North West Automobiles Blackburn Ltd - Deposit issues - couldnt get ins so cancelled before we even saw the car - dealership are saying deposit is non refundable.

[dekd123]

Hi All,

I wonder with a little more knowledge than me may kindly have a read of my position and offer any thoughts or guidance.

My youngest son (20) was a little too keen for his first used car purchase and set out to try to secure a car without my help.

In short, a garage in the advertising on Autotrader website listed a used car that my son liked the look of so he placed a call to the garage to ask some questions.

This resulted in my son paying a 'deposit' of £500 shortly after his enquiry phone call. The payment was made via mobile banking - bank transfer. I was not privy to the call but when my son called to excitedly tell me he had bought a car I was a little uneasy from offset as when I asked what kind of receipt or paperwork he had received, he said nothing. Payment made following a telephone call on the 13th of July.

After I encouraged him to chase for a receipt, toward close of play on the 13th he received an invoice that detailed a car price of £3500, £500 deposit but also with some notes around additional work to be done - MOT, Service, Cambelt and Waterpump change. How relevant this is may be a factor as I explain further. A note on this is the advert at the time detailed this as all being done, it was a selling point and I can evidence the MOT had just been done not post deposit via the .gov website.

My son was committed to buy and I actually drove him up the the dealer 2 day's later on the 15th July. As we set-off I checked that my son had made necessary changes with his insurance, where I saw the penny just dropped look on his face with his reply being no.

He promptly set-out to arrange cover and literally it took so long, I pulled over just a few hundred yards away from the dealer where my son received the news that the insurance would simply not cover him at all. We sat and tried to work out options to help secure the car, another policy, waiting for 8 weeks for his current policy lapsed to try and retain the no claims for the year but we could not make it work.

I may have made a mistake here (hope not) but I drove him to the dealer and physically entered the office to support my son in explaining. We did not and have not any any time actually seen the car with our own eyes and we did not leave the office other than leaving the dealers.

My son explained and I supported him and at that point the salesman who had been speaking to my son was polite, friendly and very understanding stating that he would arrange a refund. I know, I know but It didn't feel right to try to camp out and wrestle an immediate refund there and then.

On the drive home, my son followed with an email to provide his bank details for the refund and to explain again. This was followed up with another email and phone call the 21st July.

Today another email was sent but to which we had our first ever response and it read verbatim " Hi, Thank you for your email. The deposit you placed on the vehicle was nonrefundable deposit as the works have now been completed. We will keep your deposit on our file for future reference if another vehicle comes up that would take your interest"

I can share this email and the invoice and any other information that may help provide more information.

As I write this ask for input or opinions,

I have just put the ended a call with the CAB who took the view that as we physically set foot into the dealers, even though it was to cancel we have effectively nulled out any 14 day cooling off protection, even though we have still not even laid eyes on the car .

Hard to swallow but it had crossed my mind as mentioned above about our possible mistake of entering their office...

Thanks kindly in advance for taking the time to read this and again further thanks for any input, suggestions or guidance.

Derek

[dx100uk]

as per usual, CAB are useless.

1st name names please.

2nd find proof on the advert that it states deposits is non returnable! 

setting foot on the premises does not invalidate anything.

dx

 

[dekd123]

Thanks Dx !!

The dealer is a North West Automobiles Blackburn Ltd.

Actual car ad is still live here - I can't see any suggestion of deposit concerns on the ad.

Auto Trader UK - New and Used Cars For Sale

WWW.AUTOTRADER.CO.UK

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Find your next car with Auto Trader UK, the official #1 site to buy and sell new and used cars. Over 400,000 cars online. Simple, easy, quick!

The above is the ad that my son found. Since I suspected I was going to end up in the trenches on this one, they do actually have a statement on their own domain website which does state deposits are non refundable - 3rd paragraph down but this has only come to light after I suspected trouble...

Terms and Conditions in Blackburn, Lancashire | North West Autos Blackburn

WWW.NORTHWESTAUTOMOBILESLTD.CO.UK

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Terms and Conditions in Blackburn, Lancashire | North West Autos Blackburn

Thanks for taking the time to reply, much appreciated!

Derek

 

[dx100uk]

the issue here is he paid by bank transfer - never a good idea as it removes all your consumer protections.

as for the website - if he was not advised at the time of paying the deposit it was non returnable nor sent a copy of the T&C's nor referred to the website i suspect they are on dodgy ground now the contract has been legally cancelled within 14 days.

it was a remote 'online' sale so they cant dispute 14 right does not exist .

