DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

My personal approach would be to write to their Complaints department, setting out the position as you view it and ask them what they intend to do to remedy the situation, as you don't want to initiate legal proceedings and want to settle amicably.
Head the letter "WITHOUT PREJUDICE". This will prevent it's use in court.
I am a great believer in trying to come to an agreement without resorting to court.

Was your contact with VX in writing? If by phone did you make a note of date & time & to whom you spoke?
Were your contacts with buy a car in writing or by phone? If the latter do you have a record of date, time and person?

You need to make a written record now (if you haven't already done it) of what, when, where and to whom as if this goes to court you will have gotten it all mixed up and half remembered by the time you get there!

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8, many thanks for all the advice given. Unfortunately I do not have records of any of the phone calls, but on a positive note all of the points I have raised can be backed up and verified by a trail of electronic communications - including the communications with Vauxhall head office. The original emails to Vauxhall were addressed to the Managing Director of Vauxhall UK but were responded to eventually by the Executive Support Manager. I will print off the full communications trail and place into a file.

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

· The prices of the "new Vauxhall Insignia" were already dropped by some thousands of pounds already when launched, the Vauxhall OTR price for the model variant I ordered (without any options fitted) at this present time is £24,454.00. The Buyacar "contracted" price for the vehicle I ordered is £17,194.00 - which is £7,260.00 less than the Vauxhall OTR price. My view is that this is the sole reason Buyacar / the Supplying dealer have not supplied the car to me i.e. THEY HAVE MADE A PRICING ERROR AND WILL / HAVE NOT ADMITTED TO IT!

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

I have one last question for the experts on here.

As I am currently of not having a car for getting on 9 months because of this debacle I need to purchase a vehicle now as it is putting unecessary pressure on family loaning my dad's car. I cannot now afford the dealer price for the specification the Buyacar contract was for as it is £3,826.00 more than the Buyacar price and if I purchased this I would then struggle with the running costs year on year. So I am therefore looking at purchasing a vehicle with a completly different specification e.g. a diesel of similar price but that is obviously more economical.

NOW FOR MY QUESTION
If I purchase a vehicle with the changed specification (due to the reasons mentioned above) would this affect my potential claim for "loss of bargain" from the original Buyacar contract price of £25,529.00 to the cheapest dealer quote for the exact same specification which is £29,365.00?

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

IMO probably not.
It is the plaintiff's duty to mitigate his losses, so by buying an alternative vehicle you would be mitigating the consequential losses of Buy a car's failure to perform the contract, not the actual loss of bargain.

Have you considered buying a cheap used vehicle as a temporary run about, while you pursue Buy a Car for specific performance rather than loss of bargain.

This assumes you still want the vehicle ordered and that it is still possible to obtain one.

If specific performance becomes impossible (eg car ceases to be manufactured) loss of bargain would then be the alternative available to a court.

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

I really need a reliable vehicle and I would also lose money purchasing second hand when I came to sell. The vehicle options are still available to order but Buyacar made it clear in their last communication that the new Web price i.e £3,039.00 increase would apply and it would be ordered through a different supplier. Another factory order would bring me up to twelve months without a vehicle and I would not be prepared to give Buyacar the opportunity to non deliver for a third time. As you rightly point out I am trying to mitigate consequential losses as a result of their failure to perform the contract. I just want to have my own transport now as soon as possible and then try and get recompense from Buyacar.

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

As it seems the contract has not been cancelled by yourself, although you changed the terms by making time of the essence, Buy a car have failed to complete.
As they are in breach you are entitled to pursue them through the courts.
Your remedy is either for "specific performance" or "loss of Bargain", i.e. you require them to put you in the position you would have been if they had performed the contract.
Either solution is going to take time and meanwhile you need a car and so IMO their failure to supply the vehicle and cause you to purchase a different vehicle removes from them the option of LATE performance,
In other words you would be entitled to financial redress.
That however is my opinion, others (and the courts) may differ.

I would still recommend writing first to their complaints department. Keep it simple & factual, don't accuse them of making pricing errors etc as those are things you don't KNOW, only surmise.

If you get no joy, then its commence court procedures with a properly worded Letter before Action.

Perhaps have short (free) consultation with a solicitor. Most do initial half hour free.

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8, is this letter okay in your opinion?

