Car Dealer - 30 Day Right to Reject

[Mitche11]

As I said no real problem, but the evidence comes later by way of your witness statement
Did you tick the box to say you were sending more detailed particulars?

Suggest you start drafting your witness statement now so it can be fine tuned and you don't have to rush it

I did tick the box saying I was sending more detailed particulars.

I have already started drafting my witness statement. I have evidence for the facts I have given in my witness statement but I was wondering if I am able to use evidence from information I have found on the internet to back up my claim?

[des8]

"information found on the internet" isn't evidence.
It might have pointed you in the direction to take to substantiate your claim, but it won't help prove your claim

[Mitche11]

"information found on the internet" isn't evidence.
It might have pointed you in the direction to take to substantiate your claim, but it won't help prove your claim

Thank you DES8 for clarifying.

I have drafted my Witness Statement, would you be so kind and check it over for me please?

IN THE XXX COUNTY COURT
CLAIM NO: XXXXX
BETWEEN:
XXXXX (Claimant)
vs
XXXXXX (Defendant)

WITNESS STATEMENT

REF: XXXX

I, xxxxxxxxxxx am the claimant in this claim. The facts and matters contained in this Witness Statement are within my own knowledge. Where I refer to facts that are not within my own knowledge I will give the source of my knowledge of those facts.

1. On the 18th May 2019 it was verbally agreed prior to purchase, that the defendant would fit new tyres to the rear. Claimant paid £500 deposit and signed the deposit agreement that stated two tyres.
2. Claimant collected the vehicle on the 21st May 2019, signed the purchase invoice and paid the remaining balance by bank transfer.
3. Claimant booked the vehicle with a 4x4 specialist on 12th June 2019 because of a whining noise coming from the rear whilst driving. The 4x4 specialist mechanic took the vehicle for a test drive, upon returning from the test drive the mechanic told the Claimant that the noise is coming from the differential and that mismatch tyres on the rear of the vehicle can cause damage to the drivetrain. The Defendant had fitted different tread pattern tyres to the rear and one of them was directional.
4. Claimant sent the Defendant an email on the 13 June 2019 explaining the situation with regards to the whining noise coming from the rear of the vehicle.
5. The Defendant responded by email on the 14 June 2019 stating that they have all legal rights to have first hand look at the vehicle and arrange repairs if needed, also for Claimant to bring the vehicle back to the Defendant to look at.
6. Claimant responded by email to the Defendant on 14 June 2019 stating that she would not take the vehicle back because she did not want to cause more damage to the vehicle driving it with mismatch tyres.
7. The Defendant responded by email on 15 June 2019 stating they can arrange a recovery truck to collect the vehicle. Claimant did not respond to the Defendant to agree for the vehicle to be collected.
8. Claimant phoned the Consumer Helpline and was given the advise that she could reject the vehicle under The Consumer Rights Act 2015, Short Term Rights to Reject and that because the fault is within 30 days of purchase of the vehicle, the Claimant does not have to allow the Defendant a chance to repair.
9. On the 17 June 2019 Claimant sent a letter via email to the Defendant exercising her Short Term Right to Reject.
10. The Defendant sent a response to the Short Term Right to Reject letter on the 17 June 2019 stating that there is no agreement that we will replace with brand new tyres and specific make also that before you are claiming for a refund you have to give us a chance to fix a vehicle if there is something to fix.
11. Claimant sent an email on the 18 June 2019 to the Defendant stating that she was booking a vehicle inspection through The Motor Ombudsman. The Claimant was unable to book an inspection through The Motor Ombudsman because the Defendant is not part of an ADR scheme.
12. The Defendant sent the Claimant an email on 19 June 2019 stating that they have legal right to have a chance to fix the vehicle.
13. Upon the Defendant stating in their email dated 17 June 2019 that there is no agreement that they would replace with new tyres, the Claimant phoned and spoke to Tyresafe on 20 June 2019 and sent an email with photos of the rear tyres. Tyresafe replied stating that there is no ‘Part Worn’ stamp visible on them and therefore they do not meet The Motor Vehicle Tyres (Safety) Regulations 1994 (reg.7) part of The Consumer Protection Act.
14. Claimant sent a letter before court on 21 June 2019 by 1st class signed post to the Defendant. The Defendant did not respond to the letter within the 30 days given.
15. Claimant sent an email on 5th July 2019 to the defendant stating the vehicle is now ready for collection.
16. The Defendant sent an email on the 16 July 2019 stating they have arranged Vehicle collection for Friday 19 July 2019.
17. The Defendant sent an email on 18 July 2019 stating that the vehicle will be collected by xxxxxxxx and inspected by xxxxxxxxx.
18. The Defendant sent an email on 31 July 2019 stating that the vehicle was free from faults and that they had also fitted 4 brand new tyres.
19. Claimant sent a response on 31 July 2019 by email stating that she did not request or agree to a repair or replacement and requested a refund within 7 days.
20. The Defendant sent a response on 1 August 2019 stating that the noise was coming from the tyres and they replaced them with 4 brand new ones, also that the Claimant had 7 days to collect the vehicle and if not collected she would be issued a storage charge.
21. Claimant has not collected the vehicle and the Defendant has not issued a refund.

