and so I require you to refund me the purchase price of the vehicle.

If I do not receive payment of £10,995 from you within 14 days then I shall begin a County Court action and without any further notice.

 

Yours sincerely

 

[pringles1981]

Hi, 

 

Today is Day 15 - no word from the trader since my letter of claim was sent and received. The below is what I will be submitting for the particulars of claim -  does this read okay? Also,  do I need to reference that I am acting on behalf of my late father? 

 

The claimant bought a Jaguar vehicle registration number XXXX XXX from the defendant for £10995 on 4th September 2019. Very shortly Soon afterwards, the vehicle developed serious defects and despite various defendant's s attempts at repairs, the vehicle it has continued to exhibit problems. The vehicle is now in the possession of the defendant and has been with him on and off for 20 months during the entire 21 months of the claimant's ownership. The defendant is fully aware of the nature of the defects and has been fully appraised. The defendant has supplied a vehicle which is manifestly not of satisfactory quality and the claimant has been fundamentally deprived of substantially for the whole benefit of the contract. Prior to issuing proceedings, the claimant sent a Letter of Claim to the defendant demanding payment. In the circumstances, the claimant seeks reimbursement of £10000.

 

Thanks 

[pringles1981]

okay I will add this at the beginning... is there anything else that you think needs amending? 

[pringles1981]

thank you for this - and yes I will look into this before I submit

 

Also, you say you have made some edits however I cannot see where - is there an attachment missing, or am I looking in the wrong place?

[pringles1981]

Ignore the above - I can see the edits in the previous posts - thank you

[pringles1981]

I have literally just had the post come through the letter box and received a letter from Trading Standards & Licensing Dept from my local council requesting relevant documents (correspondence etc), so that they can contact the trader to resolve the complaint....

 

Should I follow this process first, and see if it can be resolved and then come back to the claim etc? It does stipulate that "we cannot make a trader refund your money/exchange your goods or repair faults" however seeing an official letter may spur the trader into some sort of action?

 

Would be interested to hear your thoughts...

 

Also, in reference to using / defining myself, I was thinking of including the following at the beginning of the particulars of claim. 

 

'MY NAME' is acting as the personal representative on behalf of the Late 'MY LATE FATHERS NAME' (claimant). Hereafter, 'MY LATE FATHER'S NAME' will be referred to as the claimant. 

 

 

 

2021-07-05 15-15 2.pdf

[pringles1981]

Thanks for the advice and noted re documents - I was working from my phone and although I have a scanning app , it didn’t have the facility to black out my personal details hence the edited photos. 
And I have a scanner but thanks for the suggestion

[pringles1981]

Hi 

we have a response from the trader to my local Trading Standards officer. 

"The trader has contacted me. 

He is alleging consumer misuse regarding the usage of the car, i.e. the car had been run low on oil. I have explained that this would need to be proven and the burden of proof may depend on the trader or the consumer depending on when the fault first occurred.

Also the trader indicated that a courtesy car was provided to your father at the time but that car was not been returned Obviously, at Trading Standards we do not advise on the facts as only a judge in small claims can decide on the facts of the case. If a person alleges something then it needs to be proven.

The tenor of the contract has been that they are not liable for the alleged fault as it was consumer misuse and also that they will be pursuing the non return of a courtesy car. 

The matter seems to be at a standstill and it is up to you to decide if you wish to pursue the matter further in court. Please refer to the initial letter I sent to you regarding our remit on civil matters at Sandwell Trading Standards. 

In the event you do go to court you can mention to the judge you did try to resolve the issues through a third party, namely ourselves, to avoid going to court but the matter was not resolved. The judge would look favourably in this information. "

My response to the above is: 

1. The first we knew of the car being low on oil was when the trader returned the car back to my father in August 2020, after having the car from Nov 2019 - end of Jan 2020 (over 3 months) and from March 2020 - August 2020 (6 months). When the trader returned the car in August he casually mentioned that he had topped the car with oil as it had been running low. How can it be misuse when my father didn't even have the car for 6 months prior to the alleged fault?

The car was returned back to the trader in August 2020, within a week of it being returned, due to engine noises that were noticeable, and that were not there before. 

2. The courtesy car was provided to my father whilst his was allegedly being repaired. After my father's death, the trader mentioned the return of courtesy car once to my brother in law who he was in contact with, and it was agreed that he could pick his courtesy car up when he returned my late fathers car. At that point we believed the car was being repaired and would be returned.