I placed an order with Buyacar in July 2013 for a new Vauxhall Insignia Elite Nav 2.0 Petrol Turbo Manual Hatchback with a number of factory fitted options for the agreed contracted price of £25,529.00. It has now been over 8 months and two vehicle orders, and I am still in the position that I have not received delivery of a vehicle with the agreed specification and price. During these past 8 months the following has occurred: · Buyacar have failed to perform the contract on “two” separate occasions · Communication from Buyacar and the supplying dealer to the customer has been woeful once the vehicle has allegedly been built and received at the dealership, with myself having to repeatedly contact Buyacar and “chase” information.
· Buyacar / the supplying dealer have shown a complete lack of respect for the customer and the impact this has had resulting in excessive delays, and causing unnecessary stress & inconvenience and additional financial burden to myself. · There has been a lack of transparency from Buyacar, with regard to providing the SONO number for the vehicle orders, providing updates on the progress on the order status despite repeated requests, providing of a copy of the vehicle rejection report when the first vehicle order was allegedly rejected as sub-standard due to a “major electrical fault” and allegedly returned to the factory, and providing photos of the second order once it was received at the dealership. Any details of the supplying dealer “could” have been removed or blanked out for reasons of confidentiality.
· I received communication from Vauxhall UK shortly after placing the second order that they had no record of the first order being placed on their order system across either “Retail” OR “Fleet” for the vehicle specification agreed in the contract between Buyacar and myself. In addition, Vauxhall UK stated that their system would show ALL orders placed through Vauxhall dealerships. This is despite Buyacar stating that all their new Vauxhall vehicles are Main Vauxhall dealership supplied
· Buyacar have completely disregarded the fact that when placing the “second” order that I stressed that another non-delivery of the order would cause me major problems.
· In your last communication to me by email on 19^th March 2013 you have stated that a problem had been caused for the supplying dealer as a result of myself contacting Vauxhall UK. I fail to see how my contact with Vauxhall UK has caused any problem for the supplying dealer as Vauxhall stated they had no record of the vehicle order. If this is the case, Vauxhall UK could not have identified who the supplying dealer was.
· Also, in this last email communication by Buyacar it stated that the vehicle was not available for delivery and that the supplying dealer was not “prepared” to supply the car and have cancelled the order. So the supplying dealer has “chosen” not to supply the vehicle. This is in complete contradiction of the details in an email sent to me by Buyacar on 20^th February 2014 which stated “that your Account Manager expected to be able to send the final invoice for the vehicle on Monday 24^th or Tuesday 25^th February 2014”.
· My contract for the agreed vehicle specification and price is with Buyacar and not the supplying dealer As I have not cancelled my contract with Buyacar I request that Buyacar communicates what they intend to do to remedy the situation, as I do not want to initiate legal proceeding and want to settle amicably.

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8, is this letter okay in your opinion?

I placed an order with Buyacar on 15th July 2013 for a new Vauxhall Insignia Elite Nav 2.0 Petrol Turbo Manual Hatchback with a number of factory fitted options for the agreed contracted price of £25,529.00.
The contract was confirmed on (insert date) .
It has now been over 8 months and two vehicle orders, and I am still in the position that I have not received delivery of a vehicle with the agreed specification and price.
During these past 8 months the following has occurred: · Buyacar have failed to perform the contract on “two” separate occasions · Communication from Buyacar has been woeful once the vehicle has allegedly been built and received at the dealership, with myself having to repeatedly contact Buyacar and “chase” information.
This has resulted in excessive delays, and caused unnecessary stress & inconvenience and additional financial burden to myself. · There has been a lack of transparency from Buyacar, with regard to providing the SONO number for the vehicle orders, providing updates on the progress on the order status despite repeated requests, providing of a copy of the vehicle rejection report when the first vehicle order was allegedly rejected as sub-standard due to a “major electrical fault” and allegedly returned to the factory, and providing photos of the second order once it was received at the dealership. Any details of the supplying dealer “could” have been removed or blanked out for reasons of confidentiality.
· I received communication from Vauxhall UK shortly after placing the second order that they had no record of the first order being placed on their order system across either “Retail” OR “Fleet” for the vehicle specification agreed in the contract between Buyacar and myself. In addition, Vauxhall UK stated that their system would show ALL orders placed through Vauxhall dealerships. This is despite Buyacar stating that all their new Vauxhall vehicles are Main Vauxhall dealership supplied
· Buyacar have completely disregarded the fact that when placing the “second” order that I stressed that another non-delivery of the order would cause me major problems.
· In your last communication to me by email on 19^th March 2013 you have stated that a problem had been caused for the supplying dealer as a result of myself contacting Vauxhall UK. I fail to see how my contact with Vauxhall UK has caused any problem for the supplying dealer as Vauxhall stated they had no record of the vehicle order. If this is the case, Vauxhall UK could not have identified who the supplying dealer was.
· Also, in this last email communication by Buyacar it stated that the vehicle was not available for delivery and that the supplying dealer was not “prepared” to supply the car and have cancelled the order. So the supplying dealer has “chosen” not to supply the vehicle. This is in complete contradiction of the details in an email sent to me by Buyacar on 20^th February 2014 which stated “that your Account Manager expected to be able to send the final invoice for the vehicle on Monday 24^th or Tuesday 25^th February 2014”.
· My contract for the agreed vehicle specification and price is with Buyacar and not the supplying dealer As I have not cancelled my contract with Buyacar I request that Buyacar communicates what they intend to do to remedy the situation, as I do not want to initiate legal proceeding and want to settle amicably.

Have made minor amendments, and would suggest you give them a deadline for replying eg 10 working days from receipt, and send letter "signed for".

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8,

I have not recieved a resolution response from Buyacar so have now written my Letter before Action (attached). I would greatly appreciate your comments on the wording and I will amend before sending.

Letter Before Action draft 06.04.2014 draft - Copy.doc

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Head the letter "LETTER BEFORE ACTION", to ensure there is no misunderstanding.

