Quick Survey on what you think is Satisfactory

[rosiecotton]

I think Del has already done another thread about this particular "problem motor" and it's on it's way to court against the HP company.

[rosiecotton]

Why are you suing the garage? You effectively don't have a contract with them and they won't be liable under the Sale of Goods Act. They sold to the HP company who then sold to you, your contract is with the HP company who are liable under the Supply of Goods (Implied Terms) Act as I advised you on the previous post, and as you have been advised by Trading Standards.

 

Is this solicitor you have an expert in consumer civil law? I understand it was a friend of a friend, in which case they may not specialise in this area, and HP can be a minefield if you don't really know what you're doing.

 

If he's suggesting suing the garage primarily under the SoGA (which sounds like the case as he's mentioning fitness for purpose) and the HP company as a second party under Section 75, this is not correct in this case. It is the HP company who is solely liable in law under the Act I mentioned above.

 

You won't be able to pursue the garage under the Sale of Goods Act.

 

I would tend to advise you to stick with the TS advice as they are experts in this area and - with all respect to solicitors among us - unless a solicitor is also a specialist in the area TS are likely to know best.

 

Anyway, regarding the faults - I can't say for sure whether they make the car unsatisfactory. It would seem so based on what you say, but you don't specify what the faults are. Also, I am not a mechanic so would only be speaking as a layman with regard to the faults.

[rosiecotton]

Not being funny, but I would advise your solicitor to read the DTI guidance on HP online. I'll find some links for you.

 

As Trading Standards advised you (and for free!), you don't have legal recourse directly against the garage with regard to the quality or fitness for purpose of the car.

 

This is because, effectively, the garage sold the car to the HP company - not you - therefore you don't have a direct contract with them. The HP company then sold the car to you, and they are the ones who have the contract with you and are liable under the Supply of Goods (Implied Terms) Act. The garage simply act as a supplier to the HP company here as per diagram below:

 

Garage ----Sells to----> HP Company -----Sells To----> Consumer

 

Each sale forms a separate contract between the two linked parties.

 

The HP company has a contract with the garage and they can take their own independent action to recover any losses incurred in your action against them, but you can't take action directly yourself as there is no contract between you and the garage.

 

Say you bought a Sony TV from Comet and it went wrong. You could not sue Sony under the Sale of Goods Act as you don't have a contract with them. They sold to Comet, who sold to you - and that's where your contract is. It's the same principle.

 

I seriously think you need to speak to Trading Standards again as they are the experts in consumer civil law and what they have said to you previously was correct.

 

If you sue the garage under the Sale of Goods Act for not providing a vehicle of satisfactory quality, it is likely to be thrown out of court as you are pursuing the wrong party under the wrong legislation.

 

You need to sue the HP company alone under the Supply of Goods (Implied Terms) Act, and not as a secondary party under Section 75 of the Consumer Credit Act, which also does not apply to HP agreements.

[rosiecotton]

Leaflets from the OFT with relevant info copied:

http://www.oft.gov.uk/shared_oft/consumer_leaflets/credit/oft809.pdf

page 3:

• Your contract is with a finance company (not the retailer) who will own the goods until the final payment is made.

 

 

http://www.oft.gov.uk/shared_oft/reports/consumer_credit/oft303.pdf

page 2:

When the credit grantor takes on the role of the supplier

When a finance company undertakes to finance the hire purchase or conditional sale facilities a trade offers his customers, the credit or sale agreements are generally between individual customers and the finance company (not the trader). Such an agreement covers both the credit and the supply of the goods. In effect, the trader sells the goods to the finance company which then supplies them to the customer. As supplier as well as credit grantor, the finance company bears responsibility in both capacities.

It is also responsible for what the trader says and does when he negotiates with the customer - as it is when a supplier acts as its agent.

 

From Hampshire TS websiteRegulatory Services - Consumer Advice - Your rights when Buying on Credit

Hire Purchase / Conditional Sales Agreements

 

You do not have equal liability rights when you buy on hire purchase. This type of finance is often used for the purchase of cars. The garage actually sells the vehicle to a finance company who, as the owner, then hires the car to you for an agreed period of time. You usually pay monthly hire instalments and at the end of the agreement you have an option to buy.

However, you will not become the owner until the last payment has been made. You will therefore need to refer any complaints about the vehicle to the finance company not the garage. The same applies if you buy on a conditional sale agreement.

 

 

 

Not a legal website but read the part "Who is responsible when goods are faulty?" as it also explains the same: Car finance quotes for new cars / nearly new cars and vans

The info on this page was written by the Trading Standards Institute

It's repeated here: Trading Standards Central - Trading Standards and Consumer Protection information for the UK and this specifically relates to Scotland.

 

 

There's other stuff too if you Google it.

 

Don't want to throw a spanner in the works here, but I am seriously concerned about the advice you are getting from the solicitor and I urge you to revisit this immediately.

[rosiecotton]

Afraid not, being in Inverness would mean staying with the in-laws and I'd need paying more than a solicitor for that

 

It's very strange to have that in the HP agreement and is certainly not statute law, I wonder if the dealers know this is there. Obviously I've not seen the paperwork so can't comment on this, I was just a bit concerned that it seemed to go against all statute law. Hopefully the links above will help a bit anyway

[rosiecotton]

After looking carefully at my notes this is how i get the just of what the solicitor was saying, (and i may have got it wrong) In the HP agreement it states that if the goods are not satisfactory then i may sue the HP company or the original suppier or both, and i believe this is where he took the idea to sue the garage, nut i could have got him wrong and he may indeed be wanting to sue Capital bank instead. Derek

 

Of course, just had a thought when revisiting this thread, that in HP agreements the finance company are both the supplier and the finance provider (as stated in the OFT leaflet I linked to above). So by saying the supplier, this is still legally the HP company.

 

Hard to tell without seeing the paperwork myself of course but this is a possible explanation, though it doesn't seem to make much sense and seems to be a bit of a pointless term if that's what it's meaning to convey.

 

Oh and with regard to cancellation, you wouldn't have a "cancellation period" as such unless the finance was signed away from normal business premises, but you would of course be able to voluntary terminate the agreement provided you fulfil the obligations (paying up to 50% of the agreement etc).

[rosiecotton]

You won't be able to claim the costs of hiring a solicitor, but you will be able to reclaim your court costs and any expenses you have directly suffered from having to spend the day in court (travel costs etc).

 

This is how it is in England anyway; I'm assuming it's the same in Scottish Sheriff Courts.

[rosiecotton]

Normally small claims is unrepresented, because of the fact they don't award costs. I would have no idea how many hours of a solicitors' time would be spent on a case should someone choose to use one.

[rosiecotton]

Better off asking local advisers to be honest, I'm not experienced in the Scottish court systems so I wouldn't like to comment.

 

In the English courts I would advise a small claims procedure to reclaim what you have paid under the Supply of Goods (Implied Terms) Act, if you were successful there is no way they could ever pursue any more money from you as the judge will have accepted that the car was not of satisfactory quality and the court order will be to repudiate the contract and put both parties back into the position they were in prior to the contract. It would all come together.

 

But you're better off getting this confirmed from someone who knows how the Scots courts work

[rosiecotton]

That sounds like positive news