@BankFodder .. your thoughts?

 

[BankFodder]

I agree with my site team colleague above – @dx100uk that this is a distance sale. You can't cancel the cooling off period by going along to collect the item. That's ridiculous.

I also agree my site team colleague that one should not buy a vehicle without seeing it – and also paying for it by casual bank transfer is a – Big Fail!

Follow the link used car guide to see what we have to say about buying a used car and what happens when you pay by bank transfer or you pay by cash.

This is a distance sale.

Write them a letter immediately – confirming the cancellation of the purchase which you informed them about on XXX date. Make it clear to them that this was a distance sale and contrary to what they have tried to say to you, you cannot nullify a distant sale cooling off period by visiting the premises after the contract is made.

Send them this letter straightaway. Make sure that you have a record of it being sent. Send it by email as well if you want.

Let us know if there has been any reply in the next four or five days. Don't set any deadlines though.

Start reading this forum about the steps involved taking a small claim in the County Court.
Start drafting a letter of claim.

Be prepared to issue a court action in the small claims court.

Give your son a slap – and make sure that he is thoroughly involved in this claims process so that he acquire transferable skills, develops a bit of maturity and also becomes confident about suing anybody else who gets in his way.

[dekd123]

Thanks ever so much to you both for your contributions and guidance.

Yes to the slap  Something from this made me chuckle thankfully. Letter will be posted before the PO shuts and I will keep you posted. Thank you !

In addition to sending a letter via RM recorded, I asked my son to send an email with the letter attached. He has just received a response via email.

Doesn't say a great deal but the wording is pasted below.

Again, I'll keep any updates coming.

---------- Forwarded message ---------
From: Aftersales at NWA <[email protected]>
Date: Wed, 26 Jul 2023, 16:04
Subject: RE: Tyler Derby - volvo
To: >

 

Hi T,

Thank you for your email, I understand this and that you are awaiting the process to take place however until the investigation is carried out then the process cannot start and without all of the information I would not want to make any wrong decisions in terms of the deposit. Please allow me this time that I have asked for an I will try my best to do this in a speedy manor.

Best Regards,

Aftersales Dept,

North West Automobiles Limited

24-26 Canterbury Street

Blackburn

Lancashire.

BB2 2HP

T:    01254 658760

W: www.nwaltd.co.uk

E: [email protected]

[BankFodder]

Stick exactly to what was suggested.

I suggest that you prepare a letter of claim and have it ready to send on Monday.

 

[dekd123]

On 26/07/2023 at 18:47, BankFodder said:

Stick exactly to what was suggested.

I suggest that you prepare a letter of claim and have it ready to send on Monday.

 

Morning. I'm setting aside some time today to start on the letter as suggested and after reading through a lot of the suggested reading. In terms of a template to work from and I'm not aiming to be spon fed, is this from the which website suitable to use as a model letter?  I'm mindful of getting things right from the outset - are the timescales in the template correct, does it cover the basics for me to adapt?

Letter before making a small claims court claim - Which?

WWW.WHICH.CO.UK

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Taking a company to the small claims court to get your money back? If so, you must send them a letter before you claim - this template will help you.

I have looked for a template on the forum but couldn't seem to locate anything that I thought would be a good fit. Do I need to attach another form for the business to respond to? I have noticed some information that references a response document. 

Thanks in advance again.

[BankFodder]

You don't need templates. There is loads of information here about letters of claim and lots of examples .

We do everything here completely free of charge. If you are going to another source of help such as Which? then you should stick with them rather than try to ride two horses at the same time

The people who put the stuff up at the Which magazine are paid. We aren't.

Taking advice from two different sources will result in inconsistency and confusion.

Stick with the Which? magazine.  

Come back here if you decide that they are not for you and you want to take your lead from us.

 

 

[dekd123]

Happy here  Apologies, my intention was not to throw away the knowledge and help here or to skew things, far from it. I've run several keyword searches for examples on the forum. I'll try again and do something with my search phrases...

[dx100uk]

use our enhanced google searchbox not the search in the red banner.

letter of claim car

[dekd123]

Letter of Claim attached. I'd be most grateful if someone could kindly review and comment. 

Thanks again. (Just spotted the tips on best use of search after uploading.) I'll check now and revise if I can see anything to bolster my own effort.

 

Derek

CAG Draft Letter Of Claim.pdf

Edited July 30, 2023 by dekd123
missed a helpful post ahead of my own post

[dekd123]

Draft pasted below for ease of review and suggested amendments. DX thanks for the tips on the search function, that method did in fact throw up some useful resources.

