Frequently Asked Questions Honest John — Volkswagen Derby II

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Volkswagen Derby II

CONSUMER RIGHTS. How do I reject a car or get compensation for problems with a car I bought from a dealer?

this gives you your rights based on statutory and case law, it’s always best to attempt to first.

A dealer might try to use a lot of to try to wriggle out of a claim, but as soon as you asserting your rights by the appropriate case law, in Clegg v Olle Andersson, he may

The limit for claims in the Small Track of the County Court was from £5,000 to £10,000, as April 2013, making service much more in disputes over purchases of

Small Claims cases be commenced via moneyclaim.gov.uk , which is than the Small Claims of the County Court.

You have to the Sale of Goods Act 1979 II Section 14, as modified by the Supply of and Services Act 1982, subsequently by the Sale and Supply of Goods Act contending that the supplier is in of contract to you for supplying a car which was not of quality, or did not remain so for a reasonable of time. Appeal Court law (Bernstein v Palmerston Motors has held that the supplier be given three chances to the fault for which the goods are and must have failed to do so. The must be returned to the supplier with all keys and paperwork. and Scott v Blade Motor 1997.) And the supplier (in the case of a car the principal of the dealership) must be a letter by recorded delivery why the car has been rejected as not of satisfactory Case law (Rogers v Parrish has put a limit of 6 months on the time you can reject a car and obtain a full though lesser refunds, account of mileage covered, may be outside that period. The you pay compared to market value be taken into account. So if you buy a car on trade terms you cannot it under the Act. And if you buy a cheap car £2,000) on retail terms a trader, you cannot reasonably it to be perfect.

The House of Lords Court verdict in Clegg v Andersson (trading as Nordic 11-3-2003 has caused some which some believe to overruled Bernstein v Palmerston 1987. In this case a was supplied with an overweight in breach of its specification which part of the original contract. It was that Clegg could the yacht at more than 6 from date of purchase though Mr Andersson had offered to modifications to try to correct the fault. because the yacht had originally supplied of unsatisfactory quality and was admitted, Mr Clegg retained the to reject it. For Clegg v Olle to apply to other cases, it be proven that the fault on the date of sale and constituted a of the original purchase contract. v Olle Andersson cannot where a fault develops at time after purchase. In cases, it was thought that v Palmerston Motors 1987 applied and the dealer has to be given clear chances to rectify the

A new draft Consumer Bill in the Queen’s Speech on 8th May 2013 is to set out clearer consumer rights, in allowing the retailer only one to repair a fault before the can reject a product such as a If this is passed by Parliament it over-rule the the ruling in Bernstein v Motors 1987.

But another that related to a car sale, was v J Richardson Son Rugby County 28 January 2004.

The two key issues whether a reasonable time had before the Claimant intimated rejection of the goods, so as to preclude (Sale of Goods Act 1979, And whether the Defendant had accepted the rejection of goods by doing without his authority, and whether were bound by that Also of note, the Defendant’s repairs rendered any subsequent expert inspection worthless. poor case preparation (in their failure to provide evidence, even where it have been available) was not fatal to their case, but it was instrumental in the Claimant’s success.

The was decided at County Court and it is not a binding precedent (as is Clegg v Andersson), but it may be persuasive in future Court cases.

‘Reasonable for Rejection

The judgment shows how the in Clegg v Olle Andersson T/A Marine [2003] EWCA Civ 320 is applied in practice (and how v Palmerston Motors (Golders Ltd [1987] 2 All ER 220 is not accepted as current Whereas Clegg was concerned the rejection of a £1/4 million this case dealt a motor car, a situation far familiar to consumer advisers.

Summary: Mr Bowes bought a new car the Defendant, and it was delivered on 2 September Over time, it became that there were faults with the car, and Mr rejected it on 2 April 2003, 7 months and 2811 miles delivery. The Defendant said Mr Bowes could not reject the due to the time which had elapsed. Mr had notified the Defendants of various at intervals between one day and a few weeks, and of these defects were present on 2 April 2003 the Defendant’s attempts at diagnosis and accordingly, Mr Bowes had not lost his to reject the car.