IMO you don't need to go into such detail.
It would be sufficient to say:

As I have received no response to my letter of 24th March 2014 I feel I have no other recourse than reluctantly commence court proceedings.
Accordingly I write in compliance with the Practice Direction on Preaction Conduct.

On 15th July 2013 I placed an order for a new............. with specific options, at a price of £25,529.00.
On the same day I paid a deposit of £1,030.00.
On 15th July 2013 confirmation of the order was received from yourselves

You have failed to perform the contract as you have not delivered the vehicle.
from here continue with your letter: "Therefore from Buyacar I am claiming....

note that the £3816 is "The difference between the cheapest dealer quote now available....

add 5th bullet point: "£...... expenses incurred due to non performance of contract " and delete bit about hire cars, as you don't want to put limits on yourself.

From then on I wouldn't change it.
Hopefully others will have a look at this and give us the benefit of their advice.

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Thank you des8 for your feedback, it has been greatly appreciated :tinysmile_twink_t2:

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Hi des8,

I have now received a response from buyacar to my "Letter before Action". In their "Without Prejudice" letter they have acknowledged the issues in the supply of the vehicle but now state they are in a position to supply the car and honour the contracted price (with them incurring a significant loss!) to avoid any lengthy legal procedures.

However, as they have failed to deliver on two previous occasions and now 10 months down the line, they have never provided any documented evidence that the the ordered vehicles physically existed or faulty vehicle was officially rejected for a manufacturing fault, they have demonstarted zero customer relations in trying to resolve the issue and demonstrating that the relationships with their suppliers are far from good resulting in myself having to resort to formal action to push for a resolve I have no intention of re-ordering another vehicle with them and am seeking to recover costs incurred and loss of bargain. They also state in their letter that therefore they would not be in breach of contract as they can satisfy the order??

Could you please provide some advice on how to respond to their letter? They have given me to the 23rd May 2014 to respond or the offer will not be valid after this date.

Regards,
0011728

[0011728]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Any response on this please???

Buyacar are adamant that because they have changed suppliers and can now supply the vehicle order again, that they are not in breach of contract. For those who have not read the full thread I have already had 2 unfulfilled orders over a period of 10 months.

In addition to Buyacar's last response they have now stated that if I wish to cancel the order they will refund my deposit and offer £500 as a good will gesture. They have not supplied any of the requested documentation as per my "letter before action" regarding my order as they state that they deal with an intermediary and not directly with a Vauxhall dealer and can only supply evidence that the vehicle was ordered through their supplier - which does not prove the order was placed with Vauxhall! Which is probably why Vauxhall have no record of the original order being placed on their system!! It is also not stated clearly on the Buyacar website about them dealing through an intermediary and clearly give the impression they deal with the dealers, though some may provide a range of vehicles from may manufacturers - see link http://www.buyacar.co.uk/buy_a_car_h..._uk_2676.jhtml.

I decided to contact Buyacar's Director by phone today to try and agree a resolution but he made it clear I had 3 choices:

1. Re order the vehicle with them - which I will not do
2. Cancel the order, refund my deposit and £500 as a good will gesture
3. If not happy with their offers then go to court but he insisted the judge would look at them being able to supply the vehicle and would find in Buyacar's favour - as he stated he had been in this siutation a number of times. And staed tha they cannot be in breach if they can supply the vehicle!

Buyacar have not proposed any form of mediation or other ADR, despite me reqesting them to do so in my "letter before action" and in my last response when refusing their offer to re-order the vehicle.

I have no intentions of placing another order with them, particulalry as I have read some more recent horror reviews, and feel I have exhausted all avenues at resolving this dispute and now have no choice but to submit my claim form to the small claims court.

Can someone please confirm at what point I should cancel my order with Buyacar to obtain my desposit or shall I just submit the claim form and then contact my credit card company and inform them I have submitted a claim and am pursuing costs for loss of bargain, consequential loss and for them to refund my deposit?

Any other advice would be greatly appreciated.

[des8]

Re: DO i HAVE A CASE FOR "LOSS OF BARGAIN"?

Sorry for the delay in responding. Somehow I missed your posts.

RULE NUMBER ONE..... DO NOT SPEAK TO THEM ON PHONE...ALL COMMUNICATION IN WRITING
I think they're worried and wonder how often they have been to court. They apparently don't take an LBA seriously, which could be unfortunate for them if it gets to court.

Don't cancel your order. If their failure to perform has caused a material breach the contract has ceased to exist. If you then cancel your order it could be argued that you do not believe there was a material breach and the contract still existed .

Secondly don't reorder. You have never cancelled an order, they have just failed to deliver.

Thirdly they have not replied to your LBA. ( It would however be helpful to see their "without prejudice" letter if you could post it up.)

I would be considering a further letter to them, explaining that as they hadn't responded as required by preaction direction you would be initiating court proceedings without further advice.
If they wished to prevent it they could meet your claim, or perform the contract, or prove beyond reasonable doubt they were about to complete the contract any time upto court action.

Would like to see their correspondence first tho'