 

Northwest Automobiles Blackburn Ltd

4-26 Canterbury Street
Blackburn
Lancashire
BB2 2HP

31 July 2023

Pre action protocol letter of claim.

Dear Braeden / Aftersales,

Reference: Outstanding refund of £500 deposit in relation to Volvo C30, DE11 PLN.

On the 13^th of July 2023 I made a BACS Transfer of £500 as a deposit for a used vehicle that was advertised on the Autotrader.co.uk website, vehicle details: Volvo C30, registration number DE11 PLN. This deposit was made remotely via my mobile banking app after being advised by ‘Ahmed’ your salesperson that bank transfer was the only acceptable method of making a deposit.

Two days later, 15^th July 2023 I informed you of my right to cancel under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, whereby I had a 14 day’s cooling off period.  

I followed up my initial right to cancel to you verbally and via email several times, not limited to 15^th, 21^st and 26^th July 2023, the most recent being the 26^th via royal mail recorded delivery and via email.

Under the above Regulations, this unequivocally constitutes distance selling and I put it to you that you have failed to satisfy the requirements of the said regulations in relation to distance/off premises sales. I remind you that at no point had I physically viewed the car in person, and I note that one of your email responses dismissed my right to cancel within 14 days’ as you state work had been done to the vehicle.

In line with the pre action protocol, I hereby give you 14 days to return my bank transfer of £500.

Please note that I am not prepared to accept any other arrangements or compromise and that failure to comply will result in a court claim being issued against you on day 15 from the date of this letter of Claim and without further notice.

I am confident in obtaining a judgement against you and this will include at least an order for costs and suitable expenses because of you withholding my £500 deposit that is preventing me unnecessarily from sourcing another vehicle.

Yours faithfully,

XXX

[dekd123]

Morning, No further contact since an email to advise they were investigation. Letter of claim above was sent on the 31st July. MCOL account open and I hope to have a sensible, short particulars of claim below ahead of sending on the 14th.

I'd be very grateful to hear of any comments or suggestions.

Thanks in advance.

--------------------------------------------------------------------------------------------------

The claimant agreed to remotely purchase a used car specifically a Volvo C30, registration plate DE11 PLN from the defendant on the 13^th July, 2023. The defendant specifically requested a bank transfer which was made via mobile banking

The claimant placed a deposit on the car of £500.

The agreement was entered into over the telephone and therefore is subject to the distance selling regulations in place at that time under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

The claimant withdrew from the contract 2 days later on the 15^th July.

The defendant has refused to accept the cancellation of the contract and refuses to return the deposit of £500.

The claimant seeks the refund of £500 plus interest pursuant to section 69 County Courts act 1984 plus court costs.

[BankFodder]

1 hour ago, dekd123 said:

 

The claimant agreed to remotely purchase a purchased a used car specifically a Volvo C30, registration plate DE11 PLN from the defendant on the 13^th July, 2023.
The agreement was entered into over the telephone and therefore is subject to the distance selling regulations in place at that time under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

The defendant specifically requested a deposit of £500 by bank transfer and which was made via mobile banking

The claimant withdrew from the contract 2 days later on the 15^th July and before delivery of the vehicle had taken place.

The defendant has refused to accept the cancellation of the contract and refuses to return the deposit of £500.

The claimant seeks the refund of £500 plus interest pursuant to section 69 County Courts act 1984 plus court costs.

Why aren't you claiming interest? Are you trying to do them a favour?

Also, you need to be very clear about the name and address of the company that you are suing. Some of these used-car dealers are very slippery in terms of their company name, their address and the location of their assets.

 

Also, who is the claimant in this case – you or your son?

[dekd123]

Thanks for the help again. I will make the revisions as suggested and for the reminder for my oversight with regard to the interest.

My son is the claimant.

Much appreciated again.

[dekd123]

Good Morning, 

A defence/counterclaim form was submitted by North West Automobiles.

Frustrating that the response is based on simple lies around us visiting to inspect the car (the car was quite honestly never seen physically) no inspection took place to approve condition etc. With regard to their terms and conditions, the car was first seen on the autotrader.co.uk  website where this dealer has a large presence , their own domain website was only searched out, once we realised that they were not a reputable dealer. The defence also weaves in details of how the proposed purchase does not fall within the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

 

[BankFodder]

Please upload the defence in PDF format. Redacted for your own identifiers if you want

 

Also please upload your claim form in PDF format

[dekd123]

Thanks again - Claim form and Defence Form attached as .pdf file format.

Much appreciated!

