Hankins Car Sales/lawgistics - 2010 Vauxhall Zafira 7 seater - court claim issued - not fit for purpose.

[DiscoCow]

The lawyer for lawgistics stated in their MCOL rejection that they wanted to go to court to be given the opportunity to 'cross examine' me.  Not sure what he will try to pin on me. 

 

In my mind my argument is that the coolant system is broken and that caused a catastrophic engine breakdown. 

 

The coolant system does not form part of the mot so they cant say it was working due to having an mot.  There was no checklist done on handover. 

 

They haven't shown anything that proves that the coolant fault was not present at time of purchase.  

 

I suspect their counter argument will be that I didnt check the coolant system so will say its due to poor maintenance.   

 

Given the fact their is no guidance from manufacturer or from any recognised trade bodies like rac or aa on how often to check coolant I would push back that expecting me to check the coolant every time i drive is unreasonable and would only be the case if they knew it had an issue.  

 

[dx100uk]

12 hours ago, DiscoCow said:

The lawyer for lawgistics stated in their MCOL rejection that they wanted to go to court to be given the opportunity to 'cross examine' me.  Not sure what he will try to pin on me. 

mcol rejection?

 

12 hours ago, DiscoCow said:

they wanted to go to court to be given the opportunity to 'cross examine' me.

 

does not happen like that... trying to frighten you.

 

dx

 

[AndyOrch]

It's simply a Case Management Conference hearing to determine allocation of the claim and select expert evidence is necessary.

Quite normal on complex claims.

[Manxman in exile]

On 09/02/2023 at 11:42, DiscoCow said:

... They haven't shown anything that proves that the coolant fault was not present at time of purchase.  

 

I suspect their counter argument will be that I didnt check the coolant system so will say its due to poor maintenance.   

 

Given the fact their is no guidance from manufacturer or from any recognised trade bodies like rac or aa on how often to check coolant I would push back that expecting me to check the coolant every time i drive is unreasonable and would only be the case if they knew it had an issue.  

 

 

You might recall that I asked on your original thread how often you checked the coolant level.  You replied that the AA/RAC guidance was that it only needed to be checked twice a year, and that Vauxhall indicated that it didn't really need to be checked at all as it was a "closed system".  (See #8 - #11).  I also don't think you actually answered the question.  (You said something like "How often is 'regularly'?")

 

The reason I asked that was because my car's manufacturer recommends that it should be checked each time you fill up with fuel.  And just looking at general AA advice it suggests as follows:

 

"Most modern cars have a sealed cooling system so they shouldn’t need topping up. Unless, of course, they’ve sprung a leak.

Check your engine coolant every couple of weeks so you can spot any problems early. It could save you a lot of money and hassle."  [My emphasis in bold]

 

See How to check your engine coolant | The AA

 

Have you got any links to anything saying that you did not need to check the coolant level regularly?  If you have I think it strengthens your case a lot because it shows that the dealer's defence is wrong in blamining you for not checking it.

 

But if you should have checked it and didn't, it's a bit more difficult for you.  (Yes - if the car broke down in the first 6 months there is a presumption that it was faulty when you bought it, but that presumption is rebuttable.  If the car failure is consistent with you not checking the coolant level I think it becomes less clear cut for you and more a case of "he said, she said")

 

[DiscoCow]

@Manxman - yes I agree it will be a case of he said/she said.   If i say i checked the coolant and it was fine then that shows there was no issue at sale, if i say i didnt check it then they will say i was being negligent.  Ultimately I dont have much to lose at this point by seeing how the court case goes.  Its not as if they have made me a decent offer to stop proceedings that i would consider. 

 

RAC  says twice a year.   - https://www.rac.co.uk/drive/advice/car-maintenance/how-to-check-your-coolant/#:~:text=You need to check your,drops below the guide marks.