Acceptance of

Although the case was decided on the of Clegg and s.35(4–6) of the Sale of Act 1979, the District Judge dealt (obiter) with the of ‘acceptance of rejection’. In his judgment, the in s.35(1)(b) of the Sale of Goods Act be applied in reverse, when whether a seller has accepted a rejection of goods.

The Defendant had out repairs without Mr Bowes’ In doing this, they had in a manner inconsistent with Mr ownership, thereby accepting the car had been rejected. They bound by their acceptance of Mr rejection, even if he had not in fact entitled to reject the car.

principle of ‘acceptance of rejection’ potentially be very effective traders carry out unauthorised after a consumer intimates (and especially where jeopardises the chance of obtaining an expert report).

This was a County Court case, so overrule Bernstein v Palmerston but may still give scope for when a fault or raults with the car some time purchase.

www.bailii.org/ew/cases/EWCA/Civ/2003/320.html — and the paragraph is paragraph 63, where the says (of the Bernstein decision): In my it does not represent the law now. was partly because the Bernstein pre-dated the Sale and Supply of Act 1994. which gave more rights to reject

The Supply of Goods to Consumers 2002, is derived from EU 1999/44/EU which became 48A to 48F inclusive of the Sale of Goods act in 2003. This reverses the of proof so that if goods go within six months after it is deemed they were at the time of purchase and the trader has the of proving that the item is not due to a manufacturing defect.

This more teeth to the judgement in v J Richardson Son

The Consumer Protection Unfair Trading Regulations (CPRs) contains a general against unfair commercial and, in particular prohibitions misleading actions, misleading and aggressive commercial practices. The are enforceable through the civil and courts.

This creates an of misleading omissions which not previously have been an if the consumer had not asked the right So if a salesman knows a car has, for been badly damaged and and does not tell the customer, he later be held liable if the subsequently discovered that the car had damaged and repaired. A recent precedent over Misleading under Consumer Protection Unfair Trading Regulations was Regina (House of Cars) v Car and Van Contacts Ltd, Derby Court before HHJ Burgess on covered here: Regina of Cars) v Derby Car and Van Contacts Ltd

the first six months:

The consumer the goods in the first six months the date of sale and requests a or replacement or a partial refund. In case, the consumer does not to prove the goods were at the time of sale. It is assumed they were. If the retailer not agree, it is for the retailer to prove the goods were satisfactory at the of sale. This comes Sale and Supply of Goods to Regulations 2002, derived EU Directive 1999/44/EU which Clauses 48A to 48F inclusive of the Sale of act in April 2003

after the six months:

Under sale of legislation (Sale of Goods Act Sale and Supply of Goods Act consumers are entitled to expect any goods they buy are of satisfactory That is, that the goods the standard that a reasonable would regard as satisfactory into account the way they are their price, and any other circumstances, such as the fact they are second-hand or used.

If a that was not of satisfactory quality at the of the sale is returned to the retailer, the is entitled to a full refund (if it is a reasonable time of the sale), or, if a time “ has elapsed, to a reasonable of compensation, or to have the goods The consumer needs to demonstrate the were not of satisfactory quality at the of sale. This is so if the consumer to request an immediate refund or It is also the case for any product more than six months the date of sale.

If the amount is less than and qualifies for the Small Claims then any decision made not become case law. from £5,000 to £10,000 in 2013.)

However, if it goes to the Court, then a ruling become referrable. County rulings can be overruled by Appeal rulings which then case law. And cases be argued on the facts. So though the and Supply of Goods Act may appear to you rights, your true are governed by case law and asserting can be very expensive.

