Issues with Newly Bought Used Car - Trader not bothered

[hotmale]

It's been a fairly long time since I've been on the forum, but I've stopped by and taken an interest in this particular thread (since I've been dealing with a large number of consumer contract litigation files for the past 3 or 4 years).

There is some misleading information that has been posted in this thread and some fairly basic questions that have not been asked, as far as I can see.

Point 1:

Starting with the first point regarding liability with faults with the car. It is not correct to say that it is enough simply to prove that the car is faulty and was faulty at the point of sale/supply. The question, under the CRA 2015, is whether the car "conforms to the contract". In short, you need to show that the fault is such that the car is not fit for purpose and/or of satisfactory quality.

Point 2:

It has been said that between 30 days and 6 months you must allow the trader 1 chance to repair. Whilst it is correct that you must allow 1 chance to repair after the 30 days is up (save for when the initial right to reject has been extended), there is no upper limit; i.e. the final right to reject is not time limited (other than by standard limitation and evidential issues caused by passage of time).

Point 3:

The question of age, mileage and price are very relevant to determine whether the faults will render the car unfit for purpose and/or of unsatisfactory quality. For example, a head gasket leak on a £1,000 car with 150k miles may be acceptable, whereas it would not be on a £10,000 car with 50k miles.

If you can show that the fault exists and that it is sufficiently serious to render the car unfit for purpose and/or of unsatisfactory quality, then because the fault has manifested within 6 months of purpose/supply, the burden of proof is on the trader (or credit card company if bringing a claim under s75) to prove that the fault was not present at the point of sale.

I hope the above is of some use.

Hi United front thanks for your reply and interest, I am bit confused that the points you've mentioned are in my favor however I will try to explain as per the points raise as my point of view -

Point-1 Car Conforms to the contract - Well the contract was breached with the misinterpretation of warranty and I've garage report within 30 days windows which advises of performance issue and coolant leak and to monitor coolant for further leaks which I did and later raised. I've been to garage last week and been told (based on smoke type and engine cap check filled with white dust/cream) gasket is gone and not sure how much damage has been done to the engine until engine is opened to replace the head-gasket. This is why car is not performing in higher gears as well. However Bank wants me to get report (cost around £150) which will prove the fault with car, however in their each letter and email they want me to prove that report should prove that fault was there at point of sale which does not make sense as no diagnostic report do that. And I've already provided them the advisory from garage in feb-18.

Point - 2 I am still in 30 to 6 months windows as sale was around 22 of jan this year.

Point-3 Car price is 4600 all paid from credit card mileage 50k.

Another point I would like to mention is company is still active on companies house and bank has provided no evidence of ceased trading of current ltd company same directors are now running the business from the same address.

Now my point is how would you like me to prove fault is serious, My garage is happy to provide me another inspection report (not diagnostic) based on recent findings last week (paid) . But Banks focus is to prove report which says fault was present in jan-18 which is nonsense.

Not sure I am able to explain myself but as DES8 mentioned bank can hire solicitors to defend I am not sure what steps I should take. I really appreciate your help

Thanks

[des8]

Glad to see someone has at last looked at smoke and filler cap,,see posts 14 & 24

Blown head gasket = engine unsatisfactory = breach of implied terms of contract

[UnitedFront]

OK, so with a car at that price and mileage, yes it is likely that a judge would accept that a blown head gasket render the car of unsatisfactory quality.

However it is utter rubbish to say that a blown head gasket always = breach of contract. It always depends on the facts of the case and to give such a simplistic interpretation to the law is really not clever. If that is the standard of advice being given on this forum these days then things have really gone downhill.

For what it's worth, I think you should win a claim against the credit card company, but you'll need an expert report. Make sure it is CPR Part 35 compliant report (yes, I know part 35 technically doesn't apply to Small Claims Track claims, but you would be amazed at how ma y judges act like it does and refuse to put any weight on a non-compliant report). Don't pay more than £750 because that is the most you can recover on the SCT for expert report.

The credit card company may instruct sols or their may use in-house people. I've seen both. I wouldn't worry too much though - SCT trials are pretty informal and the judges lead them, so you'll be fine.

That's my input and now I'm going to leave the forum again because I really can't stand to read such stupid over-simplification of the law any more.

Best if luck.