 

Redacted Claim Form.pdf Redacted defence and counterclaim.pdf

[BankFodder]

They clearly have got some adults to prepare their defence for them.

I don't think you need to worry too much. Also I'm not sure that they are telling lies in the way that you suggest. I think that they are presenting a certain interpretation of the facts.

It will be helpful if you could lay out in a bullet pointed chronology – a point by point explanation of exactly how the transaction went.

No narrative please.

In terms of the defence, there is now nothing to do until you get the directions questionnaire.

You can decide either to go to mediation or to go to trial. Let us know when the DQ arrives

[dekd123]

• Thursday 13^th July, 09:29. Telephone enquiry made as to the car DE11 PLN based on advert on Autotrader.co.uk
• Thursday 13^th July, 09:44. BACS Payment of £500 made to North West Autos via mobile banking app.

• Friday 14^th July, 13:45. Telephone call made to North West Autos to request a receipt for deposit.
• Friday 14^th July, 17:15. Further telephone call made to North West Autos to request receipt for deposit.
• Friday 14^th July, 17:58. Receipt for deposit received from North West Autos (This does state deposit is non refundable)

• Saturday 15^th July, 09:38. Entered the North West Autos premises in person to inform them that the contract was to be cancelled. The salesperson provided a business card with an email to provide bank details for refund.
• Saturday 15^th July, 10:52. Email sent as requested with bank details requesting refund.

Phone call logs, emails, google map timelines and my option of a statement from my son's supervisor who was present during the sales enquiry who specifically tried to nudge my son around checks to deposit and refund on speakerphone and who was also with my son the following day at work - i.e. he could not inspect the car etc in the timeline due to work.

Anything else, please let me know but I think the above is the short timeline and based on fact.

[BankFodder]

Thank you. Could you now please respond bullet pointed fashion – paragraph by paragraph to the allegations contained in the defence.

Just facts. No narrative

Also please can you tell us about this supervisor and what they would say in a statement

[dekd123]

Evening, Directions questionnaire received along with a paper copy the defence.

I have tried to provide a concise response to the defence points 1 -13. 

With regard to the 'supervisor' this person was present when my son called to garage to enquire about the vehicle. He personally spoke to the sales person to ask if the 'deposit was a holding one and refundable' to which the reply was yes. Furthermore, he was also with my son the day after, the only other day where the vehicle could have been inspected as per their claims and he can also provide a statement that my son worked 08:30-17:00 and could not get to the garage to view the car.  Then on the day of entering the premises to cancel, I can act as a witness to confirm we still did not view the car.

 

1.North West Automobiles Ltd is a limited liability company, the companies registered office is 24-26 Canterbury Street, Blackburn, Lancashire, BB2 2HP. The company registration number is 05323539.

Agreed.

2.The Defendant is an independent car dealership who holds in excess of 550 Vehicles valued between £1,000 and £100,000. The Defendant sells used Vehicles to the general public.

Unknown to me.

3.In or around the 13 July 2023 the Claimant contacted us and expressed an interest in purchasing a Volvo C30 registration DE11 PLN which he had seen on our website.

Disagree, an enquiry telephone call was made after seeing the car advertised on Autotrader.co.uk and not on their own website. There are no details on the listing or any of their cars for sale that would suggest that deposits are non-refundable.

4.The Defendant does not operate a distance selling scheme as defined by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, hereinafter referred to as the CCR 2013 which is confirmed within their website terms and conditions therefore it was a term of the agreement that the Claimant was to attend the Defendant’s dealership to undertake a physical inspection of the Vehicle.

The car was listed on other sources such as autotrader.co.uk and motors.co.uk but it was the advert specifically on autotrader.co.uk that was seen that led to the sales enquiry via telephone, so the implied terms were not known to us. The Northwest Motors own domain website was never accessed or known of during the sales enquiry. The telephone call did take into account a ‘holding deposit’ which was agreed but on the basis that it would be refundable should the sale not conclude.

5.The Claimant proceeded to attend the Defendant’s dealership and undertake an inspection of the Vehicle and was happy with the overall condition of the Vehicle.

Disagree. At no time was the advertised car ever viewed even when visiting to cancel the sale.

6.It is accepted that the Claimant placed a deposit of £500 on the Vehicle.

Agree, a holding deposit was placed on the car at the initial sales enquiry on the 13^{th of} July but on the understanding it was refundable.

7.The Claimant then contacted the Defendant after they had undertaken an inspection of the Vehicle and advised that they sought to cancel the agreement under the CCR 2013 as they could not obtain insurance for the Vehicle.

