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

[Newuser4828]

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.

Thanks for the response/consideration. Unfortunately, at the time I initially asked to return, I wasn't aware of the statutory right to return under a distance sale. So I didn't specifically use that particular language, i.e. no mention of a distance sale or contract. I simply said I'm not happy with it and I'd like to return it as it isn't suitable for me.

I later mentioned the distance selling when I raised it via ADR through the National Conciliation Service. And the recommendation from them was for the return to be honoured as my rights had been breached, less a deduction for mileage, but no deduction for any reduction in value.

I'm fairly happy that I satisfied the requirement to inform of cancellation simply by saying 'I am not happy with the car, I'd like to return it'.

I think they probably complied with reg 31 just by informing me of their 14 day no quibble return policy, despite the mileage caveat.

But I think that's neither here nor there as far as I'm concerned now - they're refusing to engage further so I'm not looking to cancel the contract as of now (which would be impossible given the lack of engagement) - I'm looking to get them to accept they should've acknowledged and accepted the cancellation within the initial 14 days.

[Pezza54]

If you decide to make a court claim it may take s long as 12 months to reach final hearing.
That means you will have owned and driven the car for 2 years.
If you win the case the defendant will have to pay most of the legal costs. However the judge is surely going to make a deduction on your claim for usage.
The deduction the judge calculates may reduce the value of your claim to less than the market value at the time of the hearing
Companies that comply with DSR normally want the goods returned by the consumer, unused and in the original packaging

[Newuser4828]

If you decide to make a court claim it may take s long as 12 months to reach final hearing.
That means you will have owned and driven the car for 2 years.
If you win the case the defendant will have to pay most of the legal costs. However the judge is surely going to make a deduction on your claim for usage.
The deduction the judge calculates may reduce the value of your claim to less than the market value at the time of the hearing
Companies that comply with DSR normally want the goods returned by the consumer, unused and in the original packaging

That is a consideration, it is frustrating that a blatant breach of DSR is being denied but if court is what it takes to get them to accept liability - I don't mind if I get charged mileage costs, I don't think it will reduce it to lower than market value in and of itself (although I haven't seen any standardised mileage charges, if it's £0.30/mile, it could total up to about £3,000 or so). From what I've read, however, not all legal expenses are recoverable. Only about 70%.

I haven't looked had any costs yet to bring the litigation but solicitor costs combined with deductions for usage may result in it being quite financially detrimental, as compared to just selling the car and replacing it with the one I want. I will take this into account.

[Manxman]

I have a couple of comments to make before you make a decision but they'll have to wait 'til tomorrow now. (Or at least I'll try to post tomorrow).

There's just one thing that I think does need to be mentioned now because I'm not sure if you've got the wrong end of the stick about something(?).

To put it simply, if you are claiming < £10,000 then neither side can generally recover their costs from the other side. That's one of the points of "small claims" - to give access to the courts to claimants who otherwise would not be wealthy enough to pay court and legal fees. But once your claim exceeds £10k you are beyond the "small claims" limit and the winning side can claim their costs from the loser.

That is bad news for you (the claimant) if you don't have a really strong case, as you could end up paying the car dealer's costs if you lose. And the consesnsus on this board seems to be that you may not have a particularly strong case...

Also, can I ask if you've sought help from CAB? I do so because I think they're quite good on the application of the regs in respect of cancelling a distance sale - especially in those cases where the trader may not have complied with reg 31.

And on what precise date in January 2023 did you take delivery of the car? (In particular was it more or less than one year and 14 days ago?)

[Newuser4828]

Apologies, I'm not sure how to quote your message in my reply.

I definitely didn't use the words 'cancel contract', my email said the car isn't suitable for me and could I swap, I was told the swap would be as a part exchange rather than a straight swap. I didn't want to do that so I asked if I could return for a refund. To which I was told no.

It has also not been over 1 year and 14 days yet although I didn't think there was a hard time limit on bringing a case - it took months to get the NCS ADR completed. (Their adjudicator agreed a breach of Distance Selling Rules had taken place).

Would a court be likely to be that picky about the wording used to cancel the sale? The intent is pretty clear. It would be great if there were some examples of previous similar judgements to read up on as I don't particularly want to be in a position of having to repay the other sides legal fees which I'm assuming will be greater than the total value of my claim.

It's strange that they categorise the value of the claim on the basis of the item being claimed around, and not for any particular 'damages' outside of that , such as asking for compensation for mistreatment etc (which I don't know if I would have any of anyway) - I would have thought the item is not really the issue, but the breach of the law.

I have not contacted CAB as yet but I will before going further.

[atticus]

If you really must quotr, you may use the "reply with quote" button at the foot of the post in question.

[Manxman]

[Note: this post drafted earlier today before reading NEWUSER4828 post at #20. Will address that post next]

First, regarding any statutory right you have to cancel a distance contract, I’m not convinced you actually cancelled the contract as required by the regulations, which say you have to clearly inform the trader that that is what you are doing. I’m not sure asking for a return or refund satisfies that requirement

Having said that, I’m surprised that your ADR provider seems to have sided with you and thinks that the trader should have taken the car back and refunded you – so perhaps I’m being over-pessimistic there and you actually have a better case than I think you do.