I appreciate the help and advise you have given me, this situation has been so stressful and I don't know how I would've coped without your help.

[des8]

Bit busy at the mo' so will respond in a day or two

[Amethyst]

Just a couple minor bits as a start before Des has a look xxx


At points where you mention a letter / email / document / photo you want to put ( Exhibit A /B/C etc) and include the document labelled such with the statement.

Where you mention 4x4 specialist put their details.

Explain who Tyresafe are.

Between 17 and 18 add in that they collected the car by what method etc

put how you paid.

Bring more in from your particulars of claim, remember to say what the outcome you want is and why you are entitled to that resolution.

-

[des8]

Apologies for delay.
Following Amethyst's points I would point out your WS should probably start;
1. on 18.05.2019 I agreed to purchase from the defendant vehicle Make , model & reg no for £xx, making a deposit of £500 and signing the agreement
(exhibit 1)
2. It was agreed that the defendant would replace the rear tyres with new as noted on the purchase agreement (exhibit 1)
3 .on 21.05 2019 I paid balance of purchase price by bank transfer (exhibit 2)
4. during the next two weeks ! noticed a whining noise coming from the rear whilst driving.
5. on 12.06.2019 I arranged for a 4x4 specialist mechanic (?who?company?) to test drive the vehicle.
6; He reported the noise was coming from the differential and that mismatch tyres fitted by the defendant on the rear of the vehicle can cause damage to the drivetrain. (

and so on..
You have the time to redraft your WS, so try tidying it up.
This will help you if it goes to court as you will need to know your case intimately
If you can do that post it up so we can check it for you.

Did you get a written report from the 4x4 specialist which you can include as an exhibit?
Was the directional tyre fitted to the wrong side of the vehicle?

As this is your witness statement it is acceptable (and makes more sense) to use the first person pronoun "I"

[Mitche11]

Thank you AMETHYST and DES8.

On the deposit agreement the car dealer noted two tyres but did not state new or part worn, it was verbally agreed new so thats why I signed the deposit agreement.

The directional tyre was fitted to the rear and the arrow was pointed the was pointing to the front of the vehicle.

I did not get a written report from the 4x4 specialist because to be able to pinpoint the exact fault with the differential it would need to be taken apart and when put back together it would be classed as a repair. I sent this email to the 4x4 specialist:

I brought my xxxxxxxxxxxxx into you on Wednesday 12th June 2019 because I had a noise coming from the rear, one of your mechanics took it for a test drive and confirmed the noise was coming from the differential and that it was more than likely the bearings. My vehicle has different makes of tyres and treads on the rear axle and a different make and tread on the front axle, all together my vehicle has 3 different makes and treads of tyres, I understand that this can cause damage to the diff.

The dealer I bought the car from does not believe any of the above because I only have proof verbally. Would it be possible for you to email me to confirm the above?

The 4x4 specialist reply:

Yes, I can confirm fitting odd tyres which are possibly at different stages of wear or just different brands/patterns can cause added stress on the drivetrain which can lead to, or exaggerate the common failure of the rear diff bearings.

I did phone another 4x4 Specialist to get advise but not sure if I can put this in my WS? They sent me an email with the following:

Further to our telephone conversation I would like to clarify the consequences of using mismatched tyres on a Freelander 2.

Because the Freelander 2 is an active on demand 4x4 system it is imperative that all wheels turn at the same rate. The system determines when it needs to engage the 4x4 by assessing if one or more of the wheels are slipping. Hence, if one or more of the wheels are turning at a faster rate than the remaining ones the system will engage the 4x4, even if you are doing 60mph on a straight road, and this will have the consequence of putting a strain along the drivetrain. This strain will eventually cause one of the drivetrain units to break, and, on many occasions, we have seen it damage the entire drivetrain, rear differential, Haldex active-on-demand coupling, power transfer unit and the gearbox.

