Problems with used car after 30 days

[rgn2012]

I apologise as there are already so many threads on this subject but each case seems so individual it is hard to figure out if I’ve got things right! I will try to keep the description of the problem as concise as possible:

On 4th July we purchsed a second hand Mini Cooper (2007 reg with just under 73,000 miles) for £3995.00 from a local dealer. On inspection of the car at the dealer we found the air con wasn’t working, the radio interface was broken and there was a bit of cosmetic damage to one of the sun visors all of which we pointed out to the dealer at the time and they agreed they would arrange for it to be fixed at a later date if we bought the car (incidentally these things were all fixed). We paid via bank transfer and took the car home, as soon as we parked it up in our driveway we noticed water was pouring out from underneath the car, I got in contact with the dealer immediately who asked us to take it to a garage that does the work for them the next morning and it would be looked at along with the other repairs. It turned out the car had a coolant leak from the thermostat housing and this was fixed as we were promised. We picked the car back up from the garage on the 10th July.
Since then the car has driven ok but I had always felt the clutch had been a bit tricky and there was a bit of a clattering noise from under the car at times. I had put this down to us getting used to the new feel of the car and also it being an older car it would maybe have a few small noises as it really wasn’t very noticeable a lot of the time.
In the last week the noise has become horrendous and a significant scraping noise started when changing gears. We got it looked at yesterday by a garage we know well and trust and they have said the clutch and dual mass flywheel are gone and need replacing at a cost of £1188.00. Bearing in mind at this stage it had only been 34 days since we got the car back from the original repairs and we had been away for 7 days of that, we have barely covered 500 miles since we got the car and have taken great care of it in that time. He told me that it’s pretty much impossible for us to have caused this damage in the amount of time we have had/miles we have driven the car, more than likely previous owner knew about the damage and didn’t want to pay out for repairs so got rid of the car.
I have gone back to the dealer about this and am getting nowhere. I have explained the situation to them and initially they didn’t want to accept any responsibility. Then they came back and said they wouldn’t normally do it under their warranty but in this case they will carry out the work if we pay them the excess fees (£395.00). I declined this and have said I would like to get the repair done at the garage we trust and expect them to pay the cost in full, I said I don’t feel this is unreasonable as we now own the car and this is a second attempt at repairs on it in less than 40 days so I think we should be able to choose where the repairs are done. They countered again saying they will repair it for free but only if they can do it at the garage they deal with, and have flat out refused to even entertain our rejection of the car.
I spoke to citizens advice this morning who advised me that because the car has already had a repair we can exercise our final right to reject and don’t need to accept their offer of a repair any more? They said it didn’t matter that the two faults were with different things and that it didn’t matter that it is the clutch that has gone because it would be assumed as being in bad condition at time of sale. They also told me it wouldn’t be unreasonable to ask for repairs to be carried out somewhere of our choice.
I have tried to reiterate to the dealer that we are complaining to him under consumer law and not trying to get something done under warranty that wouldn’t normally be done under warranty, but he has come back saying he has discussed with their legal people and that they have a right to repair and we have no right to reject as it’s a fault that has developed since we got the car. I have stated to him that as we are within six months the onus is on him to prove the fault wasn’t there when we purchased and he is trying to say that it’s a wear and tear item so we ought to expect it to be worn and as such they would be doing us a favour by replacing it free of charge. I replied to this that in the advert it was stated as ‘great condition’ and ‘drives perfectly’ yet this hasn’t been the case from day one so what were actually disputing is that we have been sold goods of unsatisfactory quality and not as described yet he is telling me this is not the case and we have no cover from the consumer rights/sales of goods act.
What I am basically trying to establish is whether citizens advice gave me the correct information for definite before I take this further. They advised me if I continue to get nowhere with this to send a letter before court which I will do if the dealer continues to decline what we are asking. My last contact with them I have said that maybe we could come to some sort of agreement whereby they pay most of the cost to the garage we want to carry out the work but if not then we will want to reject the car, and if they don’t agree to this then could they let me know their complaints procedure so I can start this.

Any advice on the matter would be much appreciated as I just want to know where I stand before I do end up taking it further.
Thanks in advance.

