Final Right to Reject – Dealer’s response confusing – please help

[des8]

Armchair diagnosis (always dodgy!) sounds like gear linkage worn just out of tolerance, but I would assume that was checked

[Dinoman]

Update….

Ok, so the dealer is standing firm in their decision not to except my rejection unless I agree to their unreasonable terms.

I do not feel that using a ADR service provided by the courts would be beneficial to me as they have stated that their offer would not change.

I’d be interested to know If I could bill them for the cost of car hire?, as the car I am currently using is borrowed and will have to be returned to its owner shortly, otherwise i will have to purchase a cheap run-about to get to work and back.

Also… when calculating my claim do I include any damages in the total? As my claim including damages would exceed 10k, and without damages I could reduce to just under 10k.

Your comments and advice would be greatly appreciated… thank you.


ME
Letter before action

Following our earlier correspondence regarding my rejection of the car under the CRA 2015.

Your offer to use the ADR service of The Retail Motor Industry Federation is declined as I do not believe they will be imperial. They are a body whose self-declared aim is to "represent the interests of operators in England, Wales, Northern Ireland and the Isle of Man providing sales and services to motorists and businesses."

If I do not receive your acceptance of my final right to reject within the next two weeks please note that it is my intention to initiate a court claim without further notice. The courts offer a mediation service which might be acceptable to both of us as fully independent.

Please note the car is kept on a public highway 24/7, therefor If the car remains uncollected after 24th February 2018 I will have to continue paying road tax and insurance In order for the car to remain ‘road legal’ and you will be charged £1.81per day as reimbursement.



DEALER
Thank you for your letter dated 10th February 2018, the contents of which have been noted.

With regards to your comments related to the ADR service of the Retail Motor Industry Federation, I can confirm that this service forms part of the CRA 2015 and is dealt with by the National Conciliation service, therefore I do not agree with your comments.

I have noted that your intention is to initiate a court claim and will be adding £1.81 per day to your claim in relation to road tax and insurance. I am fully aware that the courts offer a mediation service and if used in due course our offer will still be in line with what we have previously offered you.

Therefore unless you accept our previous offer which we feel is fair and reasonable we will not be collecting the vehicle by the 24th February 2019.

If you decide to go forward with your court claim then any correspondence received will be responded to accordingly.

[Dinoman]

Armchair diagnosis (always dodgy!) sounds like gear linkage worn just out of tolerance, but I would assume that was checked

Sorry for the delay, I've only just noticed that the thread has extended to a second page...

I can't be sure for certain if the gear linkage was inspected or not? as each time it was inspected they were unable to replicated the noise as the faulty component had not got hot enough in order to make the noise, and it's incredibly frustrating trying to explain that taking the car for a run-around the block is not going to be sufficient.

[des8]

So you are at the point where you have no choice but initiate court action, unless you are minded to accept their "generous" offer.

i would limit the claim to £10,000 to ensure it is allocated to the small claims track.
Although I have known claims in excess of £10000 be allocated to that track, it is unusual and if it is allocated fast track there are cost implications.

Feel free to post up your particulars of claim here for checking before lodging with the court if you wish

[Dinoman]

Hi All,

An update on my claim.

I would be very grateful if someone could give me some advice on drafting my ‘particulars of claim’. My claim is unusual as I will be requesting that a judge decide the amount of deduction for ‘fare use’ on a faulty car I have purchased. If I’m able to successfully argue that the dealer’s proposed deduction is excessive? Then my claim could set a president. I intend to claim the market value of the car plus damages (financial losses due to breach of contract) so I will set my claim at 7K-10K as the value of the car will depreciate by the time my case reaches court due to everyday use.

1. Do I include the above request on the particulars?
2. Do I state on the particulars that ADR has been unsuccessful?

Overview:
In Jan 2018 I brought a used car for £12300 which turned out to be a lemon. During the first 6 months of ownership the car suffered from four 4 faults, the latest fault being unidentifiable so I rejected the car in Dec 2018 under the CRA 2015 as it was not of satisfactory standard.

