Valid case under Consumer Protection (Distance Selling) Regulations 2000?

[Newuser4828]

Hi,

I'm looking for a bit of advice on how/whether to proceed with action against a national car dealership. I think it's a very straightforwardly winnable case but my main concern is whether it's worth pursuing or if they'll tie it up somehow and bleed me dry from a costs perspective.

The basic facts are:

- I purchased a car in January 2023. reserved online with a deposit, remainder of balance paid over the phone same-day, without having seen the car in person.
- I collected the car the day after purchase, signed some hand-over papers and drove away
- within less than 14 days, I decided the car wasn't suitable for me, I asked for a return/refund and the intent was to purchase a different (more expensive) car from them which I'd seen for sale, but the return was refused because I'd covered more mileage than the 250 miles which forms part of their '14 day change of mind return/swap guarantee'

I raised this as a complaint and was referred to the ombudsman, who picked this up a few months ago after sitting on it for a good number of months.

Their ADR investigation stated that regardless of the mileage covered, the internal policy didn't supersede the Distance Selling regulations and a return/refund should've been honoured and ought to be honoured now, but this has also been rebuffed by the head of the local dealership who have stated they'd be happy to see the case raised via the courts as they do not believe they are in the wrong. This left the case deadlocked from an ADR perspective.

I have continued to utilise the car (purchase price was £15.5k) as I have no other means of transport and my funds are tied up in the car. This is the only thing I can think of that might mitigate my case as it suggests I'm happy with the car.

I now wish to pursue this legally given the lack of success I've had, but I have no perspective on what sort of costs might be involved.

So the costs are question 1 because I'm assuming I'd have to instruct a solicitor (I've spoken to a solicitor through some cover I have elsewhere but they're very light-touch/don't actually take up cases), and question 2 would be whether any costs are recoverable from the other side if the case is won?

And I suppose 3 is whether a large dealership with a full legal team is going to be a barrier - I believe I have a valid case, but I'm aware there's probably ways of them tying things up to make it more hassle than it's worth.

Thanks in advance for any advice!

[des8]

Presumably you accepted the ombudsman's decision?

You might find this thread useful: https://legalbeagles.info/forums/for...dsman-decision

[Newuser4828]

Thank you! And there wasn't really an 'accept/refuse' option given, they just said we think the dealership should now refund/accept the return because they should've done it in the first place. Dealership said no - take us to court if you want. The Ombudsman just said the case is classed as deadlocked and they have no legal powers of enforcement so that's the end of that.

I will have a look through the link!

Just realised - it's called the NCS, not the TMO in that link. I was directed by the dealership to the TMO but they said that the dealership wasn't signed up to them, they were signed up to NCS. So it's the NCS ADR scheme that I went through.

[des8]

What service did you sign up for with NCS?
Was it just conciliation/mediation or did you pay for legally binding arbitration?

Did the dealer advise you in writing (look at the contract) that they were attempting to limit your cancellation rights?
My understanding (which is open to correction) is that the only course open to the dealer was to charge for usage, not to limit it.

Bit late for cancellation now as it is over a year and you have had to continue using the vehicle,(that might raise eyebrows!)
Also, as I think you are aware, as you will be looking for more than £10,000 there is the risk of adverse costs if you lose.

[Newuser4828]

I'm not sure what service it was, but it was free so I'm guessing just conciliation. And it was not binding.

The dealer did email me to advise their were refusing the return. The contract does outline the mileage situation, but again this shouldn't have superseded consumer rights.


The costs recovery is what I'm wondering about, in the case of a successful claim, are these recoverable from the other side?

[echat11]

How did you pay the deposit?

How did you pay the rest over the phone?

[Newuser4828]

It was deposit of £99 paid online by debit card and the rest by debit card over the phone.

[echat11]

It was deposit of £99 paid online by debit card and the rest by debit card over the phone.

O.K. had it been a Credit Card, that may have helped..

[des8]

I'm not sure what service it was, but it was free so I'm guessing just conciliation. And it was not binding.

The dealer did email me to advise their were refusing the return. The contract does outline the mileage situation, but again this shouldn't have superseded consumer rights.


The costs recovery is what I'm wondering about, in the case of a successful claim, are these recoverable from the other side?