 

Halfords state to check at the start of summer - https://www.halfords.com/motoring/how-to-guides/prevent-overheating.html

 

 

Vauxhall manufacturer book doesnt state anything as far as i can see.  https://www.vauxhall.co.uk/content/dam/vauxhall/Home/PDFs/owners/owners-manuals/zafira/zafira-owners-manual-january-2010.pdf

 

On page 90 it states to stop the car if light comes on and check coolant level immediately. No light came on but that will be hearsay (unless i can use the AA breakdown report having no mention of it as proof that it wasnt on.  You'd expect a roadside mechanic to notice that kind of thing but dont know).  Since there was no light then i didnt check coolant

 

Page 101 has another light about coolant level and to check the levels if this light comes on. Again no light so no check. 

 

Page 153 has a section about Vehicle Care which would be more relevant. This states to 'Check Coolant Antifreeze'.   However this is under the section 'The following must be done if the vehicle is stored for several months'

Page 154 has similar about putting car back in to operation after being off the road for extended period of time

PAge 156 has a section on Vehicle Care and the Collant system. This states: If the cooling system is cold, the coolant level should be just above the KALT/COLD mark. Top up if the level is low. 9 Warning Allow the engine to cool before opening the cap. Carefully open the cap, relieving the pressure slowly. Top up with antifreeze. If no antifreeze is available, use clean tap water or distilled water. Install the cap tightly. Have the antifreeze concentration checked and have the cause of the coolant loss remedied by a workshop.    There is no mention of regular checks here. 

 

Page 194 also mentioned coolant but just about the concentration to be used. No mention of checking it

 

 

So i have driven the car in line with manufacturer guidelines.  I havent checked the coolant but the manufacturer doesnt state that this is a recommendation. RAC state twice a year.  I know that other sites state otherwise but I think this is enough for me to say that me not checking the coolant isn't overly negligent,  the manufacturer clearly doesnt expect this to be done. 

 

 

[DiscoCow]

2 hours ago, Andyorch said:

It's simply a Case Management Conference hearing to determine allocation of the claim and select expert evidence is necessary.

Quite normal on complex claims.

So you wouldnt expect this appointment to result in a final outcome? 

13 hours ago, dx100uk said:

mcol rejection?

 

 

dx

 

Sorry, got terms wrong.  It was in the bit where it asks if it can be decided without a hearing. They ticked No as they wanted to cross examine me

[AndyOrch]

Quote

So you wouldnt expect this appointment to result in a final outcome? 

 

No, its simply to iron out the details the judge requires to progress the claim.

[Manxman in exile]

@DiscoCow  -  you're right, I'm really surprised.

 

So RAC just advise you check "at least" twice a year, but don't suggest that you need to do so any more frequently than that, and Halfords only seem to suggest doing so at the start of the summer...

 

And the Vauxhall manual doesn't say anything at all about visually checking the coolant level, unless you first get a warning light or vehicle message telling you the level is low.  Presumably you're saying you didn't get a warning light or vehicle message alerting you to a low coolant level?

 

I'm amazed that the Vauxhall manual seems to rely solely on the warning light and vehicle message systems working properly and doesn't suggest a regular visual check as a backup in case the electrical systems aren't working properly.  By way of contrast at p155 they do advise you to manually check the engine oil regularly to prevent engine damage.  Why don't they advise the same regarding coolant?

 

So yeah - on the face of it, it looks like the manufacturer's manual doesn't advise you to check the coolant level unless you've got a warning light or vehicle message.

 

So you've driven it according to the manufacturer's instructions...

[DiscoCow]

Yeah thats all i could see in the book. I did a ctrl+f for 'coolant' and only got the results i already referenced and none of them mention regularly checking.  

 

I didn't get any warning lights or messages. I would assume that those would have shown in the history when the AA person plugged in to the car and it would have been obvious as the breakdown reason.  The only evidence i have that these lights didnt come is the lack of a diagnosis from AA.  Not ideal but better than just my word i guess. 

 

My fairly basic understanding of the CRA would suggest that the assumption lies in the coolant system being faulty at point of sale unless they can prove otherwise.  They would also have to show that the warning light system was working at point of sale as if the coolant system broke but no lights came on then that would be a fault as well. 

 

Who knows how it will end up. I'm more annoyed by how they have treated the process than anything else.   Basically ignoring my for 6 weeks then asking for another 4 weeks before claiming a mechanics report that i've not seen.  