1. The dealer’s offer for remedy was declined by myself as I believed their terms were unreasonable and amounted to nothing less than entrapment (I have included a copy of their offer below).
2. I decided to seek resolution through an ADR service. Unfortunately the case became deadlocked as I declined their final offer and the case is now closed.

The findings of the ADR and the dealer’s final offer for settlement can be found below. Also, I have attached the entire ADR Transcript if of interest.

Thank you,


--------------------------------------------------------------------------------------------

Cargiant

Offer for Settlemen - January 2019

Thank you for your emails, the contents of which have been noted.

I apologise for the delay in responding to you. Our records indicate that you purchased the vehicle on the 6th January 2018 with a verified mileage reading of 32828 miles. I can also confirm that we paid your local Peugeot main dealer for the replacement clutch kit and flywheel in May 2018 and you then reported a clunking noise to us in June 2018.

Having reviewed your file I can see that you have been liaising with Peugeot and various other garages in relation to the clunking noise however although the noise can be heard, no full diagnostics have been carried out or any confirmation received from any garage /main dealer confirming that the fault is present or can be repaired.

I have also noted that you are requesting to reject the vehicle under the Consumer Rights Act 2015. As you should be aware the short term right to reject expires after 30 days and runs from the date of the transfer of ownership or possession / delivery of the vehicle. Where the consumer wishes to exercise his short term rights to reject, the burden of proof is on the consumer to prove there was a fault within the first 30 days. If other faults come to light after the first 30 days but within the first six months of delivery. In these circumstances the burden of proof is reversed and it will be up to the selling dealer to prove the fault would not have been present at delivery. Where faults arise after six months have elapsed, it is again up to the consumer to prove that a defect was there at the time of delivery.

However with the above in mind and taking in to account the mileage that you have covered in the vehicle since the date of purchase that being approximately 16,572 miles based upon the mileage reading of 49400 in December to resolve this matter we are in a position to offer one of the following options -

1 Return the vehicle back to Cargiant for the clunking noise to be investigated and if the fault is found repairs carried out free of charge and you keep the vehicle.

2) If the fault cannot be found or the vehicle cannot be repaired the we will assess the bodywork exterior / interior and taking in to account the mileage covered which will more than likely be around the 50,000 mark by now we will agree a favourable part exchange valuation of £8,000, bearing in mind that the true part exchange valuation should be around £7,000 to £7,500 at this moment in time or we can make a mileage deduction of 25 pence per mile that being 25p x 17,172 miles = £4293.00, making a valuation of £8,155.00.

Please note that above calculations are based upon the CRA 2015 whereby if a company accepts the rejection of a vehicle we are within our legal rights to charge the consumer for fair usage.

The above is open for acceptance for a period of 14 days from the date of this email. Please note that the more mileage that is covered in the vehicle the above figures will need to recalculated.

-----------------------------------------------------------------------------------------------

ADR Findings

ADR

Thank you both for your responses, received whilst I have been away.

Given the number of reports confirming the existence of the "noise", we do not need to question the existence of a condition that has so far evaded diagnosis, even from a Peugeot Master Technician. Equally, we do not know how or why this has developed.

In response to Mr H, I have watched the videos but these do not materially add or change anything.

What we do know is that the "noise" developed within 6 months of purchase and soon after the clutch and flywheel were replaced. I understand that Cargiant have not seen the vehicle since delivery and repairs have been carried out at their expense by third parties.

The vehicle passed the MOT on 20th October 2019 at 45725, so I have to conclude that it was considered safe and roadworthy at that time.
This process is concerned with achieving a mutually acceptable resolution to a dispute. The true legalities of this case may only be decided in a Court but in my independent opinion, if Cargiant are agreeing to repurchase the vehicle, they are entitled to make a deduction for usage, during the period the Claimant has owned the vehicle.

I do not know of any precedent which dictates what this rate of deduction should be, however from discussions I have had and advice taken in the past, it is likely that this would be in the region of 25p per mile.

