CRA 2015, Right of rejection

[des8]

I was just pointing out that it is for the claimant to prove on the balance of probabilities that the vehicle was unsatisfactory at the time of delivery..

What proof, other than your own account, do you have?
Is there a paper or email trial.?
Did you even take photographs of the damaged items?

Even if the spring broke after the delivery date, you might be able to show the vehicle was unsatisfactory when delivered on the basis of insufficient durability. However you would still need to show the spring was inherently defective and the break wasn't caused by eg hitting a pothole.

This is fast track, and you believe the defence is led by a barrister.

The ombudsman makes his decision on what he considers fair, not on the legalities.

[GrumpyMonkey]

Yes, it is fast track, and yes, all the correspondence I have had is from a barrister. It is not my belief, it is written in black and white in their defence. Which BTW is mostly a transcript of an email sent to the Ombudsman from someone who got involved 3 years after purchase, plus various assertions that have no basis in fact. It misses out the bits were she attacks the Ombudsman for doing her job. However, I have the full email which was copied to me by the Ombudsman's service.

I have all the email track and a photo of the broken spring taken when I found it, which was emailed to the dealer with my rejection.

The Ombudsman said I have an "automatic right of rejection". What's she thinks is fair is just an opinion. Rights are incontrovertible, they can not simply be ignored.

The CRA is quite clear. It states that the consumer has can reject the purchased item if a fault occurs with 30 days of purchase. There is no obligation on the consumer to accept a repair, replacement or for the retailer to make deductions for use.

There is also no obligation to show the item purchased was defective at the time of purchase. It would be asinine to expect that, It would be generally impossible to test every aspect of a purchase before the consumer left the sellers premises. If for example it was a washing machine, would it be reasonable to expect the buyer to test all it's programs instore before buying the machine?

Your post says you are a VIP member. What does that mean? Are you a lawyer or a contributor?

[R0b]

I'm afraid you'll find tucked away in the CRA that the burden of proof for the short-term right to reject rests with the consumer to show that there was a fault and that fault existed at the time of delivery/collection - see section 19(14).

Nobody is expecting you to have fully tested the goods to the nth degree before purchasing, but if there is a problem and you choose to reject within 30 days, then you need to prove it. This can be done by obtaining a third party report from someone sufficiently qualified in that field and determine how likely it is that the fault existed at the time of delivery/collection. Now, if it's abundantly clear that the fault existed from the start then an independent report is not always necessary, that's a decision you have to make.

Since the CRA derives from EU law, you might want to do some research into the case of Froukje Faber v. Autobedrijf Hazet Ochten BV. There's a number of legal articles on the case and discusses how a consumer is required to satisfy the burden of proof requirement - might be helpful as part of arguments on the day of the hearing.

I'm not really sure what relevance the Ombudsman has right now because you've issued a claim. The Motor Ombudsman starts with an adjudicator's decision and if challenged, will be referred to the Ombudsman for a final decision - that decision could change from the adjudicator's initial view of things and if you don't like it, you are free to reject and pursue legal proceedings, which you have done. So unless you accepted the Ombudsman's decision, all of that is completely irrelevant.

Assuming you have all of the evidence available then I think you've a fairly decent chance of winning your case, but I wouldn't take it as read. You are up against a barrister, they are masters in the art of persuasion and anything can happen at trial swinging from one party's favour to another no matter how good you think your case is.

As for your question on disclosure and list of documents, your starting point is CPR 31. Assuming the order for disclosure is a standard disclosure order, then you need to be looking at rule 31.6 and 31.10. You should also read the accompanying Practice Directions and you will need to use Form N265 to complete. If you are really struggling, do some research around "disclosure fast track" and there will be sufficient links to guide you on how to complete.

[GrumpyMonkey]

How does that make sense? If a fault develops after purchase, then by occurring after purchase, it could not have been there at the time of the purchase. so it would be impossible to prove that was there.

Getting an independent report was impossible, because the dealer repaired the car without telling me, thereby disposing of any evidence.

The dealer insists the spring broke after collection. I am not trying to prove otherwise. Doesn't that qualify as a fault occurring within 30 days of purchase? If so, why does that not meet the test for the 30 day clause of the CRA?

[des8]

It is not a case necessarily of when a fault occurs so much as when it is discovered.

Read CRA 2015 carefully.
It is about goods not being satisfactory, or not being fit for purpose or not being as described.