 

[DiscoCow]

On 10/02/2023 at 11:33, Andyorch said:

It's simply a Case Management Conference hearing to determine allocation of the claim and select expert evidence is necessary.

Quite normal on complex claims.

Do you (or anyone else) know if i need to/should prepare my case properly for this meeting or is it not going to go in to this detail? 

 

Edited February 21, 2023 by DiscoCow
change of word

[AndyOrch]

It won't go into that much detail it's not a trial hearing, but you can prepare notes of anything that requires clarification.

[DiscoCow]

Just finished in the court hearing.  Seller came directly without lawyer for some reason. Really old and could barely hear what was going on.  Frustrating. 

He is trying to rely on Mot being on the car when it was sold as proof of it being fit for purpose.  Judge shot that down and said it is a snapshot in time and doesn't mean anything. 

 

Said we will need to get an independent report confirming the condition of the vehicle.  Looked right at the defendant and said that unless that report specifically says that the bit that is broken now was definitely working when the car was sold then he will not win this case. 

 

So now to try arrange AA or RAC to inspect the vehicle and its 50/50 on costs but I can reclaim if I win.  Since he hasn't replied to emails for months I am not sure how it will work but hey how, here we go

 

Got until 8th March to get inspection booked and another month for the report to come back.  All docs to be lodged with court by 27th April. 

 

Going to be a saga! But I won't give up

[DiscoCow]

Have had this report through today.   

 

Court date is in June, I need to pay court fees in May, I need to submit my final evidence at end of the month.  

 

It says that I have driven the car when it was overheated causing further damage but also says that the vehicle is not fitted with a temperature warning gauge or temperature warning light. So how would i know if the car was overheating?  I refer back to the lack of any guidance in the manufacture book about checking coolant. 

 

My first thought is that it still doesnt state that the issue that caused the breakdown wasnt present at time of sale which is what the law assumes to be the case....but i am not sure

 

Any thoughts from anyone?

Hankins Report 290323.pdf

[Manxman in exile]

I presume both you and the defendant jointly commissioned that report?  It's just that it identifies only the defendant as the client.

 

Who gave the "Instructions Received?  I might have expected one of them to be something like "Is there any evidence that the underlying cause of failure (loss of coolant) was or was not present when the vehicle was sold?" because that is what is at the root of the dispute - if I've remembered correctly...

[DiscoCow]

The instruction from the judge at the last hearing was for a report to be arranged that would state what went wrong with the car and if this fault was present at the time of sale. 

 

They said it was to be an AA or RAC report and the cost was to be split between both parties.

 

  As the garage have had the car for the last 6 months and they are 50 miles from me it made more sense in my head for them to arrange the visit and send me the report once done. 

 

 

[Manxman in exile]

OK.

 

1.  On the instructions given to them (whoever instructed them) they don't appear to have been asked explicitly to answer the actual question you say the court wanted answering:

 

16 hours ago, DiscoCow said:

The instruction from the judge at the last hearing was for a report to be arranged that would state what went wrong with the car and if this fault was present at the time of sale...

 

 

2.  However, in conclusion (C3) they do say that "there is a possibility that the selling agent may have had some responsibility" for the engine failure, but they also qualify that by saying that you have made the engine worse by driving it while the coolant level was low.

 

3.  So the report is fairly inconclusive(?) really in respect of the point you would have liked it to have shown - ie was the fault present when you bought it?

 

4.  You could argue that as the failure occurred within 6 months of purchase, then under s19(14) of the Consumer Rights Act 2015 (legislation.gov.uk) the fault must be presumed to have been present at sale - unless either (a) the seller can establish that the fault wasn't present at sale or (b) it would be "... incompatible with the nature of the goods or with how they fail to conform to the contract".  See s19(15).

 

The report doesn't actually establish that the fault wasn't present when you bought it, but it doesn't establish that it was present either.  It might be slightly in your favour, but I think a court could go either way.  [Edit:  Some people will go so far as to say that if the seller cannot prove that the fault wasn't present when you bought it, then the court must presume that it was present.  See earlier post #5  by @dx100uk]

 

Whether the presumption under s19(14) that any fault within 6 months must have been present at purchase would be "... incompatible with the nature of the goods or with how they fail to conform to the contract", I simply don't know.