I am submitting these comments and opinions as an independent conciliator, without favour to either party and in an effort to move this case forward.
The Claimant is fully entitled to accept or reject what I have had to say and leave this process, to pursue a more formal means of dispute resolution, if considered appropriate.

There are some individual expenses that Cargiant should consider reimbursing but firstly, I would ask the Claimant to refer what I have had to say and submit what he would now accept in settlement of his claim. Following that Mr H will be given the opportunity to submit Cargiant's final proposal for resolving this dispute.

If we can find a compromise, that is what we are looking to achieve. If not, then the case will be effectively deadlocked and I will have to request the NCS close the file.

With Regards


>


ME

Thank you for your response.

Having received legal advice prior to participating in the ADR, I am of the understanding that a mileage deduction of 25p per mile should not be defined as a true representation of ‘fair use’ especially when you take into consideration the following;

1. The average excess mileage charges for PCP and lease hire vehicle agreements
2. The car’s depreciation value since ownership
3. The market value of the car
4. A car that has been plagued with faults - two major, one minor & one unidentifiable
5. Heal dragging by Cargiant in taking over five weeks to authorise repairs to the car
6. Late upfront payment to RRG Peugeot resulting in returning from my holiday to an unrepaired car and having to wait a further three weeks until repairs commenced

Therefore I am not in agreement with this part of your summary and would look to be refunded the current market value of the car plus damages, however for convenience I would prefer to seek a satisfactory outcome via the ADR in order to resolve this dispute and therefore I would be prepared to accept less than I would expect to receive via the courts.

Consideration also needs to be given to the fact that I have added value to the car by having the wheels, hubs and callipers refurbished at a cost of £480, also four new matching premium tyres replaced in November 2018 at a cost of £612 (receipts available).

With the above in mind I would be willing to except no less than £9800.00 as full settlement (this also takes into consideration any additional mileage covered until collection by Cargiant should they accept).

The current mileage of car is 53065.

Kind regards,


>



CARGIANT

Further to my previous email I can confirm that I have reviewed this case / file and would like to point out the following –

I am not going to keep going around the houses on this one. I feel that we have made our stance quite clear and feel that we are entitled to charge for the usage at a cost of 25 pence per mile and this has always been the case and this information is readily available on our website.

I will not get drawn in to whether the charge is excessive taking in to account PCP, it is what it is. Please bear in mind that taking in to account the fact that the vehicle has now covered 53065 miles (20237 since purchase) this will equate to a deduction of £5,059.25 as of the 5^th June and will be ongoing.

I also agree that the alleged faults has evaded a full diagnostic check even from a Peugeot Master Technician. If you take in to account the fact that I originally offered to collect the vehicle quite some time ago of which Mr Barnes declined, however I do understand that he needs to do what he feels is right based upon his own opinion.

I have attached copies of Cap Hpi Valuation which is the system that we use to price vehicles and as you can see our offer was fair and reasonable. Therefore taking this in to account we will not be offering any more, however I will keep our offer £8000.00 open for acceptance for another 14 days from the date of this email, this will also be subject to viewing the vehicle as per the terms of our original offer.

I hope this clarifies our position.

[des8]

You claim the amount you require.
It is for the defendant then to justify his figure for usage, which you can challenge.
you do not invite the court to decide pre-hearing.

ADR negotiations not mentioned in POC

[Dinoman]

You claim the amount you require.
It is for the defendant then to justify his figure for usage, which you can challenge.
you do not invite the court to decide pre-hearing.

ADR negotiations not mentioned in POC

Thank you for the clarification Des8... very much appreciated

[Dinoman]

So you are at the point where you have no choice but initiate court action, unless you are minded to accept their "generous" offer.

i would limit the claim to £10,000 to ensure it is allocated to the small claims track.
Although I have known claims in excess of £10000 be allocated to that track, it is unusual and if it is allocated fast track there are cost implications.