[des8]

Hi and welcome
Citizen Advice are correct in that after one attempt to repair the consumer has the right to reject.
Consumer Rights Act 2015 Sec 24 (5) states:
"A consumer who has the right to a price reduction and the final right to reject may only exercise [it if] one (not both), and may only do so in one of these situations—
(a)after one repair or one replacement, the goods do not conform to the contract;

I have italicised the relevant part.
It is also borne out by the explanatory notes which accompany the Act http://www.legislation.gov.uk/ukpga/...sion/3/1/3/4/6
Para 136 applies

[rgn2012]

Hi,

Thank you for your response. I have already told the dealer this is what is stated regarding their right to repair but they have said they have consulted with lawgistics (?) who they are members of and they have informed them otherwise. I had a look at the consumer rights act earlier and thought that was what it meant however wanted to be sure as I’ve been reading so much today it’s all become more and more confusing and seems to be a few grey areas or at least areas that a dealer will try and use to get out of taking responsibility.

I am mostly worried that if the dispute did end up going to small claims would it be considered that the clutch failure in such a short period of time would it be deemed a fault worthy of rejection or would it be looked upon as a fair expectation for a car of this age and mileage due to wear and tear (which is what the dealer is saying)? I understand the car is second hand but Minis are on the slightly higher quality and more expensive side when it comes to second hand cars of similar size etc, we paid them a good price on the basis of it being advertised/sold in ‘great condition’ with a full service history, and I feel that looking at having to spend over £1000 on a car we bought only a month ago in order to now make it fit for purpose is not at all acceptable.

The dealer has replied again since my initial post and said he doesn’t understand why we want the repairs carried out somewhere we have chosen and why we have lost faith in them to arrange the repairs, my reasoning is this is not a standard car it is a cooper sport model and therefore I would expect the parts used to repair it to be new, of a high quality and manufacturer approved. I don’t believe that I can trust this to be the case unless the repairs are carried out by somewhere we know is reputable and not somewhere that the dealer clearly has links with and will get it done pretty cheaply - I feel it is no coincidence that the name of the owner of the garage they use for repairs was also on the keyring for the car when we bought it but I will say no more on that matter.. If they were indeed obtaining the same quality parts that our garage has quoted for then my offer of covering half the labour cost while they cover parts and the rest of the labour would surely not render them that much more out of pocket than the trade repair prices he assures me are significantly less than what I was asking for.

Anyway I imagine I will now spend the day sorting out a letter before action and getting it sent over via recorded delivery!

[des8]

You're welcomed to post up your letter before mailing if you want it checked.

No need to send the letter "signed for" as first class with a free certificate of posting from post office is sufficient

[rgn2012]

Thanks for the advice.

What are your thoughts on the clutch failing in such a short space of time? We are being told by the dealer we should expect such failings in a car of this age/mileage as the clutch would be worn at time of sale and therefore are not eligible to reject it as it’s wear and tear, and that basically they’d be going above and beyond by repairing it for us at this stage.

He has said to us that because we haven’t reported the clutch as an issue before now that we haven’t a leg to stand on, and that as it was driving ‘perfectly’ and ‘in good condition’ at the time of sale that the fault cannot have been present. He has himself referred to the clutch failure as a fault so has contradicted himself there, am I right in thinking that there is no way of him proving that the fault was not present when we bought it?

(As it happens I actually have video of the noise of the clutch the day we picked it up, it just wasn’t obvious to someone with little mechanical knowledge what it could have indicated, so I do have proof it was already deteriorating but he will say I never mentioned this to them at the time - I put it down to minor noises you might expect with older cars)

I am going to send one final email detailing my stance including references to the relevant parts of the consumer rights act before I send the letter.

[des8]

I certainly wouldn't expect a clutch to fail so soon after purchase.
As you first brought up the matter after the first 30 days it is deemed that the fault was present when you purchased the vehicle.
It is for the dealer to prove it was not there.
How he can say the clutch was fine at time of sale but it has deteriorated through wear & tear of your 500 miles is beyond comprehension.

I wouldn't bother with the email..save your energy 'cos this guy doesn't seem to be one to give in easily!

[rgn2012]

Thanks for your input it is most helpful.

I know! I feel we are going to have to make it clear we are not just bluffing our way along on this one before we will get anywhere. I have emailed anyway to give him one last chance to agree to partially footing bill for repairs at our garage but have maintained that actually it us who are being reasonable by offering this option.

We shall see what the response to that is!