If the goods do not conform to contract within the first thirty days after delivery, the consumer has the right to reject but has to show that they did not conform at time of delivery.
That would apply where , as in your case, you discovered a broken spring sometime after delivery.
Now you think that was the condition of the vehicle when delivered (and you might well be correct) , but you need to prove it.
Don't take it for granted that you will succeed, one photo of a corroded spring might not be sufficient.

So if the spring broke within the thirty days your argument must be that vehicle was unsatisfactory when delivered on the basis of durability CRA 2015 sec 9(3) (e)

Post 11 you say it is obvious the spring was broken on delivery, but now you are not disputing the dealers contention it broke after delivery...........you need to keep to one version when in court

VIP.... I've just been around a long time .

[GrumpyMonkey]

Hi Folks,

An update to where I'm at.

The trial date has been set, disclosure lists have been exchanged and witness statements swapped.

One of their witness statements is from the MOT tester who saw the car 4 years ago. He apparently has a perfect memory and claims he even remembers the thickness of the brake pads at that time. He is, however, a liar. he also claims he replaced parts on the car that have not been replaced.

Yesterday the barrister sent another email. They have had the car examined by a "forensic" examiner, who seems to be in possession of a time machine. He has issued a report claiming the car was not defective in any way and fit for sale in 2016, despite all the springs, disks and pads having been replaced according to the MOT tester, who says he did the work. The "expert" report was not included in the disclosure list and has been dropped on me 3 days before the time limit the directions allowed to raise questions to the "expert".

The barrister also sent a letter stating that I have no chance of winning in court as the car had no "inherent" defects at the time of the sale. Not once have they mentioned the CRA. All that matters he says is the opinion of their "expert". The barrister included a cessation form asking me to withdraw now and they won't ask for their "substantial" costs.

Gamesmanship? I am not withdrawing anyway.

Is the "right of rejection" a right or not, can a retailer simply ignore it?

[des8]

Now why would they ask you to withdraw and agree to waive their costs if they were certain of winning?

[HB_420]

Hi Folks,


The barrister also sent a letter stating that I have no chance of winning in court as the car had no "inherent" defects at the time of the sale. Not once have they mentioned the CRA. All that matters he says is the opinion of their "expert". The barrister included a cessation form asking me to withdraw now and they won't ask for their "substantial" costs.

This sounds a little professionally and ethically suspect. I'm not entirely sure, might have to review the code of conduct, but I don't think a barrister can advise the other side, especially a litigant in person (which you are), to discontinue their claim. If you don't mind my asking, what were their exact words?

[GrumpyMonkey]

I miss-read the bit about not pursuing costs. However, would costs be claimable with discontinuance?

I have read the "experts" report. He hasn't actually examined the car. He has given his opinion on previous documentation and and events that took place in the past.

The report includes the scope he was given. It was only to review the documentation and give an opinion on the condition of the car at the time of sale.

He references the dealerships claimed health reports but they are not in his appendices. The only appendices he has included, are my photograph of the broken spring and the health inspection I got from Mazda.

This report was not included in the disclosure list, can it be used anyway?

This is the text in the discontinuance letter.

>>>

As it stands however, it is clear from the expert's report that the vehicle was of satisfactory
quality/fit for purpose when the vehicle was supplied to you. It is clear from point 84 in the
expert's conclusions that the findings are that the vehicle was not defective at the point of
purchase.

It is only independent experts that can give opinion evidence to a Court. On the basis of the
expert's findings, we fail to see how you can succeed in your claim being pursued against our
client. The Court is likely to substantial weight to the expert's report when deciding the case and
as such, our client is confident that your claim will be successfully defended accordingly.

In the circumstances, we see no reason whatsoever why this case should proceed through to
trial on the 16 August in relation to what appears to be an unmeritorious claim. Your claim should
therefore be discontinued forthwith and you should cease to pursue it accordingly.

Therefore, to avoid further time and costs escalating unnecessarily in relation to these
proceedings, we enclose herewith a Notice of Discontinuance for you to sign and lodge with the
Court confirming that your claim is discontinued. A copy of your correspondence to the Court is
to be sent to us for our records.

<<<

My claim is exercising the right of rejection within 30 days under the CRA, which has been consistently ignored by the dealership and their lawyers.

I would appreciate any comments.

Thanks

[des8]

I doubt we can add anything useful to comments we have already made.
We don't have sufficient information to hazard a guess as to the outcome of your claim
R0b's post 18 clearly points out what you need to do, and the hurdles you need to overcome.