Feel free to post up your particulars of claim here for checking before lodging with the court if you wish

Hi all,

This is my best attempt at POC (below). Please let me know if it's suitable and any revisions? Thank you



_________________________________________

PARTICULARS OF CLAIM
_________________________________________


1. At all material times the defendant was the seller of a Peugeot RCZ motor vehicle, registration number XXXXX (“the vehicle”), and the claimant was the buyer of said vehicle. At all material times the defendant was acting in the course of their business. The defendant’s business trades from, and the following events took place at, “XXXXXXXXXXX ”, XXXXXX is a trading name used by the defendant.

2. On 6^th January 2018 a contract was made between the seller and the buyer, such that, in return for consideration of £12,299.00, the seller agreed to transfer the vehicle in goods to the claimant.

3. The sum of £400.00 was paid as a deposit by the buyer to the seller by debit card during a visit to the seller’s premises, on the 28th December 2017, and the balance of £11.899 plus admin fees of £150, plus a debit card surcharge of £28.92 was paid at the defendant’s premises on the 6^th January 2018, when the claimant collected the vehicle.

4. The contract was at all material times subject to an implied condition that the goods would be of satisfactory quality, pursuant to The Consumer Rights Act 2015.

5. Between 11^th February 2018 and 21^st June 2018 (the first six month of ownership) the vehicle has been diagnosed as having four faults present, three of which have been identified and repaired at the defendant’s expense. Subsequent investigations over a six month period have failed to resolve the issue and the most recent fault with vehicle remains unidenfied and unrepaired.


PARTICULARS OF BREACH OF CONTRACT


Under the Consumer Rights Act 2015, it is implied that the good would be;

1. of satisfactory quality.

FINAL RIGHT TO REJECT

1. The defendant provided a repair, which fixed the original issue but the goods still do not meet the relevant requirements because a further fault has since appeared.
2. The claimant asked for a repair, but it has not been done in a reasonable time or without significant inconvenience to the claimant.
3. The defendant was unable to provide a further repair because it was impossible.

The defendant’s offer to resolve the claimant’s rejection of the vehicle is subject to unfair terms and conditions.

Accordingly the claimant claims;

(a) the sum of between £7,000.00 - £10,000.00
(b) additional costs of £709.75
(c) court costs of £445.00
(d) Interest pursuant to section 69 County Courts Act at such rate and for such periods as the court deems just.


STATEMENT OF TRUTH

I believe the facts stated in these Particulars of Claim are true.

Signed ………………………………………………

Dated

[R0b]

1. At all material times:-

a. the Defendant carried on business as a car dealership; and
b. the Claimant acted as a consumer.

2. By a written contract entered into on 28th December 2017, the Claimant agreed to purchase from the Defendant a Peugeot RCZ (vehicle registration XXXX) for the sum of £12,299.00 ("Sale Price"). The Sale Price was made up as follows:

a. a deposit of £400 (paid on 28th December 2017);
b. debit card surcharge of £28.92;
c. administration fee of £150; and
d. the final balance of £11,899 (paid on 6 January 2018).

3. Under the Consumer Rights Act 2015 ("CRA"), there were implied terms that the vehicle would be of satisfactory quality and fit for its intended purpose.

4. The vehicle was collected from the dealership on 6 January 2019 and soon after, the vehicle began to emit a number of faults. Between 11 February 2019 and 21 June 2018, the Defendant was diagnosed as having no less than four faults:

a. fault 1
b. fault 2
c. fault 3
d. fault 4

5. The Defendant exercised his right under Section 23 of the CRA (right to repair) and the Defendant successfully repaired the first three faults but was unable to repair the fourth fault ("Continuing Fault"). For a period of six months thereafter, the Defendant attempted but failed to diagnose and repair the Continuing Fault. As at today's date, the Continuing Fault remains unresolved.

6. In breach of contract and for the reasons mentioned in paragraphs 4 and 5, the vehicle was fit for the purpose nor was it of satisfactory quality.

