Faulty car and CRA/Section 75 - are we too late? (moved from welcome forum}

[Wat27]

(originally posted on Welcome Forum 1/1/20 and moved to this forum 2/2/20)

I'd appreciate any advice on whether it is worthwhile to pursue a s75 credit card action or action against a car dealer under the Consumer Rights Act (CRA) in the following circumstances.

The background history is that we purchased a 3 year old used car from a dealer @ 100 miles from where we live (Dealer A). The car mileage was @ 28,000 and we paid @ £13,000 through part exchange and credit cards in March 2019. The car came with a one year warranty. The car experienced engine fault/emissions warning lights within 30 days of purchase and was taken to a local dealership (Dealer B) of the same car manufacturer. We contacted Dealer A regarding the fault and Dealer B sent a video of the inspection to Dealer A. Dealer A agreed that Dealer B should undertake the repair. Whilst we did not make any reference to the CRA (being unaware at the time) we now believe this constituted an opportunity for Dealer A to inspect and repair the fault at no cost to us. Whilst we have an email from Dealer B setting out the repairs, we do not have any financial information as we did not pay for it. We believe the car manufacturer warranty was used to cover the costs.* Two months later, the same warning lights came on and Dealer B effected a repair. A further month later, the same warning lights came on for the third time and Dealer B again effected a repair, replacing a part installed in the original repair. Both the second and third repairs were undertaken under warranty. At this stage we attempted to exercise our right under the CRA to reject the car, engaging the assistance of the CAB in drafting the letter. By phone, Dealer A insisted they needed to see a fault on 3 separate occasions before considering a rejection and as they had not physically seen the fault they would not pay a refund, and made no response to the letter. As the fault had been repaired the CAB advised that we should wait for the fault to recur and then restart the CRA process.

Three months on and the same warning light has recurred (10 months after the original purchase). Anxious not to make any further mistakes, we have not yet contacted either dealer or any other garage. The CAB have indicated we could pursue Dealer A again under the CRA and go down the s75 at the same time, whilst pointing out that any refund would be based upon the current value of the car. In original discussions, Dealer A had already stated “we would not like any offer they made”.

If we go down the CRA/S75route, we understand that we should not get the car repaired. The issue is complicated because the MoT is due in 6 weeks and the vehicle will not pass without repair. We have nowhere off road to park the car so obtaining a SORN is difficult and could potentially have an adverse impact on the car resale value if we failed in a CRA/S75 case.
Whilst we feel that continual recurrence of the same problem demonstrates the car is of unsatisfactory quality and we feel the dealer should in effect “pay” for the faults, we would welcome views on whether our case seems strong enough to take forward under CRA/s75 or whether we should cut our losses, get a repair under warranty and sell/part exchange the car.
*

[des8]

"At this stage we attempted to exercise our right under the CRA to reject the car"...............what date was this?

I would tend to agree with CAB that you can still reject the car.
Dealer A appointed dealer B as his agent to repair the car
They have had numerous attempts but the fault recurs.

if you insist on rejecting the dealer can only make a deduction from the purchase price for usage.
CAB are incorrect about the refund being based on current value.
Usage charges are based on mileage. Most dealers start at 35p per mile, but you should be able to negotiate that down to between 10p and 15p per mile.

Whether or not it is to your advantage to dispose of the car, it is not possible to say as I am not aware of your circumstances or anything about the car.
A sec75 claim may or may not be successful, and if the dealer does not accept your rejection you will have to consider court.
If you are considering a claim in excess of £10,000 you should bear in mind there are costs implications if you should lose

[R0b]

Not sure you have done yourself any favours by accepting the dealership's excuse saying the issue needs to have occurred 3 times, especially if you had spoken to CAB because they would have informed you of your rights and you could do about it. Anyway, I do agree with Des and you probably still have the right to reject based on the same issue happening again.

You need to put your letter in writing and make it clear you are rejecting the vehicle and would like X sum once you've factored in deduction for you, which I suggest you explain in your letter also so everyone knows how you arrived that the amount being claimed. Also submit your section 75 claim at the same time as that could take a little while to process. Normally, credit card companies have their own s75 form to complete so give them a call and ask what the process is.

Just a point about Des' comment on the claim being in excess of £10,000 (meaning it won't hit the small claims track and so costs won't be limited), and your problem of not being able to SORN the vehicle, you could do the following:

• Keep it insured and taxed for the next 3 months.
• Send a letter to the dealer giving notice of intention to sell the vehicle under the Torts (Interference with Goods) Act 1977. This gives you the right to give reasonable notice that if the vehicle is not collected then you will dispose of it, deducting the sums owed to you from the proceeds of the sale. Reasonable notice tends to be 14 days but if you are owed money already, prior to giving the notice, you have to allow 3 months for collection.
• If the dealer fails to collect, send it to auction and if the proceeds are less than what is owed to you (including the 3 months' tax and insurance you paid for), keep the proceeds and then sue the dealership for the rest of the outstanding balance. Thus, you keep your claim under the £10,000 small claims limit.

If you need any help on the letter if you wish to go that route, let me know as there's a letter I drafted on here somewhere I will try to dig it out.

[Wat27]

Thanks to Des and Rob for the responses.
In answer to Des, the sequence was:

• Purchase in March 2019
• Fault 1 in March and repair completed in April
• Fault 2 in May
• Fault 3 in August
• Current fault last week

Just to clarify, we have no written evidence that Dealer A authorised Dealer B to undertake the repair on fault 1. We know from reporting the fault to Dealer A that the two dealers and probably the warranty provider (same manufacturer) were in discussion on how to proceed and the outcome was Dealer B undertook the repair. Re fault 2, we returned the car to Dealer B who had undertaken the first repair. Re fault 3, we took the car to Dealer B to ascertain the fault and we contacted Dealer A to reject (verbally, then subsequently in writing). Unfortunately, Dealer A proceeded with the repair under warranty as they already had the warranty details.
At present, the car has not had a diagnosis of the fault. We have contacted an independent assessor to seek a quote for a report as we are under the impression this may be helpful if we proceed with S75. We don’t want either dealer to see the car at present in case the codes for the fault get wiped (we aren’t mechanics, but this is what we have been told happens in order to clear the fault on screen).
Re Rob’s answer, we are certainly interested in the Torts option and would like to see a draft letter. Could we clarify the sequencing?

• If we send the dealer the CRA letter and they want to inspect the vehicle, do we have to agree? If so, can we insist they collect the car at their own expense, do not undertake a repair, do not wipe any fault codes and return the car at their own expense. I have so little trust in the dealer that they would return it or would do so without “removing the evidence”.
• The car is insured until July. The MOT and road tax both expire at the end of March. If the car can’t pass the MOT due to the fault, then we can’t renew the road tax. I’m not sure if we are missing a point when you say we could keep it taxed for the next three months?
• If we follow the suggestion about selling the vehicle under Torts, would we send this letter after the dealer had refused our request for a refund/failed to respond to the letter in the set timescale and while a S75 was still possibly in progress?
• If we follow the Torts option, can we repair the car? If it went to auction the fault would be extremely obvious (switch on the engine and it currently states this car will not restart in xxx miles), which would clearly affect the sale value. We could obtain repair under warranty before any such sale.