Car trader claims not distance sale

[rikdogguk]

Hello

I made a £400 payment to secure a £10k used car. This was remote as car is other side of the country. I have changed my mind because of discrepancies in the advert. Essentially it was advertised with stock photos of a similar car, not the car I’m buying.

Dealer is refusing to refund as claims this was a holding fee not a deposit. This was discussed verbally and I have no proof of what was said, though I was under the impression it was a deposit and sent a text message immediately after transferring the money explaining I had paid a deposit.

Terms and conditions are not mentioned on the ad, or provided before the payment was made. A non refundable holding is not mentioned in the as. I did track down the dealer ts&cs on their website after the fact which mentions a holding fee being not normally refundable.

I am of view this is a distance sale as I have not seen the car in person and monies should be refunded. Dealer is having none of it and says see you in court.

I am not averse to sending an LBA and instigating action via moneyclaim but would like to understand my legal position, if anyone can help?

[rikdogguk]

In addition to it being a distance sale I feel it is wrong of the dealer to use stock photos of a similar car and not state that on the ad. Dealer says it makes no odds as cars are the same, I say it’s a 100k mile vehicle, some wear and tear is inevitable and I feel I have been misled. There is a loss of confidence in the dealer which means I no longer trust even if accurate photos are now provided, I should have had these at the outset to inform my decision to place a deposit.

another issue is that the dealer told me before I placed deposit I could buy a high quality specialist warranty. This was important as it’s a high mileage, albeit quite new vehicle. I since learnt this warranty would be void as the car is ex private hire! So I cannot obtain a functioning warranty on the car, though I expect he would still be willing to sell a warranty to me.

Am I being unreasonable and is there a breach of contract here?

[Frank1]

You can seek redress under the Consumer Protection from Unfair Trading Regulations.
You paid a £400 holding fee. It wasn't a deposit so you hadn't entered a binding contract.
£400 seems excessive as the normal holding fee is £99.
The court may decide this sum is a penalty and unfair
The dealer would have to show that £400 was his loss suffered when you decided not to go ahead.

You should write a letter of complaint to the dealer pointing out the regulations you consider he has breached.
Gather evidence: terms about the holding fee were not explained to you and hidden on their website.

The Motor Ombudsman has published an article about holding fees and whether the consumer is entitled to be refunded. They state much depends on the wording regarding the fee