7. By reason of the Defendant's breach of the agreement, the Claimant, pursuant to Section 24 of the CRA, was entitled to reject the goods and did so by a [letter/email/fax/telephone] dated [insert date]. Notwithstanding this rejection, the Defendant has refused to collect the vehicle or repay the sum of [insert amount], taking into account a deduction for use.

8. Alternatively, the Claimant has suffered loss and damage.

The Claimant therefore claims:

(a) the repayment of [insert amount].

(b) Alternative to (1), damages for breach of contract.

(c) interest.

(d) costs.

--------------------------------------------

Here's my very quick amend to yours, which isn't bad but think needs to specify the faults and what fault remains the problem. Feel free to use as much or as little - it's just a guide.

Just a point to note, if you claim an amount of money within a certain range, that is deemed to be an unspecified claim and the cost for issuing a claim is £10,000. I assume you don't want to pay that amount of money so you might want to put a specific figure on that (and keep whilst keeping it under the £10k mark otherwise you won't be caught by small claims and if you lose, costs are on the table).

You additional costs need to be specified and itemised. Currently it's too vague and if a court agrees, they can be struck out and you won't have the ability to recover.

[des8]

small corrections (I love to nit pick)
para 4 the vehicle (not the defendant!)was diagnosed ..........
para 6: "........ the vehicle was not fit for the purpose.........."

[Dinoman]

Here's my very quick amend to yours, which isn't bad but think needs to specify the faults and what fault remains the problem. Feel free to use as much or as little - it's just a guide.

Just a point to note, if you claim an amount of money within a certain range, that is deemed to be an unspecified claim and the cost for issuing a claim is £10,000. I assume you don't want to pay that amount of money so you might want to put a specific figure on that (and keep whilst keeping it under the £10k mark otherwise you won't be caught by small claims and if you lose, costs are on the table).

You additional costs need to be specified and itemised. Currently it's too vague and if a court agrees, they can be struck out and you won't have the ability to recover.

Thank you for taking the time to amend my POC… I will use it in its entirety as mine is a butchered example from the pre CRA era.

One issue I’m having is deciding on the claim amount?. When I rejected the car back in Dec 2018, I stopped using it. When the dealer refused to accept my rejection I reverted back to using It, as no refund = no money to buy a replacement car.

Because the car is in daily use, by the time my claim reaches court, the car’s value would have depreciated.

The market value of the car as of today’s date is £9300.00 and I intend to claim whatever the market value of the car is at the time of the hearing. So I’m not sure what amount I should put on the POC? Could you please advise.

Thank you

[R0b]

Thanks des8 for the corrections - I have also noticed that at the start of para. 5 it should read as the Claimant exercised his right, not the Defendant (take note Dinoman to re-read the POC as there are some mistakes).

Under normal circumstances, you would have been entitled to the market value as at the date of rejection. However, as you decided to continue making use of the car (and the dealership could argue trespass to goods if it so wished since you weren't authorised to continue using it) then deduction for use continues until such a time you stop using it. The reality is that you could have mitigated your losses by looking at purchasing a cheap second hand car to keep you going until the matter was resolved.

You could consider stating the market value as of today and if you do, it might be best adding in an extra paragrah (after 7 or 8?) to say something like, the Defendant has offered to repay X based on a deduction of use at 25 pence per mile. However, the Claimant contends that such a deduction is excessive and has based his claim around any deduction for using being at x pence per mile.

That way you could then argue that at the time of the hearing, the deduction should be further since you continued to use it up to that point, bearing in mind that you have a duty to take reasonable care and are liable for any problems with it in the meantime.

[Dinoman]

Thank you very much indeed R0B for the revisions and recommendations.

I was originally going to do as you suggested… buy a cheap run-a-round and invoice the defendant for continuing the insurance and tax on the car as I’d have to keep it on a public highway, but I decided that it would be more financially viable to continue using the car as I also needed to bring the value of my claim down (under 10k). I’ve always understood that by continuing to use the car, my claim will de-value and I’d have to continue spending on its upkeep.