[rgn2012]

Have written a letter, it's headed with addresses and today's date etc but content is as follows:




Letter before action

Dear Sir or Madam,

Reference: Failure to resolve issue pertaining to breach of contract of sale of goods (MINI Cooper S, registration **** ***) under Consumer Rights Act 2015.

As it has not been possible to settle the above matter amicably following extensive correspondence via email, and it is apparent that court action may be necessary, I write in compliance with the Practice Direction on Pre-Action Conduct detailing the facts as follows:

On the evening of 4^th July 2019 we came to view a car advertised by you, a MINI Cooper S, registration year 2007, mileage advertised as 72,000. After a brief test drive in heavy traffic in the roads around the dealership we couldn’t place any obvious fault with the drive of the car – bearing in mind we have not owned or driven this model of car before and are not MINI brand expert mechanics - and we agreed to purchase the car on the condition that issues we had found there and then were fixed. These issues included the air conditioning which was blowing out hot air, the radio interface which was not displaying anything, and a sun visor on the driver’s side which was falling apart. (It could be noted at this point that the air conditioning and radio were included in the advert for the car as features of the car and not described as faulty so it is not unreasonable to include these repairs as condition of sale). You told us that we would need to pick the car up the next day and that the repairs would then be carried out at a later date, as we couldn’t collect the car the next day due to other commitments we agreed to take it there and then and that we would be contacted with a date for repairs. We paid the sum of £3995.00 via bank transfer, all paperwork was completed and handed over and we drove the car home.

On arrival home we noticed immediately the car was discharging fluid from underneath the engine. I know that sometimes this could have had a reasonable explanation and it was late evening by this time so decided to look at it again in the morning in daylight. The next morning (5^th July 2019) I took the car out briefly and again after this it began leaking large amounts of fluid. I got in contact with you immediately at this point to make you aware of the fault and you advised us to take it straight to the garage that was going to be completing the other repairs (Address of said garage, ********, ********, *** ***) where it would be looked into. It turned out that the fault was a leak from the thermostat housing, which was confirmed as repaired via email, along with the faulty items specified at time of sale, and we picked the car back up on the morning of the 10^th July 2019. I am aware that, in the time we have had the car since this, the leak has not reappeared and hence we have had no further contact with you until this week, and I have also already made it known that we are not ungrateful for these repairs.

We used the car for the purposes of commuting from then onwards - and were away for a week where the car was not used - as such it had been 31 days since delivery of (and twenty-four days where we had use of) the car, when on the 10^th of August I drove the car to work and felt that the car had become unduly noisy when moving off and had started making clunking noises changing gear. I mentioned this to my husband who drives it more regularly than I do and asked if he had noticed anything. His response was that the use of the clutch and changing gears was “no more difficult than it had always been since we got [the car]” (we had put this down to perhaps being how MINIs drive, or just us getting used to a different clutch than ones we have been used to) but that the significant noise was new. We were unable to get it looked at, and thus had to continue driving it, due to work commitments until the 12^th August whereupon we took it to a reputable mechanic (Name and address of mechanic, *********, ********, *** ***) who we trusted to give us a diagnosis of what the problem is. He confirmed that the clutch and dual mass flywheel were requiring replacement and that this is not a problem that would have appeared so fast as within a month of driving the car, and intimated it would likely be something that has been deteriorating over months and present at time of sale.

He charges very reasonable prices and quoted us for the repair (using OEM parts which we would expect with a car of reasonable quality such as a MINI Cooper S) as follows:

Clutch - £175.00
Dual mass flywheel - £360.00
Labour - £455.00


Total including VAT - £1188.00


At this point we got back into contact with you again, explained the above and that under the Consumer Rights Act 2015 (CRA) as the car has breached contract of sale again and has already had one repair that we no longer had to accept any offer of repair from you, and that we were within our rights to exercise our final right to reject. We advised that rather than doing this we would like to come to an amicable agreement with regards repairing the car and after many exchanges via email we thought it was not unreasonable for us to offer up a compromise whereby our selected garage carries out the work, and you cover full costs of parts, as well as half the cost of labour both inclusive of VAT (a cost of £915.00), and we would cover the remaining amount. We felt this was actually fairly reasonable as we don’t have any obligation now to accept a repair or replacement from you. We gave you contact details to speak with the garage we had been to and said we would be happy for you to inspect the car for yourselves, but we received no response to these offers.