In order to avoid such damage you need to make sure all your tyres are:

- the same make (we have seen significant differences between the rolling radius of two tyres which are the same size but different makes);

- the same model (when the tread pattern of the tyres are different this can cause a significant difference to the rolling radius of the tyre, we have known two tyres of the same make and size but different models have significantly different rolling radius');

- the same size;

- the same tread depth remaining - having two tyres which are almost fully worn fitted with two new tyres causes enough of a difference in the rolling radius to damage the drivetrain;

- the same air pressure - we have often seen damage caused by a Freelander having a slow puncture.

This is in line with Land Rovers advice to always change all four tyres at the same time on the Freelander 2.

In approximately 99% of all the rear differential damage we have seen on the Freelander 2 the cause can be traced to a mismatch in tyres.

I found a company online called Lawgistics they have some very good info on their website about part worn tyres stating that with the possibility that someone dies and it is the fault of the tyre, or the car dealer have bought 'substandard' part worn, you the trader could face manslaughter charges. Initially as the retailer you are first in the firing line and they also state on one of their articles about getting the wording right that replacement items are assumed to be new unless agreed otherwise. I did phone my insurance company and they told me my insurance would have been void from the moment I drove the vehicle off the forecourt as the vehicle had illegal part worn tyres.

Can I use any of the above in my WS?

[des8]

Yes..you do it by stating "On dd mm yy I received email (exhibit no.xx) from XYZ clarifying the consequences of using mismatched tyres on a Freelander 2
There is no need to put the full text in the witness statement itself a it will be attached as an exhibit

I wouldn't be quoting lawgistic as an authority though

[Mitche11]

Here is my revised WS:

CLAIM NO.

IN THE XXX COUNTY COURT

BETWEEN:

XXXXX (Claimant)

and

XXXXXX (Defendant)

WITNESS STATEMENT OF XXXXXXXXXXXXX

I, XXXXXXXXXX of XXXXXXXXXXXX am the claimant in this claim. The facts and matters contained in this Witness Statement are within my own knowledge. Where I refer to facts that are not within my own knowledge I will give the source of my knowledge of those facts.