Bringing my claim down below 10k is becoming harder than I thought… the darn lemon just doesn’t want to lose much value.

I made an error with my earlier quick valuation lookup by putting the millage at 64k instead of 54k.

So I’ve obtained 3 valuations form: Confused.com, Autotrader and The money Calculator.

I’ve now based the car’s valuation by adding the low and high value given by each of the above, then calculated the average. Then by adding all 3 averages together I obtained an overall average, so been able to achive a valuation of £10,307.00, so I will value my claim at £9,999.00.
However as the car has done 21k miles since I purchased it, should I base my pence per mile deduction on £10.307.00 or £9.999.00. A mileage deduction of 10.00ppm applies for the former and 11.80ppm for the latter based on the depreciation from the original purchase price of £12,476.

Any guidance would be greatly appreciated. Thank you

[Dinoman]

Feel free to post up your particulars of claim here for checking before lodging with the court if you wish

Hi,

I'm just about ready to submit my claim and i'd be very greatful if someone would give it the once over for me as i'm not sure if it's optimised?

There are two parts im not to sure on:

P7 "the Defendant has refused to collect the vehicle or repay the sum of £9960.33, taking into account a deduction for use."
I never had the opportunity to request a refund amount from the defendant back in Dec 2018, but my claim as of today's date is for: £9960.33, so should this stay as it is?


P9 (b) "Alternative to (1), damages for breach of contract"
Dose the above remain?

Thank you

-----------------------------------------------------------



1. At all material times:-

a. the Defendant carried on business as a car dealership; and
b. the Claimant acted as a consumer.

2. By a written contract entered into on 28th December 2017, the Claimant agreed to purchase from the Defendant a Peugeot RCZ Red Carbon (vehicle registration XXXX) for the sum of £12,476.92 ("Sale Price"). The Sale Price was made up as follows:

a. a deposit of £400 (paid on 28th December 2017);
b. debit card surcharge of £28.92;
c. administration fee of £149; and
d. the final balance of £12,076.92 (paid on 6 January 2018).

3. Under the Consumer Rights Act 2015 ("CRA"), there were implied terms that the vehicle would be of satisfactory quality and fit for its intended purpose.

4. The vehicle was collected from the dealership on 6 January 2019 and soon after, the vehicle began to emit a number of faults. Between 11 February 2019 and 21 June 2018, the Vehicle was diagnosed as having no less than four faults:

a. fault 1 – High pressure fuel pump failure / replacement required
b. fault 2 – Clutch and dual mass flywheel failure / replacement required
c. fault 3 – Ventilation system failure / repair required
d. fault 4 – Unidentifiable clunking noise when engaging gear

5. The Claimant exercised his right under Section 23 of the CRA (right to repair) and the Defendant successfully repaired the first three faults but was unable to repair the fourth fault ("Continuing Fault"). For a period of six months thereafter, the Defendant attempted but failed to diagnose and repair the Continuing Fault. As at today's date, the Continuing Fault remains unresolved.

6. In breach of contract and for the reasons mentioned in paragraphs 4 and 5, the vehicle was not fit for the purpose nor was it of satisfactory quality.

7. By reason of the Defendant's breach of the agreement, the Claimant, pursuant to Section 24 of the CRA, was entitled to reject the goods and did so by letter dated 27 December 2018. Notwithstanding this rejection, the Defendant has refused to collect the vehicle or repay the sum of £9960.33, taking into account a deduction for use.

8. The Defendant has offered to repay £8,155.00 based on a deduction of use at 25 pence per mile. However, the Claimant contends that such a deduction is excessive and has based his claim around any deduction for using being at 11.89 pence per mile.

9. Alternatively, the Claimant has suffered loss and damage.

The Claimant therefore claims:

(a) the repayment of £9960.33

(b) Alternative to (1), damages for breach of contract:

1. Loss of earnings - £300.69
2. Replacement spark plugs - £68.00
3. Loss of deposit - £50.00

(c) interest.

(d) costs.