Yes, you are correct in that they cannot limit your statutory rights, and any such term in a contract would probably be considered an unfair term under the Consumer Rights act 2015

The rule is that the successful party can recover their costs from the other party.

[echat11]

You say this is a national dealer, did you consider writing to the CEO of the dealership?

It might be a bit late, as they've stated their position.

You could also post on their 'social media' stating your dealings with them and the 'strife'. A 'considered post' might get you somewhere, an 'unconsidered post' won't.

[Newuser4828]

Thank you I intend to write to their head office one final time to see if they have a different perspective to the branch manager.

It's a relief to hear costs are recoverable. Is this the entire costs of a solicitor from initial consolidation, or does it apply only from the point at which the case is taken to court?

I'm guessing a letter from a solicitor laying out intention might be enough to change their mind.. In which case any solicitor costs up to that point won't be recoverable.

[des8]

Regarding solicitors costs, to save writing:https://www.masonbullock.co.uk/solic...#39;t%20issued.

[echat11]

Thank you I intend to write to their head office one final time to see if they have a different perspective to the branch manager.

It's a relief to hear costs are recoverable. Is this the entire costs of a solicitor from initial consolidation, or does it apply only from the point at which the case is taken to court?

I'm guessing a letter from a solicitor laying out intention might be enough to change their mind.. In which case any solicitor costs up to that point won't be recoverable.

You need to email the CEO directly, their email addresses are generally available online. Mark it Formal Letter of Complaint.

Don't forget to add your personal circumstances, e.g. health, etc.

The Courts expect you to try to resolve the matter before you turn to them as a last resort.

[Newuser4828]

Thank you, the costs seem potentially quite high if only about 70% is recoverable, but it's still worthwhile if the case is likely winnable.

I will email the CEO, and lay out the very basic facts again. At branch level they refused to even accept it was a distance sale because I collected the vehicle myself and saw it before I drove it away - which I might've accepted if I hadn't taken a 5 minute read of the relevant rules on the matter.

I have to think that if their legal team or someone else took the time to actually assess the case instead of refusing on principle like they've done at branch level, they would see that it's a clear breach of the regulations to refuse the return and always has been.

[Manxman]

... The basic facts are:

- I purchased a car in January 2023. reserved online with a deposit, remainder of balance paid over the phone same-day, without having seen the car in person.
- I collected the car the day after purchase, signed some hand-over papers and drove away
- within less than 14 days, I decided the car wasn't suitable for me, I asked for a return/refund and the intent was to purchase a different (more expensive) car from them which I'd seen for sale, but the return was refused because I'd covered more mileage than the 250 miles which forms part of their '14 day change of mind return/swap guarantee'...!

So when you contacted the dealer did you simply "ask for a return/refund" or did you clearly tell them that you were cancelling the contract?

Regulation 32(2) and (3) of the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk) says that in order to cancel a "distance" contract you must clearly inform the trader that that is what you are doing.

Perhaps I'm being unreasonably pedantic but I think the trader could reasonably argue that they took your request for a return/refund to be a request under their own extra-statutory return/swap guarantee - and therefore subject to whatever terms they impose - rather than a request to cancel the contract under the Regulations.

Perhaps I am being over-pedantic and over-pessimistic and a court would accept that you had cqncelled the conract, but I would always advise anyone wanting to exercise their statutory right under the regulations to cancel a distance sale to spell out to the trader that that specifically is what they are doing - and not that they are using the trader's own returns policy**. It minimises the risk of confusion and disappointment.

And even if you had validly executed your stautory right to cancel the contract, then after a year of use the trader would be entitled to deduct from any refund to you an amount to reflect the reduction in value of the car.

[Edit: on further reflection you should check if the trader complied with regulation 31 and the requirements of paragraph (l) of Schedule 2 to the regulations. If the trader hasn't complied then, (a) the cancellation period is extended from 14 days for up to a further year, AND (b) the trader is not allowed to make any deduction from your refund for loss of value - see reg 34(11). But this is a bit of a complicated argument and you need to read the regs carefully and satisfy yourself as to whether the trader did or did not comply. And if the dealer did not comply you need to work out if you are still in time to cancel the contract.]

** unless the trader's own returns policy gives the consumer a better deal than cancelling under the regulations.