1. On the 18th May 2019 I agreed to purchase from the defendant a Land Rover Freelander 2, registration no. XXXXXXX for £5,800.00. It was verbally agreed prior to me signing the deposit agreement that the defendant would fit new tyres to the rear. I, paid £500 deposit and signed the deposit agreement that stated two tyres. (Exhibit 1)
2. On the 21st May 2019 I collected the vehicle, signed the purchase invoice and paid the balance of the purchase price by bank transfer. (Exhibit 2)
3. During the next two weeks I noticed a whining noise coming from the rear of the vehicle whilst driving.
4. On the 12th June 2019 I arranged for XXXXXXXX who are a specialist 4x4 garage to test drive the vehicle.
5. Mechanic XXXXXXX of XXXXXXXX reported the noise was coming from the differential and that mismatch tyres fitted by the defendant on the rear of the vehicle can cause damage to the drivetrain. (Exhibit 3)
6. On the 13th June 2019 I sent the defendant an email to inform them of the fault with the differential. (Exhibit 4)
7. The defendant responded by email on the 14th June 2019 stating that they have all legal rights to have first hand look at the vehicle and arrange repairs if needed, also for me to bring the vehicle back to the defendant to look at. (Exhibit 5)
8. On the 14th June 2019 I responded by email to the defendant stating that I would not take the vehicle back because I did not want to cause more damage to the vehicle driving it with mismatch tyres. (Exhibit 6)
9. The defendant responded by email on the 15th June 2019 stating they can arrange a recovery truck to collect the vehicle. I did not respond to the defendant to agree for the vehicle to be collected. (Exhibit 7)
10. On the 17th June 2019 I phoned the Consumer Helpline and was given the advise that I could reject the vehicle under The Consumer Rights Act 2015, Short Term Rights to Reject and that because the fault is within 30 days of purchase of the vehicle, the consumer does not have to allow the trader a chance to repair.
11. On the 17th June 2019 I sent a letter via email to the defendant exercising my Short Term Right to Reject. (Exhibit 8)
12. The defendant sent a response to the Short Term Right to Reject letter on the 17 June 2019 stating that there is no agreement that we will replace with brand new tyres and specific make also that before you are claiming for a refund you have to give us a chance to fix a vehicle if there is something to fix. (Exhibit 9)
13. On the 18th June 2019 I phoned the Motor Ombudsman to get advise and also about having the vehicle inspected, they referred me to DEKRA.
14. On the 18th June 2019 I phoned XXXXXXXXXX for advice on the differential fault, Sue sent me an email clarifying the consequences of using mismatch tyres on a Freelander 2. (Exhibit 10)
15. On the 18th June 2019 I sent an email to the defendant stating that I was booking a vehicle inspection through The Motor Ombudsman. (Exhibit 11)
16. On the 18th June 2019 I phoned DEKRA but they were unable to do a vehicle inspection because the defendant is not part of an ADR scheme.
17. The defendant sent me an email on the 19th June 2019 stating that they have a legal right to have a chance to fix and to give them permission to collect the vehicle for inspection, also that they had spoke to XXXXXX from XXXXXXXX. (Exhibit 12)
18. On the19th June 2019 I sent an email to the defendant stating that I have lost all trust in them. I was suspicious of them taking the vehicle to inspect because they kept stating that they have a legal right to have a chance of fixing the vehicle, which I was not in agreement with as I had exercised my Short Term Right to Reject, also I needed more time to get advise and information on the matter and therefore I did not respond to the defendant to collect the vehicle at this time. (Exhibit 13)
19. The defendant did not respond to my email dated the 19th June 2019.
20. On the 20th June 2019 I phoned Tyresafe who are a UK charity that work closely with Trading Standards and other commercial and government organisations to raise awareness of the importance of correct tyre maintenance and the dangers of defective and illegal tyres. After speaking to XXXXXXXX at Tyresafe I sent him photos of the rear tyres on the vehicle via email. (Exhibit 14)
21. On the 20th June 2019 I phoned Hastings Direct who were my vehicle insurance company at the time, I asked them if I would be insured with illegal part worn tyres that the defendant had fitted to the vehicle, I was told that my insurance would be invalidated.
22. On the 21st June 2019 I received an email from XXXXXXXX at Tyresafe stating that there is no ‘Part Worn’ stamp visible on them and therefore they do not meet The Motor Vehicle Tyres (Safety) Regulations 1994 (reg.7) part of The Consumer Protection Act. (Exhibit 15)
23. Under The Road Traffic Act 1988 the defendant has sold me an unsafe and unroadworthy vehicle because they fitted part worn tyres to the rear of the vehicle that do not meet The Motor Vehicle Tyres (Safety) Regulations 1994 (reg.7) part of The Consumer Protection Act.
24. On the 21st June 2019 I sent a letter before court to the defendant by 1st class signed post. (Exhibit 16)
25. The defendant received the letter before court on the 22nd June 2019 and was signed for by XXXXXXX. (Exhibit 17)
26. The defendant did not respond to the letter before court dated 21st June 2019.
27. On the 25th June 2019 I SORN the vehicle as it was not being driven and had not been driven since the 14th June 2019. (Exhibit 18)
28. I sent an email on the 5th July 2019 to the defendant stating the vehicle is now ready for collection. (Exhibit 19)
29. The Defendant sent an email on the 16th July 2019 stating they have arranged Vehicle collection for Friday 19th July 2019. (Exhibit 20)
30. The defendant sent an email on 18th July 2019 stating that the vehicle will be collected Friday evening and that the driver will be in touch. (Exhibit 21)
31. On the 18th July 2019 I sent the defendant an email requesting who was collecting the vehicle and the phone number of the company. (Exhibit 22)
32. The defendant responded stating that XXXXXXXX would be collecting the vehicle and XXXXXXXX would be inspecting the vehicle. (Exhibit 23)
33. On the 19th July 2019 my husband received a phone call at work from XXXXXXXX saying that they would be collecting the vehicle at 7pm this evening. (Exhibit 24)
34. On the 19th July 2019 I sent a text to XXXXXXXXX at 7.30pm asking where their driver was as he was late. XXXXXXXX responded to my text stating driver is on his way. (Exhibit 25)
35. XXXXXXXXX arrived in a single vehicle transporter to collect the vehicle at approximately 8.45pm. XXXXXXXXXX had no paperwork or company card and the vehicle transporter did not have any sign writing so I typed up paperwork and got the driver to sign. (Exhibit 26)
36. On the 28th July I sent an email to the defendant. (Exhibit 27)
37. The Defendant sent an email on the 31st July 2019 stating that the vehicle was free from faults and that they have also fitted 4 brand new tyres. (Exhibit 28)
38. On the 31st July 2019 I sent a response by email stating that I did not request or agree to a repair or replacement and requested a refund within 7 days. (Exhibit 29)
39. The Defendant sent a response by email on the 1st August 2019 stating that the noise was coming from the tyres and they have replaced them with 4 brand new ones, also that I had 7 days to collect the vehicle and if not collected I would be issued a storage charge. (Exhibit 30)
40. On the 1st August 2019 I responded to the defendant by email and stated that if I did not receive a refund within 7 days I would initiate court proceedings, I also sent this in a letter by 1st class signed post. (Exhibit 31)
41. The defendant received the letter on the 2nd August 2019 and was signed for by XXXXXXXXX. (Exhibit 32)
42. On the 6th August 2019 I sent an email to the defendantmaking a last attempt to try and resolve the matter. (Exhibit 33)
43. The defendant sent an email on the 6th August 2019 stating that they will not refund and that I was to collect the vehicle. (Exhibit 34)
44. On the 6th August 2019 I sent a response to the defendant stating that I would not be collecting the vehicle. (Exhibit 35)