Second, if the trader’s swap or return guarantee is conditional on you doing less than 250 miles and you broke that condition, I don’t see that the trader is obliged to allow you to take advantage of it.

Third, even if you did successfully cancel the contract in January last year you’ve continued to use the car for a year. The trader would be entitled to deduct from your refund an amount of money that reflects the loss in value of the car over that year. I imagine that would be quite a considerable sum.

Fourth, I think you’ve dismissed the possibility that the trader might not have provided you with the information about your statutory right to cancel as required by para (l) of Schedule 2 to the Regulations. Remember if they did not provide that information to you then (a) the cancellation period is extended from 14 days for an additional year (or until 14 days after they do provide the info to you); and (b) they aren’t allowed to make any deduction from your refund for loss of value**.

Only you know (or can check) whether the trader did or did not supply to you all the cancellation information required by the regs, and even if he didn’t you must by now be nearing the end of the extended window for cancellation. (At most it ends one year and 14 days after you took delivery of the car and that must have expired or nearly expired by now).

Have you sought advice from CAB? They would be more reliable than me in helping you decide whether you have a case.

Personally I think you’ve left it too long (and also too late) to have a reasonable chance of winning if you sue the trader – but if you think you have a good case go ahead – but understand that the odds are probably against you and if you are claiming >£10,000 you will probably get the trader’s costs awarded against you as well if (or when) you lose.

** That’s what the regulations say, but many people doubt that you could cancel a contract during the extended cancellation period (ie one year plus 14 days after delivery) and not have to pay anything for loss of value or for use of the vehicle…

[Manxman]

... I definitely didn't use the words 'cancel contract', my email said the car isn't suitable for me and could I swap, I was told the swap would be as a part exchange rather than a straight swap. I didn't want to do that so I asked if I could return for a refund. To which I was told no... OK. Personally I don't think that is enough to "cancel" a distance contract, but I could well be wrong. One judge might agree with you. Another judge might not. And of course your ADR mediator agrees with you and not me...

It has also not been over 1 year and 14 days yet although I didn't think there was a hard time limit on bringing a case - it took months to get the NCS ADR completed. (Their adjudicator agreed a breach of Distance Selling Rules had taken place). (1) Even if the cancellation window was extended up to one year plus 14 days because the trader didn't supply the necessary info concerning your cancellation rights, I think a court would say that that was a hard time limit that you had to comply with. (2) Even if your ADR provider is right and you did cancel the contract in January last year, you have continued to use the car for a year and the trader is entitled to keep its "reduction in value" from any refund due to you. I would not like to say how that should be calculated after a year.

Would a court be likely to be that picky about the wording used to cancel the sale? The intent is pretty clear. A court could well be picky. Or it might decide that you obviously intended to cancel the contract even if you didn't say so. Is there anything in the ADR decision explaining why they think you cancelled the contract that would support your intent? It would be great if there were some examples of previous similar judgements to read up on... [I don't think there have been any reported cases]... as I don't particularly want to be in a position of having to repay the other sides legal fees which I'm assuming will be greater than the total value of my claim. Quite...

... I have not contacted CAB as yet but I will before going further. I think you would find that helpful

See comments above in bold italic blue.

Out of interest, on what date did you actually take delivery of the car? And has the trader supplied to you the information required by para (l) schedule 2 since then?

[Manxman]

... - 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'...

One other point to bear in mind - and you should ask CAB about this as they are the gatekeepers for Trading Standards. (You should also bear it in mind if you have any further negotiations with the dealer - but don't make it sound as if you are blackmailing them!)

As I understand it The Consumer Protection from Unfair Trading Regulations 2008 (legislation.gov.uk) make it a criminal offence (prosecutable by Trading Standards) for a trader to indulge in a "commercial practice" which contains false information about a consumer's rights that might affect any transactional decision the consumer might make.

It could perhaps* be argued that, by telling consumers that they can only return and get a refund on a distance sale if they have covered fewer than 250 miles, the trader is misleading consumers as to their statutory right to cancel a contract under the regulations, and therefore committing an offence. (The Regulations do not prevent a trader from cancelling a distance contract because of "over use". They simply allow the trader to make a deduction from any refund to reflect the consumer's use. That deduction could legitimately be up to 100% of the purchase price, but the trader cannot completely remove the consumer's right to cancel)

Note that I'm not saying the trader is indulging in such a practice - I'm saying it's something to explore with CAB/Trading Standards...

By the way - I know a bit about consumer rights but I'm not a lawyer and I'm not giving legal advice in any of my posts. I'm simply trying to point you to areas to explore. As I've already said, I think you have a rather weak case because you may have left it too long - but your situation raises interesting questions about the right to cancel distance contracts. I'm not suggesting you go on a fool's errand to satisfy my curiosity...

Good luck whatever you decide to do


*Of course the trader might argue that the 250 mileage limit only applies to their own return and refund policy and not to the statutory right to cancel a distance contract. But do they make that clear? My impression from what you've told us is that they only mention their own policy and not the statutory right to cancel. So consumers could be misled into thinking that the 250 mileage limit applies to the statutory right to cancel and that they had lost that right when they hadn't.