You disputed that the fault with the clutch/dual mass flywheel was already significant at time of sale and have said it cannot be proven as such. I have rejected this idea and informed you accordingly – under section 19 (14) of the CRA we are beyond thirty days of having the car, yet within six months of this, so any fault is presumed present at time of sale. You have also disputed me informing you that you have no further attempts to rectify the breach of contract by repair or replacement as you have already had one opportunity under section 24 of the act. Again I have rejected this as under the CRA the initial repair of the thermostat housing has already been carried out and the vehicle remains of substandard quality. The specifics of a fault are irrelevant - under section 9, 10 and 11 of the CRA it is the sale of goods which must be of satisfactory quality; as described; and fit for purpose that matters, and in this case we have purchased a car that does not meet any of these requirements. I feel we would be hard pushed to find anyone who thinks that it is reasonable to have a clutch fail on a second hand car advertised as ´drives perfectly´ and ´great condition´ in 500 miles of driving, to the tune of over a quarter of the value of the car’s retail price, irrespective of age or mileage.

I have in my emails given you a very detailed account of our reasons for raising this issue and the manner in which we wish to resolve it, as well as bringing to your attention and citing the relevant sections of the CRA which are applicable in this situation. We have stopped driving the car since having the problem diagnosed and will not be driving it again until the matter is resolved, so apart from anything else this is now inconveniencing us and causing a great deal of stress.

As you have declined the aforementioned offer of a compromise regarding repairing the car, it leaves us with little choice on our next steps and we put to you that:
If you do not meet our request to cover the cost of repairs at a garage we have selected - as described previously, we have asked for you to pay full cost of parts and half of labour plus VAT, totaling £915.00 - then we wish to exercise our final right to reject the car and receive a fair refund, in this case we would be willing to accept £3750.00 back for the car, allowing for the added mileage and extra owner but that we have maintained the car well and caused zero cosmetic damage to it since it has been in our possession.

If we do not receive a satisfactory response/resolution within 14 days of the date of this letter, we will issue proceedings against you in the county court without further notice. I also draw your attention to paragraphs 15 and 16 of the Practice Direction which gives the court power to impose sanctions on any parties if they fail to comply with the direction, which includes failing to respond to this letter before claim.

Yours faithfully,

Etc.





I haven't received a response to the email I sent this morning yet, I can only assume they are consulting with their legal advice place as to where they stand and are still going to try and dispute my complaint, and are discussing amongst themselves how they are going to approach their response this time. Either that or they are now waiting to see if I go through with sending the letter as I advised them!

[rgn2012]

He has now replied to my email this morning, and you’re right he looks like he’s not backing down, most of the first half of the message is directed at my citations of the consumer rights act:

“Yes all of that would be correct & comes in to effect if the car was sold with the fault which it was not it has developed after so it’s a warranty repair not a consumer case.
There was no noises coming from the flywheel and the gear change was fine as this is the first time you have reported the fault that alone shows the car / clutch & flywheel was in good working order.
We have offered a free repair as “good will” which is more then fair.
If you wish to take it further then do as you see fit.
We have acted fairly and offered a simple & easy solution at no cost to you which you are refusing for no good reason other then you want it done at your own garage.
This is all completely unnecessary and getting tiring repeating the same thing over & over , you are the first customer in all my time of trading to refuse a free repair.”

I’ve replied now saying to expect our letter and that I will leave it with them how they want to respond to that. Have become frustrated with his continued ignorance of what I am just trying to put across to him based on fact and the assumptions he is making that just because the garage they use is close to us that this would make it easier for us and ‘why aren’t we being reasonable’ we’re the ‘first customer to refuse a free repair’ in all his years etc. which is all irrelevant nonsense anyway. Buying a used car is turning out to be quite the minefield I have always heard about!

[des8]

Jut got to see your letters etc.
Don't send that letter before action, it is much too wordy!
I'll draft something up for you later this evening

Do you want it repaired, or are you rejecting it and want your money back?

[rgn2012]

Oh ok! Probably letting my emotions get the better of me! Would the above sort of information be better kept for court if it were to get that far?
I suppose that as all reasonable efforts to come to an agreement on repairing it (when we are under no obligation to accept a repair anyway) have got us nowhere then really at this stage yes we would be rejecting it. We wouldn’t even expect a full refund as described in my post above so it’s not like we are trying to drain thousands of pounds of extra money out of them just want a fair amount back on a faulty product.
Do you think if it does end up going via court that we would have a strong case against them?