WARNING PURSUING A TRIVIAL CASE TOO FAR

Appeal Court Case supplied by Andrew Quirk

A hearing highlighted the importance of sensible early legal in order to save unnecessary

Darren Egan vs. Motor (Bath) Ltd (18 October 2007) is a of Appeal case which saw the who attempted to reject his vehicle out dramatically.

The consumer complained his car, a new Audi TT 3.2 litre V6, to the left and as such wanted to the car to the dealer and be refunded.

Whilst an witness gave evidence the consumers claim, the Court that the vehicle was of satisfactory because the sensitivity of the car to camber was in normal for that type of car the reasonable person would not that this would the vehicle unsatisfactory.

This a useful case precedent for dealers as it makes clear vehicles may have characteristics as sensitivity to the camber of the road being of unsatisfactory quality. It may prove to be useful case law for of other consumer products.

The expenditure of both parties was £100,000 and the car cost £32,300 in 2003. This led Lord Ward to exclaim: . one or other to the action, if not both of them. . completely cuckoo. to have the litigation when little was at and that the lawyers should taken . the firmest grip. the outset.

This case the fundamental importance of getting guidance on the legal issues in a dispute and how to resolve it at the earliest

Clarks legal provides a of motor help lines allows motor dealers to advice on their position as as a customer issue arises, as a appropriate steps can be taken proceedings are even considered by a For more information please aquirk@clarkslegal.com

Alternatively, if the claim is a simple one for a specific amount of use www.moneyclaim.gov.uk run by HM Courts Services.

links:

A traders guide: the law to the supply of goods and services

connects you to your local Standards office for free by telephone or e mail on all the usual of commercial (not criminal) encountered by motorists, and others.

that the Act that compels to supply spare parts for cars for 10 years from the of sale is the Supply of Goods and Act 1982.

Trade Sales aren’t

The Sale and Supply of to Consumers Regulations 2002 buyers of relatively new used who pay a full retail price a guarantee of 6 months from the of sale by assuming that any that occurs with the within 6 months was already at the date of purchase. You have mentioned dealers attempting to get these regulations by calling a that obviously is not, a sale. A trade sale that the customer is a trader some knowledge of the car trade who is the car to re-sell. In reality this is meaningless. It is not possible for two contracting to agree to avoid the effects of the protection legislation (even if wanted to). Obviously, if the car is to an ordinary private individual at a price, then its status as a sale for legal purposes to be challenged and precedents set in the courts to judgements in other such

New Consumer Protection Regulations from 26th May 2006 .

The Protection Regulations (CPRs) into force on 26 May 2006.

The apply to all businesses that directly with consumers – second-hand car dealers, car rental and mechanics. They ban 31 types of sales practices outright posing as a private dealer, closing down sales and credentials. They also, for the time, establish a catch-all not to trade unfairly, closing that rogue traders previously been able to

Consumer Affairs Minister Thomas, said: “Honest understand the value of treating fairly and they’ve had enough of profit to rivals using tactics to get ahead. The Consumer Regulations will deliver protection for consumers, cut red tape and put in a simpler and clearer consumer law will be easier to interpret and

Trading Standards and the OFT will the new law. A wide range of are available to them, depending on the of the offence, from guidance and of conduct to unlimited fines and prison sentences.

Whilst the of businesses do trade fairly and may not to change their practices, important that all companies are with the new law and how it will affect For more information on the Consumer from Unfair Trading visit www.businesslink.gov.uk/unfairtrading.

The Consumer from Unfair Trading implement the Unfair Commercial Directive which establishes of trading across the EU, making it to market goods and services to an market of 460 million consumers.

The invested approximately £7.5 in new specialist Trading Standards teams. These teams the real crooks that set out to defraud consumers. They be at the forefront of using the new Consumer Regulations.