Disagree, no inspection took place, but we did physically enter the premises to cancel on the 15^{th of} July as on way to complete to sale, it turned out that insurance could not be obtained.

8.The Defendant denies that that the CCR 2013 apply in this matter as they do not operate a distance selling scheme.

? Did not appreciate that a business can opt out of the CCR?

9.Further and in the alternative, the Defendant pleads that even in the event that they did operate a distance selling scheme, the CCR 2013 would not apply in this matter as a distance contract is defined as “a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded.”

? Cannot comment confidently but my understanding is that we are protected by the CCR?

10.The Defendant avers that as the Claimant had attended their dealership and undertook an inspection of the Vehicle, the communication did not have the exclusive use of distance communication as the Claimant attended the Defendant’s dealership.

Disagree again, at no time to date has the car been inspected.

11.Further the Defendant seeks to rely upon the following clause within the terms and conditions on their website “all deposits are non-refundable. Money placed on a vehicle to hold and remove from sale will not be returned under any circumstance. Make sure you have appropriated the necessary funds required to complete the purchase of the Vehicle. We ask you think about affordability of purchase before securing the Vehicle. Northwest Autos are a non-pressure sales business. Deposits will hold a vehicle for a maximum of 7 days unless agreement has been made with management by email.”

Disagree, the terms above were not made known at the time of the deposit being place. In fact, my son’s supervisor was present with my son in their company vehicle and when my son was talking to the dealer on speaker phone, the supervisor specifically spoke directly to the salesperson ‘Ahmed’ to confirm that the deposit was a refundable holding deposit that would be refunded should not son not like the car. The supervisor can act as a witness in this respect.

12.The Defendant pleads that the deposit was non-refundable as per the terms and conditions set out above. The Defendant cannot be liable for the Claimant being unable to find affordable insurance as their terms and conditions expressly state “make sure you have appropriated the necessary funds required to complete the purchase of the Vehicle. We ask you think about affordability of purchase before securing the Vehicle.”

Disagree, no such terms are detailed on reputable sales websites such as autotrader.co.uk which is the source of the advertised car that led to a sales enquiry.

13.The Defendant denies all liability in this matter. I believe that the facts stated in this Defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Disagree based on fact and truth.

Hope this helps but more than happy to tweak/edit and or revised based on your guidance. Thanks again as ever. truly appreciated.

Edited September 11, 2023 by dekd123

[BankFodder]

I think that their terms and conditions contain terms which are unfair and therefore unenforceable under the Consumer Rights Act 2015 – though of course that is merely my view.

Additionally, did you at any time sign any terms and conditions or any other document?

[BankFodder]

So you learn something new every day.
It had completely passed me by that the 2013 regulations referred to:

Quote

distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

 

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

WWW.LEGISLATION.GOV.UK

---

These Regulations implement most provisions of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on...

 

This suggests that the 2013 regulations referring to "distance selling" only effect sales which have been made, for instance, by means of telesales operations or online ordering systems.
It suggests that where you get a more ad hoc sale by means, for instance, of telephonic exchange, email exchange or even letter exchanges, and those exchanges result in contractual agreements, then the distance selling rules do not apply.
If this really is the case it would mean that remote agreements formed in this way are to be treated in exactly the same way as if they were ordinary business agreements or consumer agreements concluded in a shop or business premises.

I can scarcely imagine that when this act of Parliament was passed, that Parliament really intended this kind of distinction.

However, what is an "organised scheme" doesn't seem to have been defined at all and so the definition seems to be at large.

This means that one can invite the judge to consider it the meaning but also invite the judge to consider the meaning but also that it's exclusion as such under the terms and conditions is merely an attempt to defeat the 2013 regulations and as such is an unfair term.

Secondly, the terms and conditions that they are apparently relying upon need to be read and signed. That seems to be the effect of their first paragraph of the terms and conditions.
If the terms and conditions have not been explained and have not been signed, then none of it can apply.

So on the basis that the terms and conditions are completely invalid, they have to rely – and you have to rely on precisely the telephone exchange which resulted in your son paying out £500.
Was this a contract for the vehicle? Or is it simply holding deposit?
Was the £500 to be subtracted from the purchase price? Or was it in addition to the purchase price?

If the £500 was to be subtracted from the purchase price then that is very strong evidence that this was a telephonic contract and then we have to argue that it falls within the definition of a distance contract.
Was it sufficiently organised?

You said that you had a receipt and so forth.

Please can you scan them properly – not just photographs – and put them up here in PDF format please.