Accordingly, I claim the sum of £5,800.00
Court Costs of £410.00
Interest pursuant to section 69 of the County Courts Act at such rate and for such periods as the court deems just.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.


Signed: …………………………………………

Date:

I have my telephone bill of dates and times that I phoned various companies such as Consumer Helpline, DEKRA and Tyresafe, should I include this as evidence?

[des8]

You can delete paras 10; 13;15;16;19;;26:34

Para 9 delete "I did not respond to the defendant to agree for the vehicle to be collected."

I would merge paras 20 & 22:
On the 21st June 2019 I received an email from XXXXXXXX at Tyresafe (UK charity that work closely with Trading Standards and other government organisations) stating that there is no ‘Part Worn’ stamp visible on the rear tyres of which I had sent photos,and therefore they do not meet The Motor Vehicle Tyres (Safety) Regulations 1994 (reg.7) part of The Consumer Protection Act. (Exhibit 15)


Delete: " Accordingly, I claim the sum of £5,800.00
Court Costs of £410.00
Interest pursuant to section 69 of the County Courts Act at such rate and for such periods as the court deems just."
That is part of your claim, not your WS

Final para:
On 08.08.2019 claim issued. (do not include a copy of claim as exhibit)


Note that
Format wise,it is preferable your statement should be printed on a single side of A4 paper, and have a left margin of 35 mm.
The top left hand corner should give the name of the court where the case is to be heard. The top right hand corner should state:

• The party for whom the witness statement has been prepared;
• The date on which the witness statement was made; and,
• The claim number of the case.

The name of the case should then be written in the centre of the page on consecutive lines, as follows:

• The name of the Claimant, Mitche11, with the word "Claimant" written in the right hand margin;
• The word "and";
• The name of the Defendant, Dodgy trader, with the word "Defendant" written in the right hand margin.

Finally the witness statement's title should appear, centred on the page, as follows:

• WITNESS STATEMENT OF Mitche11

Use a font size 12 and 1.5 line spacing
One side of the paper only and number pages
put claim number at top of each page

AND FINALLY>>>>
on receipt of the defendant's defence you might need to tweak you WS, so don't rush to print yet!

[Mitche11]

Thank you DES8. Just a waiting game now. On receipt of the defendant's defence I shall go through the witness statement again and label the exhibits accordingly. I will update when I know my next step.

[Mitche11]

UPDATE: Defendant did not respond to the claim so I requested judgement which was issued on the 29th August 2019.

How long do I give the defendant to pay and what do I do if they ignore the judgement and do not pay? They have the vehicle but I am still the owner until they pay the refund, how do I stand if they are still refusing to pay?

[des8]

Congratulations, but now to get paid!

I don't suppose you yet have a copy of the judgement as it was only issued yesterday!

When you have the written order send a copy to the defendant (this will prevent him arguing he never received the judgement) requesting payment within
say 2 weeks

[Mitche11]

Thank you DES8. I sent a copy of the Judgement on 2nd September 2019 giving the defendant 14 days to pay. If they do not pay within 14 days what is my next step? I have no vehicle and they have not paid the judgement, I have a feeling they are not going to pay within 14 days, this is an absolute nightmare, it's unfair that they can do this!

[des8]

Well if they don't pay I would transfer the judgement to the High Court for enforcement, but it's early days yet.

Unfortunately these things take time and the claimants suffer