The legislation primarily businesses across the UK who trade with consumers or whose are used by consumers and cover services, obligations and contractual wherever trading takes including on the high street, by phone or via TV. BERR believes are around 750,000 affected in total in the following sectors:

o motor trade

o Timeshare and clubs

o Home maintenance, and improvements

o Betting, competition and draws

o Sale and repairs of vehicles

o Retail

o Hotels, and take away food

o Rental of automobiles

o Rental of and recreational equipment, incl. TV and rentals

o Dry cleaning, hairdressers, treatments and physical well-being

The for Business Enterprise and Regulatory helps UK business succeed in an competitive world. It promotes growth and a strong enterprise leads the better regulation and champions free and fair It is the shareholder in a number of Government-owned and it works to secure, clean and priced energy supplies.

Section 75 of the Financial Services Act

If car is being purchased on finance, you may be able to obtain redress the finance house.

You need to under section 75 of the Financial Act.

Johnson v HWM Ltd Kingston Court 17-3-1997

Allows an delivery date for a new car and also of specification

of the car in between dealer and manufacturer delivering the car to the dealer both are out of control of the dealer. If a has been entered into dealer and customer with a deposit, then that remains binding and, specified in the original contract, an delivery date or change of are not breaches of contract.

Robert V DaimlerChryser Retail Limited T/A Chelsea, Bromley County 21-11-2008

Claim No. 6BO01850 ( Bow Court)

The trial took at Bromley Crown Court on the November 2008 and Judgement was at Bromley County Court on November 2008.

Legal Set:

If you are given a roadside the garage/showroom is responsible for your car it is being recovered by whoever instruct/sub-contract to.

A buyer cannot to agree to terms and conditions if the he signs states the terms and of the warranty will follow 7 working days. You cannot to terms unless you are made of them prior to signing.

For if an order form states 12 roadside recovery, the fact

this recovery is provided by a legal company does not the seller of the recovery service, as the form (contract) does not this fact and the order is with the specific retailer who it.

Barnes v McGrath Evesham Court May 2011 . Dealers to include repairs and returns in their TCs

This did not set any legal In this case, the dealer sold a car to the plaintiff Barnes. The failed and Barnes has it independently then invoked the CPRs and v Olle Anderson in the Small Court to sue McGrath for the cost of McGrath contended that he have been given the to rerfund Barnes money and the car back, or replace the engine But he lost his case and also the right to appeal the ruling. The behind the judge’s decision was while Mr Barnes should sought recourse with the McGrath before having the replaced, unless this was as a *requirement* in the terms and conditions and the was advised of this at sale could be no assumption that (as a private individual) would that is what he had to do and consequently take it anywhere to get it fixed the cost were reasonable).

T he judge believed that Mr Barnes and Mr McGrath were and honest and said so — and a fault had occurred with particular vehicle which to be rectified.

However the implication for the hand dealer is that the dealer defines a returns and policy at time of sale in Terms and Condtions then the has no need to prove there is a with the vehicle following nor indeed is their any requirement for the to be offered the opportunity to repair any or refuse to pay if the customer takes the car to his own providing that the costs of the are deemed by the court to be reasonable.

It be stressed that this is a claims court decision and not binding but the implications are that all need to include a returns and policy in their terms and and flag up the policy to their if they wish to avoid charged to them for repairs have not been acknowledged, or pre-agreed and which might be at their expense by third repairers.

The case originally at Evesham court concerned a Rover Discovery sold by Sean McGrath in March to private buyer, Garry

Barnes, an accountant and company for a midlands PLC, claimed the car gearbox noise two weeks purchase, but rather than McGrath to ask him to fix it or even informing him of the he had a replacement gearbox fitted a local repairer at a cost of

The first the dealer McGrath of the gearbox failure was when he a demand for payment three later with a threat of action under the Sale of Act if he did not settle the bill.

The case to Evesham County Court both parties represented

District Judge Savage the case accepted the honesty of all the and ruled that the car had broken as Barnes had said and that the of the repair had been reasonable. Mr Barnes ought to have the dealer first, as a member of the he may not have known this and is nothing in the Sale of Goods Act requires him to do so’ said the judge.

