PRIVATE CAR SALE - NOT AS DESCRIBED & UNROADWORTHY

[steadyprogress]

Please excuse the long post... on 2/2/18 I purchased a Ford Focus from a private seller, advertisement at the end of the post. The day after we brought the car home the heating stopped working so checked the coolant level. It was completely empty so we refilled & noticed water leaking from underneath the car. There was an obvious leak as we were having to keep refilling. We explained the problem to our local Ford dealer & booked the car in to be repaired under warranty & for a full service. Whilst they had the car they called to say they would not be able to repair under warranty as the car had been fixed by “cowboys” & there were numerous other things wrong such as a “bent chassis, crack in steering mounting bracket. Under shields missing. Would need a body shop specialist (their body shop did not have necessary equipment) to repair as soon as possible. In our opinion this vehicle is dangerous.”

I messaged the seller straight away & told him I want him to collect the car & refund me the full purchase price. Of course he refused so I sent a pre court action letter by post & text detailing my rights which been breached as the car was not as described (no warranty & structural damage so changes from a Cat D (now N) to a Cat C (now S))
Surely this car is unroadworthy & contravenes the Road Traffic Act?
Can I just add that when we were viewing the car we asked him for any paperwork/photos relating to the write off repair but he said it was carried out before he purchased the vehicle in Feb 2016. When I text him expressing my wish to be refunded he contradicted this by saying he got the car repaired with his “local garage & local Ford specialist “. I asked for proof of this in my last letter to him.
How do I proceed now it is apparent the car is unroadworthy? Thanks for reading.

Metallic Grey Ford Focus ZetecFantastic car, Ford Focus 1.0 ECOBOOST. very fuel economy 17inch alloys, main dealer manufacturer warranty until 2018, £20 yearly tax, cheap insurance, 40 MPG average, Tyre pressure sensors, heated front and rear screen, CD player auxiliary Bluetooth, hands free phone, Air conditioning, Category D but been professionally repaired.

[Kati]

tagging des8 R0b xx

[des8]

Hi and Welcome.
As purchased privately and as you examined the vehicle before purchasing it you don't have many rights.
You are correct regarding it being an offence under the RTA to sell an unroadworthy vehicle, but in practice no one is going to do anything about that.
It just isn't viable to try a criminal prosecution for that offence (if there is one) under the circumstances you describe.

It really boils down to the actual condition of the vehicle against as described in the advert.
If the insurers had classed it as Category D, and if the seller has had it repaired professionally, he would have been describing the vehicle correctly.

Now that you know the vehicle suffered damage which should have classified it Cat C, doesn't automatically change the classification.
Have you checked it was classified Cat D?

The only dodgy part seems to be where he claimed the car was repaired before he purchased it, but then says later that he had it repaired.
If the car was repaired professionally, the seller may not have known the repairs were of a poor standard.
If you take it to court you will have to show on balance of probabilities that he gave you false misleading information.

[steadyprogress]

The car was written off in Sept 2015 & definitely categorised as D

[steadyprogress]

I tracked down the chap who owned the vehicle back in 2015. He is kindly sending me copies of the paperwork he has from the insurance assessors report. He says no chassis damage caused in the light accident he had.

[des8]

So it appears the vehicle was damaged in 2015, and categorised D write off and repaired.

Possibly damaged in a subsequent incident but not written off by insurers.
This MAY have been because no claim was made and repairs were arranged by your vendor.

Did you ask prior to purchasing the vehicle if it had been involved in any other accidents?
If not, he did not have to volunteer that information.

However the advert describes the car as "fantastic", (and when speaking to the vendor did he confirm the vehicle was in good condition?)
You may have cause under the Misrepresentation Act, on the basis the car was misrepresented to you, albeit perhaps (1) innocently in that the vendor was not aware of the damage or (2) negligently in that he should have been aware of the condition of the vehicle.
In the case of (2) he would have to show that he had reasonable grounds to believe his statement, and that he believed the facts represented were true.

Tagging R0b

[R0b]

Morning,

Sorry for the late post as I've not been around much (too busy!). I agree with entirely with what Des has said in that as it was a private sale, your rights are extremely limited. Your only recourse does seem to be an argument for misrepresentation in terms of what he described the car as being on the advert. Situations such as yours generally rest on the court making findings of fact i.e. listening to both sides and making a decision on who seems more credible and more likely story. Obviously if he claimed that car was repaired prior but then changed his story to after, that could be inferred by the court as not being a credible person.

The court will make a decision based on a balance of probabilities whether it is more likely than not that the seller mis-described the vehicle and/or whether he knew that it was unsafe, or there was at least some damage he was aware of and perhaps the reason for selling the car. You don't need to go for the jugular in civil claims rather you just need to tip the balance 51% in your favour. Think of it as both of you having the same credibility points at the beginning of a hearing and its you job to knock off those credibility points through any evidence you have to disclaim anything he says.

In short, as far as I can see, if he is refusing to refund you then your only recourse is to go to court but you should consider whether it is viable for you to do so. He may have already spent the money and may not have any assets.

