Used Car - Consumer Rights Act - Refusal of Repair

[Strandty]

Good evening all. Newbie here so, sorry if this is not done in the correct manner! Also apologies for the long winded message but I wanted to ensure everything was included.*

I was hoping to get some advice as this is now starting to cause my family and I some serious stress. So here is the situation:

My mother took delivery of a 14 Plate Nissan Qashqai with 45,000 miles, purchased on PCP from the dealer, ProSportsCars in Hull on January 25th 2020, after finalising a sale on December 20th 2019. The car was delivered 3 days after a service and MOT was carried out, 45 miles was the distance the car was driven to be delivered to us, with a trade in taken away.

On February 21st, we spotted*an oil leak which was reported to the dealer in question once noticed. The agent who dealt with the sale kindly mentioned that this should be discussed with the warranty company and that we should check the booklet included with sale papers and arrange with them. This points to the first time we noticed the leak, 3 weeks after taking delivery.

After discussions with the warranty company, they informed us that they would require a written quote to cover said work, up to the value of £535.00.

On March 2nd (less than 6 weeks), we took the car in to a mechanic to get analysed and to provide us with a quote. To our shock, they stated that the price would be running up to £1,000 for the repairs. Following verbal conversations with the service team, they seemed confused as to why the car was even sold in its current condition at the time and that we should get a second opinion to take to the warranty company.

Due to the COVID-19 pandemic which took hold shortly after, all local garages paused trading, meaning we could not get a secondary quote. I informed the warranty company about this, who stated that they would extend the warranty due to the global pandemic.

On May 27th 2020, we received our second quote for the car from a second mechanics and again, was quoted over £1,000 for the repairs, far surpassing the warranty limit.

This was then forwarded to the warranty company who required written reasons for the repairs, not just a list of repairs.

We then had to rebook in for a quote with said garage, which was achieved on June 3rd. The same mechanic mentioned and also put on the quote that work had quite clearly been 'attempted' prior to delivery and that sealant was used where the gaskets should have been.

The error in question is an oil leak which is coming from the oil filter housing and the front timing cover. The mechanic quoted to replace the front crankshaft oil seal, sump gasket, timing cover gasket and the rocker cover gasket. I then sent the quote to the warranty company to see what we could do, for them to say that the specific issues are not covered under the cover we were provided, so I then turned my attention to the Consumer Rights Act and approached the dealership.

Under the Consumer Rights Act 2015, this car should have been of satisfactory quality, fit for purpose and as described. Taking this into consideration, my Mother's rights have been breached, because the car sold to us is classed as faulty and is not of satisfactory quality. We kindly requested that the car was repaired at the cost of the dealer as early as possible. As the issue first presented itself within 3 weeks, we feel this issue was present prior to taking delivery of the vehicle, as limited miles had been travelled in that time, mainly too and from work.

After providing quotes and e-mails to the dealer, we were informed that it had been passed onto the legal department of the warranty company (Blackstar Warranties) who provide their legal advice.

They stated that because the car passed an MOT prior to delivery, the error was clearly not present at the time of sale and that they are now transferring the onus onto us to prove that the fault was not caused by us. After calling the garage who gave us the second quote, the mechanic stated that the oil leak in question would not lead to a failed MOT due to the leak not causing a pool of 75mm within 5 minutes as stated in the MOT inspections guidelines, point 8.4.1.

After discussions with citizens advice and a friend involved in legal, they informed me that they cannot simply apply the burden to ourselves to prove and that the MOT does not prove that the error wasn’t present at the time. My friend in legal also mentioned that the dealer is responsible for ensuring that the vehicle remains fit for purpose for a reasonable period thereafter. I would strongly argue that 3 weeks before the error was spotted is a reasonable period.

I wrote back to the warranty company (not looking for warranty cover, but to deal with the full repair by the dealer), who said that even if that is true, that it would have been an advisory and therefore was not present at the time and they’re sticking to their guns.

I have also realised on MOT certificates in the past that it states “A test certificate relates only to the condition of components examined at the time of the test. It does not confirm the vehicle will remain roadworthy for the validity of the certificate”.

I have yet to respond to their latest email sticking to their guns, but I also found the following on RetailMotorLaw.co.uk in which a dealer discusses a consumer who rejected a vehicle within a few weeks and claimed an MOT was provided before delivery, to which they had as part of their reply:

“MOT Proof of no Fault
I would be reluctant to try and argue that the MOT is evidence that there was not a fault with the vehicle at the point of sale. The MOT will demonstrate that the vehicle was roadworthy at the time when it was tested. It would be unwise to try and rely upon the MOT to prove that there were no faults with the car when it was sold to the customer. The purpose of the MOT is not to thoroughly inspect a vehicle and identify if there are any faults with it, but to check that it meets minimum standards specified by DVLA.”

We just need some advice on where to turn to next? Are they in the right? Are we in the right? Any help would be great! FYI - I have yet to approach the finance company.

Thank you for taking the time in reading this and hope you hear from some of you

[Strandty]

Further to this, I have spoken to somebody who works at a car dealership close to home, who has stated that I could even have a strong case for a faulty engine and could effectively claim for a refund, as our repair quote clearly states that sealant has been used instead of gaskets, which are the parts to be replaced showing the car was not in a fit and proper state?!?*


Even if they state that this wasn’t their fault or of their doing, they sold the car in that condition?

[R0b]

I think you are misguided, the dealer never sold you the car. Hire purchase type agreements are essentially a 3-way arrangement where the dealer, acting as an agent of the finance company, will arrange the finance. Once approved, the legal transaction is that the dealer sells the vehicle to the finance company who in turn hires it out to you.

At no point is the car sold to you because you haven't purchased it, you are hiring it until the point you decide to purchase the car by paying the remaining balance under the agreement. Since the finance company owns the car and they haven't been informed, they will have a defence against any claim on the basis that your mother failed to give the proper notice to the correct person.

Forget the warranty company for the time being, the dealer has taken you and your mother down the garden path. She needs to get in touch with the finance company and get them up to speed on what has happened so far, and let them know the outcome she is seeking. Quite often, it takes legal proceedings before finance companies decide to cave in and settle or even in some circumstances all the way to a hearing and a decision against them before things get finally determined.*

If the finance company refuses on the basis of what the warranty company has been told, I'm afraid next steps are either legal proceedings or she can contact the Financial Ombudsman as an alternative but she will need to keep paying her rental instalments until a decision is made. Given their current rate of response, that could be up to 12 months.*

Some kind of expert report or evidence will also serve useful but suggest that is only done when the finance company has refused to get the car repaired. however, given that the car was only driven a short period of time before the leak occurred, it is plausible the leak was there just not spotted at the time of the MOT but in any event, like you mention, and MOT is not conclusive evidence that a car is of satisfactory quality only that it passed the relevant tests on a particular day.

*

[Strandty]

Thanks for that Rob, makes sense and will touch base with the finance company on Monday.*

I have all correspondence from the contact between ourselves, the dealership and the warranty company (both when discussing the original claim and when they decided to inform me they’re the dealers legal advice team).

I also have the report/quote from the garage claiming that the car had attempted to be repaired previously and that sealant is being used instead of gaskets.

So taking this forward, should I be filing for a section 75 regarding the car or should I just be reporting it to the company and stating that we wish to have the car repaired at the dealers expense?*

Also, should I be focusing on the fact that they’re saying the leak is not their problem because it passed an MOT test, or focus on the fact that the engine is technically faulty due to the lack of correct internal fittings? Or will they require literally everything?*

Thanks for your help.*