 

5.  Regarding whether your continuing to drive the car exacerbated the problem - even if the underlying fault was present when you bought it - you know I've raised that issue with you before.  However, you've correctly pointed out that the vehicle's manual gives no warning about regularly checking coolant levels, unless the warning light comes on, and you say the warning light never came on - so tell the court it never came on.  If the AA breakdown report backs that up, great.  (Have you any other evidence that might suggest the warning light wasn't working in the first place?  Does the engineer's report cover it?  I can't remember).

 

If you just followed the instructions given in the manufacturer's manual you would have had no reason to suspect there was a coolant problem and no reason to stop driving, however... a court might still consider that a reasonable driver would have checked the coolant level "regularly" and that you were at fault if you didn't do so.

 

I'm not certain you have a better chance than 50/50, but see what other posters think.  If you have some evidence to explain why the coolant level warning light never came on (eg it's broken) I think that would help you.  But if you didn't visually check the coolant level "regularly" I think that might count against you.

 

===================================================================

 

Just to clarify - normally the seller would be entitled to one opportunity either to repair or to replace the vehicle.  Am I correct in understanding that you have requested a repair but they have refused, hence you suing them?

 

Be aware that when a consumer exercises their final right to reject within 6 months of purchase (see point 4 above), they are usually entitled to a full refund.  But in the case of motor vehicles the seller can make a deduction from that refund to account for the use you've had of the vehicle.  While you could still use it.

 

Good luck.

 

As I said - see what posters think.

 

 

 

 

 

 

 

 

Edited April 20, 2023 by Manxman in exile

[Manxman in exile]

Just to add -  a bit of a coincidence for a vehicle to cover 120,000 miles and it's the last 3700 miles that does all the damage, it being in perfect condition before that last 3700...

[DiscoCow]

That's really kind of you to respond in such a detailed way. 

I need to type up and send off all my evidence in next day or so and this has been very helpful

 

Do you (or anyone else) know, when submitting my evidence ahead of the trial, am I also submitting my arguments and the story of the claim? Or is that done on the day? 

 

Not sure if I should be sending in just the documents or sending my full argument in writing... If that makes sense 

[Manxman in exile]

I understand your question but I'm afraid I'm not familiar with the ins and outs of court procedure.

 

I think the most knowledgeable poster on procedure is @Andyorch

 

See if he picks this up

[Manxman in exile]

1 hour ago, DiscoCow said:

Do you (or anyone else) know, when submitting my evidence ahead of the trial, am I also submitting my arguments and the story of the claim? Or is that done on the day? 

 

Not sure if I should be sending in just the documents or sending my full argument in writing... If that makes sense 

 

Are you enabled to send messages to individual posters?  If you are you could try asking @honeybee13 if they could get Andy or somebody who understands the Civil Procedure Rules better than me to post some advice for you here.

 

(I'd do it myself but I don't have that facility as I think the forum considers me a bit subversive... )

[honeybee13]

If you've tagged @Andyorch then when time permits he will be along to answer.

 

HB

[dx100uk]

You know the fee date, but what date have you to exchange witness statements by, as that is your next task.

 

Dx

[AndyOrch]

1 hour ago, DiscoCow said:

 

 

Do you (or anyone else) know, when submitting my evidence ahead of the trial, am I also submitting my arguments and the story of the claim? Or is that done on the day? 

 

Not sure if I should be sending in just the documents or sending my full argument in writing... If that makes sense 

Yes this is the final submission in support of your claim any doc you refer to within the statement must be marked as exhibit and attached with an index.

 

Andy

[DiscoCow]

Thanks Andy, 

 

So at this point final evidence and witness statements are due by 27th April.  

So I just send a pile of documents marked as exhibit a, b, c etc and then an index of them all?

 

Or do I send a letter like 'I am bringing a claim against the defendant under CRA due to xyz...' and then reference my documents thought that statement? 

[dx100uk]

you compile a witness statements with numbered exhibits (documents you intend to rely upon.

 

type in witness statement in our search.

 

for want of ref the sub forum you are in has 100's of them follow the same layout.

paginated, paragraphed etc.

dx