Barnes being unable to the old gearbox or a receipt for the purchase of the gearbox Judge Savage in favour of the claimant and ordered to pay him £2751.04 plus £443

McGrath sought to appeal the on the grounds that it was well practice and defined in the Office of Trading’s guidance on the Sale of Act that he should have a to examine the vehicle and instruct his own

However leave to appeal was by Worcester court which that McGrath’s “returns and policy should have defined at time of sale in his and conditions.

Hahn v Pines of Bournemouth County Court May

This case, started on the claims track of Weymouth Court in December 2004, to the county court and then to appeal at Bournemouth County in April or May of 2005. Mr Hahn had a 1998S Subaru Legacy 2.5 Pines of Wickham in August for £4,000. It was found to have a cylinder head gasket on one of the of cylinders. The first small court judge ordered to repair the car and compensate Mr Hahn £500. The dealer appealed, and a of enforcement was granted. At the appeal Pines barrister contended the car had not been worth repairing, in fact, it had been repaired. at a third hearing, the judge against the dealer and criticised him for not the matter more quickly.


Losses

If a car still under warranty breaks down you are on holiday, and is repaired under you may be successful in claiming consequential arising from losing the car the period of the repair.

Freeborn Citroen dealership in Southampton, sold the Rev Carl Chambers an C4 Picasso.

But after 16 months the car down in the middle of a family in France. A gearbox selector had and took weeks to fix.

asked for a hire car from but was refused. Instead, he had to pay to hire a car for the of the holiday, fly himself and his family hire another car in the UK, then fly to France to drive the original car once the problem was fixed..

Citroen paid for the repairs but to cover all the extra costs to £1,345.16). arguing they liable because he didn’t the extended warranty and breakdown

Chambers decided to use the 1979 of Goods Act to get compensation.

The Small track of Brighton County ruled in his favour for consequential and Chambers received £1,345.16 in

Because it was a Small Clain in a Court, it sets no legal precedent.

The Sale of Goods Act any goods sold must be of quality and also reasonably fit for The contract of goods is between the and the buyer – not the manufacturer and buyer

So in the of a car, the garage that the car was responsible.

The act states: ‘The you brought must remain of quality for a reasonable amount of whatever the length of the warranty.

fees are set out by Her Majesty’s Court

Court Issued Claim

Claim Online (MCOL)

Issued Claim up to £300 = £30

Claim Online (MCOL) up to = £25

Court Issued Claim — £500 = £45

Money Online (MCOL) £300.01 £500 = £35

Court Issued £500.01 — £1,000 = £65

Claim Online (MCOL) — £1,000 = £60

Court Claim £1,000.01 — = £75

Money Claim Online £1,000.01 — £1,500 = £70

Issued Claim £1,500.01 £3,000 = £85

Money Claim (MCOL) £1,500.01 — = £80

Court Issued Claim — £250,000 £1,170

Claim Online (MCOL) — £250,000 N/A

Money Online (MCOL) £250,000.01 £300,000 N/A

Court Issued more than £300,000 or an amount = £1,530

Money Online (MCOL) more £300,000 or an unlimited amount N/A

If you are claimed against you should fort EX303 on the HCMS which gives you all the information you to respond to a claim following the of an NI by the Claimant. Link to HCMS/EX303

Privately

A buyer from a seller does not have any rights’, but still has the benefit of an contrtactual term that the has the right to sell the goods SGA)

He also has the benefit of the contractual term that the if sold by description, correspond any description applied (s.13 There is no need for a buyer to relied upon the description or for any on the part of the seller: if it counts as a then it is a term of the contract and is actionable as a breach of contract, contractual liability is strict.

if it does not count as a description for the of s.13, it may anyway be a term of the if the buyer made sufficient of it, and even if not a term of the contract an lies for misrepresentation where a of fact is made prior to which has some influence, small, on the

other party’s to enter into the contract, and proves to be false, thereby loss to that party. All of is equally applicable whether a is a trader or not.