It will be up to the court to decide if the report is admissible.
From the limited details available it does not appear to comply with CPR35 requirements for an experts report

[ellingtj]

'burden of proof for the short-term right to reject rests with the consumer to show that there was a fault and that fault existed at the time of delivery/collection - see section 19(14).'

No it does not and the court case you refer to states as much. I do not understand why you and Des believe that on the 31st day the requirements suddenly reverse? The burden is on the seller to prove the fault was not there at delivery.

Read the case, it's in the conclusion:
Article 5(3) of Directive 1999/44 partly reverses the burden of proof in favour of the consumer who, subject to a time limit, need not demonstrate that the lack of conformity already existed at the time of delivery of the good. Thus, it still falls on the consumer to identify that the good delivered does not correspond with that which he reasonably could have expected to receive pursuant to the contract and the information listed in Article 2(2). However, the consumer need not prove that the lack of correspondence is attributable to the seller.
The buyer needs to prove there is a fault, not that it was there on delivery.

Also Article 5(3)
3. Unless proved otherwise, any lack of conformity which becomes apparent within six months of delivery of the goods shall be presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity.

19(14) of the CRA says no different
For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.
(15)Subsection (14) does not apply if—
(a)it is established that the goods did conform to the contract on that day, or
(b)its application is incompatible with the nature of the goods or with how they fail to conform to the contract

'at any time within the period' unless it it is proved that it did which is not a burden levelled at the buyer.

[R0b]

S.19(14) does in fact put the burden of proof on the consumer for the short-term rejection, you just haven't read it properly.

S.19(3) states:

If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11, 13 and 14, or if they do not conform to the contract under section 16, the consumer's rights (and the provisions about them and when they are available) are—

(a)the short-term right to reject (sections 20 and 22);

(b)the right to repair or replacement (section 23); and

(c)the right to a price reduction or the final right to reject (sections 20 and 24).

Under s.19(14) it says:

For the purposes of subsections (3)(b) and (c) and (4), goods which do not conform to the contract at any time within the period of six months beginning with the day on which the goods were delivered to the consumer must be taken not to have conformed to it on that day.

As above, goods are not deemed to conform within the first six months where the rights under 3(b), 3(c) and 4 apply. Section 3(a) which is your short term rejection right, is specifically omitted meaning that the burden of proof lay on you to show the goods did not conform at the time of the contract.

Would also point you to the explanatory notes of the CRA 2015 too which says this:

Subsections (14) and (15) provide that, if a breach of the statutory rights – for example a fault - arises in the first 6 months from delivery, it is presumed to have been present at the time of delivery unless the trader proves otherwise or this presumption is incompatible with the nature of the goods or the particular breach or fault. This applies where the consumer exercises their right to a repair or replacement or their right to a price reduction or the final right to reject. This does not apply where the consumer exercises the short-term right to reject.

Also, the case I referred to was under the old EU law given that the Consumer Rights Act 2015 is derived from the recent EU Consumer Rights Directive 2011 but it's the principle that the court decided which is important. The point I made about the case was that there is some commentary around the burden of proof and how a consumer can establish that. If I remember, the ECJ said that there's a two-part test when establishing lack of conformity, the first being that there must be evidence that the goods are not in conformity with the goods and second, the non-conformity was physically apparent within 6 months of the contract being made. I'm fairly sure the court also accepted it is almost impossible for consumers to prove non-conformity at the actual time of delivery hence the criteria to be met.

We've given you a lot of help with this but it seems to me that you just don't want to accept what we are saying. If that's the case, just come out and say it because then I can stop replying and move on to something else. At the end of the day, it's your claim not ours so you are free argue what you like and agree/disagree with us but if you continue down the path of arguing that the burden of proof is rests with the dealer and not yourself, you are going to find yourself in a pickle if the dealer raises that point which I would expect them to.

[GrumpyMonkey]

Actually Rob, it's my claim, and I didn't make that post you are replying to.

However, since the dealer does not dispute the non-conformity was present within 30 days, doesn't that make the burden of proof rather academic?

[R0b]

Sorry I thought it was you that replied, not someone else.

If the dealer does not dispute the non-conformity then yes it would be academic.

[GrumpyMonkey]

Hi,

I can't find it above, but I think I recall somebody writing that at fast track claim online cases lawyers aren't allowed. I have an email today from the opposition that at the hearing next week I will be up against a barrister, that should be "fun".

A couple of weeks ago they said they would buy back the car and pay my court fees. the only problem was they wanted to buy back at purchase price 5 years ago. That would be OK if it didn't leave me about 1k out of pocket due to inflation.

I will post the result after the hearing.