Section 75 claim against garage/MBNA

[angw49]

Hi all

 

I'm new to the site and have a court case looming that i would like some advice about.

 

In August 2006, I purchased a used 4X4 car from a Garage near where I live for £3500 + £105 credit card charge. 14 days later the car broke down on our way back from the coast and we've found that the piston had gone and needs the whole engine replacing which will cost £1700. Due to the amount of time we had the car, we asked the garage for our money back or a repair. The manager was very rude on the phone, telling us that he'll see us in court and hung up!!! The invoice did state a list of faults but nothing about the engine/piston etc.

 

As we used our credit card for the purchase, we investigated section 75 of the CCA and the Sales of Goods Act and claimed against MBNA as we felt we have a really strong case. Two of their advisers agreed that we had a claim and told us not to worry. My husband also rang his solicitor to discuss and they confirmed we had a strong case and it shouldn't take long to resolve...yeah right.

 

MBNA's legal team came back stating that they won't refund anything. We then issued a court claim against MBNA for the full purchase price + interest. They contacted us to say that if the garage weren't trading any longer, they would refund but as they are, they've issued a part 20 claim against the garage. We're now waiting for a hearing date which apparently we'll hear something this week.

 

In December, the garage's financial adviser contacted us to say they would pay half towards the cost of the repair at their garage but we declined (spent too much on that heap already). They haven't contacted us since with any further offers and I don't really want it repairing at that garage...I don't trust them now???!!!

 

I'm getting a bit scared/worried now as i can't afford to lose over £3500. Does anyone have any advice they can give me as we'll have to represent ourselves at the hearing. Do you think I've got a valid claim? I still have the car as they won't take it back and I've declared it as SORN.

 

Sorry to ramble on but wanted to make sure you have the full picture of the situation first.

 

Thanks in advance.

angw49

[happyolddog]

Hi, Angw49,

 

Sorry to hear of your situation. You are doing the best thing by taking this to court. MBNA are notorious for their stalling tactics. If this does go to court ( and I dont think it will ) MBNA will be liable for the costs including the court costs. So stick it out, but make sure you keep them informed that you intend to stick it out.

And finally, GOOD LUCK.

[angw49]

Thanks happyolddog,

 

I intend to write to both (mbna & the garage) within the next few days to see if they'll both split the cost of repair between them, which will be about £900 each.

 

I'd be gutted about losing my court costs but I just want this over with asap.

 

Thanks

angw49

[Guest willowb]

Hiya:)

 

I think that you need to copy and paste that and post a new thread in the 'general consumer issues' section of the forum (or ask for a mod to move this thread into there). You'll probably find someone in a similar situation in there if you read around some threads.

 

Good luck with getting it all sorted out.

 

Wxxx

[Josamolly]

I will arrange a move to the correct forum.

[MARTIN3030]

Moved here for you

[rosiecotton]

The main concern that I have is that the law will not allow for you to have betterment.

 

If you end up having the engine replaced with a brand new engine, you would be in a better position than you would have been in had the car never broken down. This is what "betterment" means, and it is entirely possible that the judge in court would expect you to make some contribution towards the repair as you will be benefitting from it.

 

In addition, there is a risk that the garage will defend the claim with "the fault occurred due to normal wear and tear". The Sale of Goods Act does not cover normal wear and tear. I'm no mechanic and you don't say the age and mileage of the car, so I cannot guess at whether this fault is wear and tear or not something you would expect. Be prepared to come up against this argument in court though, and try and get evidence to the contrary.

 

If you are pressing ahead with rejection of the car, be sure to have covered the potential defences shown above.

 

If you are seeking a repair, you do need to give the trader where you bought it a reasonable opportunity to put it right (so you wouldn't be able to claim costs if you take it elsewhere to be fixed without giving the trader a reasonable chance first) and you would need to be aware that if you end up with a car with newer parts than you originally paid for, you may need to make a reasonable contribution to reflect this (although they should provide the labour free of charge). Also be prepared for a "wear and tear" defence.

 

It just concerns me that the judge may see that their offer of paying half the costs of the repair might not be wholly unreasonable if the car is fairly old and high mileage...

[angw49]

Thanks for your post.

 

The quote for the repair is for a second hand engine, it isn't a reconditioned engine or a brand new one. So, surely this wouldn't make me better off that i was before??

 

The car itself is a Mitsubishi Pajero (imported) on a P reg and the mileage is around 115000. The actual problem is that the piston and crank shaft has gone so the whole engine needs replacing.

 

The garage MOT'd the car before i bought it and i would have presumed that the problem would have come up in that MOT. It simply can't blow up less than 3 weeks later if the problem wasn't already there. Neither did i think that this kind of problem is 'normal' wear and tear..am i wrong?

 

For a brand new engine, we would be looking at a cost of around £10000 so i can imagine that a judge would say we would have to pay part of it if we were getting a new engine but that isn't the case here.

 

As we bought the car with a credit card, surely we've got a claim against MBNA under Section 75 of the Consumer Credit Act as well. They've actually told me that we have a claim against them but they're refusing to pay because the garage are still trading....bizarre!!!

 

What do you think i should do...shall i still send the letter to both Mbna and the garage asking them to pay half each????

 

Thanks

angw49

[rosiecotton]

Ah ok, if you're replacing with a like-for-like engine there would be no betterment, so you are right that would not apply.

 

If it's not a normal wear and tear fault (that will now be the only issue, worth getting a Mitsubishi dealer opinion on this), then you have a claim for the repair.

 

Yes, MBNA are equally liable under Section 75 (and in my experience they're one of the better card providers for dealing with this) but they will look to see what you have done to resolve it with the trader before coughing up, I expect.

 

If it were to go to court, you would name both parties on the court action and sue them both for the amount. Chances are if the trader was still trading the judge would order them to pay, with the card company being liable if the company do not or cannot pay up.

 

However you have the right to pursue MBNA equally, as they are in law just as responsible as the garage are for the faults.

[angw49]

That's put my mind at rest a bit...I think I'll get in touch with a Mitsubishi dealer like you suggest (I can't believe i didn't actually think of that before!!)

 

Hopefully, it'll make my case stronger. I'll post again with any updates.

 

Thanks again

angw49

[angw49]

Just got court hearing date through...2 May 2007 at 2pm.

 

Still a while to wait and the garage are trying to scare us at the minute. They've apparently been driving round with a low loader truck to take the 4x4 and get rid of it. We've moved it now and it's far away from my house.

 

Unfortunately, i don't have any proof of them doing this otherwise i'd go to the police but they're well known for not playing fair (wish i knew that before) The problem is, the garage is literally 5 mins from my house so if we win in court..they know where we live!! I spent all last night worrying and crying about this and now i've still got to wait another 3 months!!

 

angw49

[mel3398]

Hi

I am also new to this site and having trouble with Alliance and Leicester on a section 75 claim. I am in Norwich any ideas on where I could get legal advice from.

Mel

[dragon42tt]

Just got court hearing date through...2 May 2007 at 2pm.

 

Still a while to wait and the garage are trying to scare us at the minute. They've apparently been driving round with a low loader truck to take the 4x4 and get rid of it. We've moved it now and it's far away from my house.

 

Unfortunately, i don't have any proof of them doing this otherwise i'd go to the police but they're well known for not playing fair (wish i knew that before) The problem is, the garage is literally 5 mins from my house so if we win in court..they know where we live!! I spent all last night worrying and crying about this and now i've still got to wait another 3 months!!

 

angw49

 

Its been many years but I'm wondering what happened in court ? did you win ?