In my communication with the trader, not once has he requested return of the car.  The return of the courtesy car has never been an issue and I am happy to arrange return of the courtesy car, although I am hesitant to meet the trader personally. In addition, the car has no car tax (expired in March 2021) therefore I am not willing to drive an untaxed car.

Should I contact the trader to arrange for him to collect it from my fathers house?  And would it be wise to take photos of the condition of the car (inside and outside, and mileage) in case he tried to clutch at straws and make further false allegations? 

3. In regards to the trader's claim as consumer misuse, if this was the case then why was my father not made aware at the time, and why did the trader take the car back to "repair it" and where is it now? Also, why has the trader continued to take the car apart to the point where it is now is an undriveable state than when it was when taken? 

I am waiting for the case officer to write me back to the response, however I just wanted to get your thoughts on the above. 

Thank you 

The trading standards officer didn’t come back to me yesterday so I’m going to call her on Monday morning and just clarify that there is no further action she will be taking so I can proceed to submit the MoneyClaim form. 

However before I do this, I just wanted your guidance on a few things please. 

1.  Should I contact the trader to return his courtesy car as he has mentioned this to the Trading Standards officer?  I am not willing to drive an untaxed car, nor do I want to particularly drive to him even if he arranges the car tax, but do I contact him to arrange a suitable day / time for him to collect it from my mums address. ? 

2.  Should I register my fathers car in my name? The DVLA were made aware that my father had passed but at the time, we were under the impression the car was being repaired and would eventually be returned back to us so that we could decide what we wanted to do with it (keep it vs sell it). The situation has since changed and I’m just wondering whether I should register myself as the keeper 

3.  My father also had private registration plates on the which we want to keep. I know I need to fill in the relevant paperwork to retain the plates, however should I request the physical plates back from the trader? In hindsight I maybe should have included this in the letters that I sent to him, but is this something I can request via the MoneyClaim? In addition, when the keys for the car were given to the trader, they had a key ring of my son of when he was a baby. It might sound petty but I really don’t like the thought of the trader having this, so am I able to request this via the courts also? 

4.  When I fill in the online MoneyClaim form, should I put my late fathers names as the claimant , i.e Mrs MY NAME as the personal representative of Mr FATHERS NAME (deceased)’.

5.  I also just wanted to have a final sense check of the wording of the particulars of claim as below. 

The late Mr XXX, claimant, bought a Jaguar vehicle registration number XXXX XXX from the defendant for £10995 on 4th September 2019. Soon afterwards, the vehicle developed serious defects and despite defendant's attempts at repairs, it has continued to exhibit problems. The vehicle is in the possession of the defendant and has been with him for 21 months during the entire 22 months of the claimant's ownership. The defendant is fully aware of the nature of the defects and has been fully appraised. The defendant has supplied a vehicle which is not of satisfactory quality and the claimant has been fundamentally deprived of substantially for the whole benefit of the contract. Prior to issuing proceedings, the personal representative of the Late Mr XXX, claimant, sent a Letter of Claim to the defendant demanding payment. In the circumstances, the claimant seeks reimbursement of £10000

The one thing I am unsure of in the above  wording is the part where it says “….and has been with him for 21 months during the entire 22 months of the claimant's ownership”

Is the car still classed as the “claimant’s ownership” even though my father passed during this period and I haven’t registered the car under my name? Do I (as the personal representative/ executor) technically own the car? 

I apologise for all the questions but I would really like to get this right to avoid any unnecessary delays / costs etc. 

And I appreciate all your help with this

thank you 

[pringles1981]

I can’t remember if I have mentioned it before or not without looking through the thread. 

it was given to my dad while his was being “repaired”. And since his passing it’s been parked on the drive, not been used. 
The trader mentioned one about picking it up and I said it would be easier to pick it up when he dropped ours (my dads) off, and that was the one and only time it was mentioned.
 

[pringles1981]

Please can you explain how I have not been forthcoming? Because I wouldn’t disclose the name of the trader? 

And I didn’t say the courtesy car was irrelevant but at the time I was in contact with the trader (via phone) it was agreed that he would collect it when ours was returned.

I am happy for him to collect it at a convenient time but that still doesn’t shy away from the fact that he still has my dads car and it still isn’t repaired, despite him having it since last August. 

if you don’t wish to help me any further then that’s fine - I have been completely honest and open and apologise if I hadn’t made it clear previously in regards to the courtesy car. 

And I value and appreciate the advice that you give me