[des8]

To clarify;
!) quote "a blown head gasket always = breach of contract." that is not what was said
2)quote "Whether or not the car is of unsatisfactory quality is a question of law - not one for mechanics to answer. It is a question for the judge to decide, based on all the facts."... but he will need to be guided by the engineer's reports
3) quote "Equating the existence of a fault at the point of sale with an automatic breach of contract is simply wrong."....no one has done that
4) quote "My point is that one of the said that "between 30 days and 6 months" you have to give the trader one chance to repair before you can reject. That post therefore suggests that the final right to reject is only available for 6 months after purchase (which is wrong)." it does not suggest that interpretation at all

Regarding the instruction of an "expert" do be aware the courts permission is required before the report can be relied upon (CPR 35.4) so don't go and spend your money before obtaining the courts permission.
And for our knowledgeable friend CPR 35.4 (3A) specifically refers to small claims track so Part 35 DOES apply

The small claims track is designed for low cost claims and for Litigants in Person. The judge does (should) guide the trial and take into account the fact the LIP will only have a basic knowledge of the law. There is no need to over complicate matters, and as you go forward you will receive guidance which is comprehensible and accurate (I hope)

[hotmale]

Thanks des8, just wondering how about sendsing another letter to bank explaining obvious sign which mechanic mentioned related to blownup head gasket. Which will prove seriousness of the matter as until now all the interaction talks about coolant leak only. And letter to mention reconsider decision based on new facts and to save court time/expenses.

please let me know if you agree or letme know what ever you think is best I will follow that.

thanks

[des8]

you might as well try as there is nothing to lose other than a little time, and trying to be ultra reasonable it won't do you any harm if it ever gets to court

[hotmale]

Can you please advise what should I write or do you have some sort of template thanks

[des8]

Ok I'll draft something later.
In meantime have garage given you any idea of cost, assuming it is only the head gasket that has gone.
Have they done a compression test or a leak down test on the cylinders?
Have they tested the cooling system for hydrocarbons?
I suspect it is only a headgasket, but it could be something else eg cracked head

[hotmale]

Thanks, No he charges between £110 to £150 for these test alone and he confirmed its headgasket for sure and engine would be opened to access damage to i jectors/engine and replace gasket, he would also need to replace timing belt. If there is no damage to engine ir injectors the rough amount he quoted is around 1k.

thanks

[hotmale]

Can you please advise what should I write or do you have some sort of template thanks

Cheers pls let me knw if you create draft today i will forward that tommorow

[des8]

Apologies for delay, but a bit busy over weekends.

I'd be writing along the lines of "I am putting on hold initiating court action to allow you time to reconsider your position in view of further info. received from the garage.
They have confirmed that the head gasket has "blown" and needs replacing, and assuming there is no damage to the engine the cost will be in the region of £1000
To continue using the vehicle in its present condition will almost certainly cause more damage.

As per my rights under the Consumer Rights Act 2015 I am rejecting the vehicle as unsatisfactory and/or unfit for purpose.
I require you, as jointly and severally liable with the trader to remedy the fault(s).

If you fail to agree to my requirements within xx days I shall initiate court action without further notice.
Yrs

[hotmale]

Apologies for delay, but a bit busy over weekends.

I'd be writing along the lines of "I am putting on hold initiating court action to allow you time to reconsider your position in view of further info. received from the garage.
They have confirmed that the head gasket has "blown" and needs replacing, and assuming there is no damage to the engine the cost will be in the region of £1000
To continue using the vehicle in its present condition will almost certainly cause more damage.

As per my rights under the Consumer Rights Act 2015 I am rejecting the vehicle as unsatisfactory and/or unfit for purpose.
I require you, as jointly and severally liable with the trader to remedy the fault(s).

If you fail to agree to my requirements within xx days I shall initiate court action without further notice.
Yrs

Thanks |I've sent the letter with 14 days window fingers crossed thanks for your assistance will let you know if there is an update

[hotmale]

Hi I Have received reply from bank nothing new sticking to old story that I need to prove fault at point of sale by providing the diagnostic report, when I asked agent that issue details been provided and diagnostic test wont say that the fault was there in Jan-2018 as they will be done in present time, he had no clue what to say then and start repeating that I need to prove.
I’ve requested to send the deadlock letter to start the claim.

Now my question is do I need to send the letter with new amount as I will add legal costs on this letter and make this a pre-court letter or should I just start the county court action and I've requested car sale website to provide car advert details as I now have the call recording where agent admitted that seller mentioned about headgasket issue at point of sale and advert shows no such issues and this was never raised as well another lie from trader.

Can you pls also advise If court action is next what other detail do I need to provide, I am planning to do this online through small court claims.


Thanks.

[des8]

They have decided not to reconsider, so you can initiate court action.
I would suggest you post up your particulars of claim before sending them, so they can be tweaked if necessary

[hotmale]

Sorry what you meant by particulars do you mean evidence and checklist? And do I‘ve to create a letter for court with all the history? And what about precourt and legal fees when will I include these in the claim?

thanks