[des8]

I have just been back reading over this thread, and it may be that you have no choice but to accept his offer of a repair.

This is because Consumer Rights Act 2015 (CRA 2015) sec 23 (6) states "A consumer who requires .... the repair of goods cannot ....exercise the short-term right to reject, without giving the trader a reasonable time to repair them "

In your first post you indicated that you required a repair, but the trader refused to do it free of charge. Rejection therefore possible.
In post 9 you refer to an email sent to the trader. I do not know what was said in that, or what you said in earlier correspondence, but in his response the trader has said "We have offered a free repair ".
If that is correct, and if it follows your request for a repair you have lost the right to reject the vehicle (for now at any rate).
IMO you would have difficulty in court maintaining the right to nominate where the repair is carried out.

[rgn2012]

I am hoping it is otherwise as I just do not trust these guys to repair it at all.

He has himself agreed with me in one of the emails that it is not unreasonable to want to have repairs carried out somewhere we wanted.

My initial email was perhaps misinformed but I am not legally educated and only knew vaguely about the consumer rights act then, as soon as I was informed otherwise I made this clear to the dealer.

I said this in my first email:
“..clearly it was a fault that was there at the point it was sold to us and we would like to come to some sort of agreement on what the next steps are going to be.
I don’t imagine that this will be covered by the warranty we have, so that is most likely irrelevant unfortunately. I believe under consumer rights law our options are that either the car is repaired at no cost to ourselves or we return the car to you and receive a refund. I am aware that it has been more than 30 days now since we purchased the car but would like it to be taken into consideration that actually today is only the 34th day since we picked the car up, and we’ve really not even used the car a massive amount in that time.
If the car is to be repaired we would like it to be carried out by the garage we have had it checked at as this is where we would normally go to, they charge very fair rates and we trust them to carry out the job.
Failing this I feel our only option would be to reject the car on the basis of it being of unsatisfactory quality as this is the second major fault we have found since purchasing,”

He came back to me and said the clutch and dual mass flywheel ‘would not normally be covered under our warranty but we will do it if you pay the excess’.
After speaking to citizens advice I then declined his offer for us to pay an excess of £395 for them to fix and included this:

“I have been told that as the car has already had repairs which have still not rendered it of satisfactory quality/as described at time of sale that actually under the consumer rights law we are within our rights to reject it without having to consider any repair offered at this point even though we are now outside of the thirty day period. They have also confirmed if repairs were to go ahead it would not be unreasonable for us to ask for them to be carried out by a garage we have chosen, know and trust and that you would be liable for the full cost of repairs.

Even when not taking the above into account we have been told this is something that would be presumed present at time of sale as we are still within six months of purchasing it and you would need to prove conclusively that it was not. The garage I have taken it to have advised that there is no way it would be something we could have caused in a month of driving the car, at time of sale we were not made aware of any issues with the clutch and the car was advertised ‘drives perfectly’/‘great condition’ etc so this would indicate the clutch was in good working condition and I am finding it is evident to be to the contrary. We have had a fair few problems with this car in such a short time and cannot believe that it is now facing repairs worth more than a quarter of the value of the car itself.”

It was only after this he began to offer it as a free repair and it still wasn’t on our initial terms. Does this leave me in a better position at all? From the outset I have maintained the repair would have to be done on our terms?

[rgn2012]

Sorry the post is a bit of a mess some of my punctuation has disappeared!

[des8]

Ok, just realised that as this fault was reported after 30 days sec 23 doesn't apply.
You have a final right to reject, or obtain a price reduction.(sec 24)
You can have one or the other, so make a choice and use the relevant part of the draft below

Draft "Letter before Action"

Dear Mr xyz

Ref Mini Cooper reg no:

Following my purchase of the captioned vehicle on 04.07.2019 for £3,995.00, certain faults subsequently discovered were repaired.

Since then I have ascertained that the dual mass flywheel and clutch need replacing.

As I have had the vehicle for more than 30 days, and as there has already been a repair. I am exercising my final right to reject.the vehicle.
You should now arrange to collect the vehicle at your cost, and refund the purchase price by bank draft.

OR
As I have had the vehicle for more than 30 days, and as there has already been a repair. I am exercising my right to a price reduction of £ (insert full cost of repairs)

This is in accordance with my rights under CRA 2015 sec 24.
Failure to respond within 14 days, will leave me no option but initiate court action without further reference to your self.

yours sincerely