The implied in s.12 (seller has right to cannot be excluded by any contractual s.6(1) Unfair Contract Act 1977 (UCTA). That in (description) cannot be excluded if the is a consumer: s.6(2) UCTA. In case the status of the seller is

A very interesting point for motor traders arises in to s.14. The term in s.14 quality) only applies the seller sells by way of business. It can be excluded against a buyer who by way of business if the exclusion is reasonable: UCTA. As with the s.13 it cannot in any circumstances be excluded a consumer buyer: s.6(2) This means that a trader offers to sell at of two prices, one a ‘consumer’ price the benefit of s.14 rights, the a ‘trade’ price without the this exclusion has no effect if the at ‘trade’ price is in fact a unless he fraudulently holds out to the seller as a motor trader so the seller thinks he is indeed with a fellow motor A consumer cannot bargain his rights under ss.13 and 14 by of a

collusive pretence with the that the sale is within the

Further detail on the implied can be found in Dr Richard Austen-Baker’s Implied Terms in English Law, available from all booksellers for £65.

Latest News 2-7-2013:

BC of Warwick has won a small claims against a Coventry trader a £3,000 Ford Focus car bought from an advertisment on

The story of how he achieved this may other readers to take where they feel have been cheated.

BC the used Ford Focus on Autotrader for £3,000 from Gary Thorn of G.T. 5 Farber road, Walsgrave,

Ater 3 weeks it broke The trader took 10 days to the car and it broke down again on BS home.

15 days later BC got the back again and it broke for a 3rd time 3 days later.

the 3rd failure, BC requested a refund. was refused. So BS went to the Citizen’s Bureau and Trading Standards for advice.

He arranged a compromise for the car to be at a 3rd party garage (VRS However, only remedial was done to replace the timing of the diesel engine and 2 days the same engine system occurred and the vehicle broke for a 4th time.

BC took the car back to the and requested a refund.

He said he to check it out first before he give BC the money back. BC was on Holiday the trader took the car authorization from BC back to VRS and that a diagnostics was carried BC discovered this when he a call while on holiday say his car was to be picked up.

When the garage Gary Thorn for him to come and the car he refused to pay, so VRS was forced to the right of lien and hold the car payment was received. BC was therefore with no car and no refund.

BC received from the Northampton County and issued a warrant on 6th June in order to execute this to hopefully get his money back payable: £3,504.50.)

The car was originally to him described as in fantastic condition and the failed to disclose that it had sold to him for scrap 1 month

After receiving the court the trader tried to force BC to pay the of storage charges it had accrued on VRS premises.

How to make a claim the small claims track of the court:

https://www.gov.uk/make-court-claim-for-money/overview

8-10-2013: Car Magazine reports that a car dealer has been fined a of £3,645 for selling an unroadworthy despite the fact the price had reduced from £995 to

The case sets no legal but serves as a warning to small that the business of selling cars at below £1,000 is no economically viable.

Owner of the Leon Howman, pleaded to two offences under the Road Act and the Consumer Protection from Trading Regulations on September 23 at Hertfordshire Magistrates Court.

Howman was away in Switzerland he his brother, Bevis, in charge of the Leon Howman Cars in Hitchin, Hertfordshire, where he an 11-year-old Zafira.

He sealed the at a reduced price of £700 from the original £995, as a sale to Trading Standards posing as consumers in January year.

According to The Comet the car had a worn handbrake and a rusty joint that affected the making the vehicle dangerous to

The court heard that Standards Officers had given advice in 2010 to Leon including advice on checking the of cars.

Howman was also that he could never a consumer’s statutory rights statements such as ‘sold as ‘no refunds’ and ‘trade sale which try to disclaim liability.

is said to have put the offence to a mistake by his brother, who was left in of the business without knowing the responsibilities.

The business was fined for the sale of the ‘unroadworthy car’ and for trying to escape liability by the deal a trade sale. Howman Cars was also to pay prosecution costs of £1,645 and a surcharge of £120.

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