[steadyprogress]

I’ve been successful in getting a CCJ issued against the guy I purchased the car from on 17th May (he didn’t respond to claim) and am in the process of escalating to enable enforcement. The car has been sat on my driveway since February & has no insurance as I was unable to insure without a valid MOT & due to the state of the car it would cost £5000+ to get the car in a passable condition! The V5 is still in his Ltd company name & would like to know if it would be a completely stupid idea to cancel the tax on the vehicle, park the vehicle on the road & return the key to him recorded delivery in a hope it will spur him into action?
Included in the judgement were my car hire costs but as this is dragging on so long we have further car hire charges which aren’t covered by the original judgement. Can I make a further claim?
Im close to the end of my tether with this situation so any advice to get this speeded up gratefully received.
Thanks

[R0b]

First of all, did you issue a claim against the trader in his own personal capacity or did you name the limited company? If the arrangement was between the limited co. and yourself then the trader would have every reason not to pay up because he was not personally a party to the contract. He could make an application to set the CCJ aside and potentially be awarded his costs of the application which is £255 and any other costs incidental to the application, though it is the discretion of the judge.

If it is sitting on your driveway on private land then you could cancel the tax and inform the DVLA online and putting the registered keeper information into his name. You could then write to him and tell him that he has 14 days to collect the car otherwise you will make arrangements for it to be sold at auction and any costs incurred by you are to be deducted from the proceeds of the sale.

You could also leave on a public highway but you still have a duty to look after the car whilst its in your possession. There can be a risk to this if the DVLA tow it away which they would have a right to do but the trader then wants to claim against you for allowing them to do that. My view is that if the vehicle is causing an obstruction and you've given sufficient notice for it to be collected, then the trader cannot complain.

If you want an example template on selling the car, take a look at the template letter notifying of intention to sell goods on the link below.

http://legalbeagles.info/forums/foru...t-of-templates

I don't think you can reclaim further hire charges ebcause that would be an abuse of process, you should have made an unspecified order for damages but that ends up costing you a fee of £10,000.

[des8]

Also if you leave it on the public highway you would need to keep it insured against third party liability, as the person responsible is the last one to drive it

[steadyprogress]

Thanks for the advice. He’s not a trader so claim was made against him & receipt of sale I have is also in his personal name. As the issues with the car arose before I had returned the relevant section of V5 to the DVLA the vehicle has never been registered in my name as he gave the entire V5 to me to complete when I paid him for the vehicle. Would I still be able to sell if not in my name?

[des8]

Selling a car registered in someone else's name can be difficult, but it is not illegal.

I would follow R0b 's advice and give him 14 days warning that you intend selling the car.
If no response, then transfer registration to your own name and then sell at auction.
Deduct your costs and then send him the balance.
Your legal position is covered by Torts(Interference with goods) Act 1977 (https://www.legislation.gov.uk/ukpga/1977/32)

[steadyprogress]

Since my last post I escalated the judgement to a High Court Writ, the enforcement guys visited his address 3 times during the summer but didn't get a reply so the CCJ remains unpaid. I sold the car at a third of the price it cost me & thought that was that! Today I've received a letter from a solicitor acting on behalf of the chap I purchased the car from asking for a copy of the original Claim Form. They claim their client does not live at the address the paperwork was sent to & have made an application to have the judgement set aside. My questions are, will the court want to see proof he did not actually live at the address at the time & shall I email a copy of the claim form? I'm pretty confident he was/is living at the address I wrote to him at as he responded to my recorded delivery letters via text. The enforcement company also did some checks prior to their visits.
Thanks in advance

[pt2537]

Since my last post I escalated the judgement to a High Court Writ, the enforcement guys visited his address 3 times during the summer but didn't get a reply so the CCJ remains unpaid. I sold the car at a third of the price it cost me & thought that was that! Today I've received a letter from a solicitor acting on behalf of the chap I purchased the car from asking for a copy of the original Claim Form. They claim their client does not live at the address the paperwork was sent to & have made an application to have the judgement set aside. My questions are, will the court want to see proof he did not actually live at the address at the time & shall I email a copy of the claim form? I'm pretty confident he was/is living at the address I wrote to him at as he responded to my recorded delivery letters via text. The enforcement company also did some checks prior to their visits.
Thanks in advance

CPR 13.2 may help him if you served on an address that he didnt live at because the time for filing an acknowledgment of service technically hasnt begun to run.

Have you had any contact with him where he said he has received the Claim? are there any texts ? you could be at risk here, and could be in difficulty if he can show the Court he hasnt had the chance to reply, you could also have to pay his legal costs too.

I think you will need evidence if you are going to oppose this, and i think you will need to lodge a witness statement exhibiting all of the evidence you have if you are going to fight this

[steadyprogress]

The address the claim form went to is the same address I visited when purchasing the car, where all correspondence was sent to & which he responded to, where the V5 was registered & the same address as detailed with Companies House for his directorship for his Limited Company.