Car dealer refusing to honour 14 day cancellation -distance selling regulation

[Hibs]

Hi everyone, you were all right, the solicitor's letter did end up in the bin! I naively thought it might avoid the lengthy process of going to court. Luckily I had a solicitor friend draft it for £85 Anyway, I am working on the money claim now and wondered whether anybody could cast their eyes on my draft claim so far?

The annoying thing is that my mum is technically the claimant because the car was for her, it is her name that is on all of the paper work even though I paid for the car and dealt with the dealership. Any thoughts would be greatly appreciated!!


DRAFT

Particulars of Claim

1. My daughter (XYZ) purchased a used vehicle intended for me from XYZ. Upon seeing an advert on www.autotrader.com, she made contact with XYZ to express interest on 26.05.22. A pre-purchase inspection was arranged to determine the car's condition. The inspection was carried out by a mechanic booked via a website on 28.05.2022. A £200 deposit was paid via bank transfer to XYZ on 30th May.

2. Hibak and I planned to see the car at the dealership on Tuesday 31st May with the view to carrying out the purchase. Due to childcare arrangements, this was no longer possible and was rescheduled for Thursday 2nd June. Mr XYZcontacted Hibak via telephone on Wednesday 1st June to inform her that Thursday was no longer possible as this was the date of the Queen's Jubilee bank holiday, which meant that the post office would be closed. XYZ explained that a V62 form would need to be completed at the post office upon sale. Mr XYZenquired about our local post office and offered to deliver the car there to conclude the sale. The car was delivered to our local post office on 1st June, where the remaining £6,700 was paid, V62 completed and Mr XYZthen drove the car to our family home.

3. Upon seeing the vehicle, I decided I did not want it having not seen it prior. We enquired about returning it to the dealership. Hibak made contact with XYZ via telephone on the same day (1st June 2022). However, XYZ explained this was not possible.

4. We carried out research and made contact with Citizens Advice bureau who informed us that The Consumer Contracts, (Information, Cancellation and Additional Charges Regulations, 2013) grant a right to cancel within 14 days of purchase on the basis that the sale was concluded at a distance from the business premises known as "off premises" contract.

5. Written notice of cancellation was provided to XYZ on 2nd June 2022. A response was received on the 16th June 2022, in which XYZ state that the regulations do not apply because we arranged for a mechanic to inspect the vehicle on their business premises.

6. We instructed a solicitor for legal advice and learned that XYZ' position was both inaccurate and did not comply with the Consumer Contracts regulations. Our solicitor issued a letter before claim on 1st July to which XYZ responded on 6th July stating the same position as detailed in their email on 16th June 2022. (The regulations do not apply because a mechanic inspected the vehicle prior to purchase).

7. We made contact with XYZ to explain they did not provide any legal basis for their argument. We considered settling the dispute and enquired about the cost of buying the car back from us. XYZ offered £5,000 which we are not prepared to accept.


Particulars of Breach

The Consumer Contracts, (Information, Cancellation and Additional Charges Regulations, 2013) states:

29. (1) The consumer may cancel a distance or off- premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions.

"off premises contract" means a contract between a trader and a consumer which is any of these...

a) a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader.

The following aspects of the legislation were breached by the trader:

Information to be provided before making an off-premises contract
10.—(1) Before the consumer is bound by an off-premises contract, the trader—
(a)must give the consumer the information listed in Schedule 2 in a clear and comprehensible manner, and
(b)if a right to cancel exists, must give the consumer a cancellation form as set out in part B of Schedule 3.

Provision of copy or confirmation of off-premises contracts
12.—(1) In the case of an off-premises contract, the trader must give the consumer—
(a)a copy of the signed contract, or
(b)confirmation of the contract.

Offence relating to the failure to give notice of the right to cancel
19.—(1) A trader is guilty of an offence if the trader enters into an off-premises contract to which regulation 10 applies but fails to give the consumer the information listed in paragraph (l), (m) or (n) of Schedule 2 in accordance with that regulation.
(2) A person who is guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Exercise of the right to withdraw or cancel
(5) Where the consumer informs the trader under paragraph (2) by sending a communication, the consumer is to be treated as having cancelled the contract in the cancellation period if the communication is sent before the end of the period.

Reimbursement by trader in the event of withdrawal or cancellation
(4) Reimbursement must be without undue delay, and in any event not later than the time specified in paragraph (5) or (6).
(5) If the contract is a sales contract and the trader has not offered to collect the goods, the time is the end of 14 days

[des8]

That PoC reads more like a witness statement than a claim.

Do sort out who the claimant is.
What paperwork bears your mother's name? receipt? contract?
You stated originally the car was a gift for your mother so presumably you were the purchaser.

I would suggest you redraft the PoC along the following lines

1)At the material time the Defendant was J bloggs t/a xxxx, a trader.(or was it a limited company?) and the Claimant a consumer
2)On 30.05.2022 the Claimant agreed to purchase a vehicle Make & model Reg No xx 00 abc from
the Defendant for £xxxxx, paying a deposit of £200
3)This was an off premises contract
4)The Defendant's failure to comply with Sec 10,(as well as secs 12 &19) of the Consumer Contracts, (Information, Cancellation and Additional Charges) Regulations, 2013 (CCR 2013) means the Claimant is not bound by the contract.
5)If point 4) is denied the Claimant as per the right bestowed by sec 29.1 of CCR 2019 gave the Claimant by telephone on 01.06.2022 and subsequently by letter 02.06.2022 notice of cancellation of the contract
6)The Defendant has rejected the notices of cancellation
7)Accordingly the Claimant claims
(a)the sum of £xxxxxxxxx
(b) additional costs of £xxxxxxxx
(c)court costs
(d) Interest pursuant to section 69 County Courts Act at such rate and for such periods as the court deems just.


If thisis your firstforayinto civil litigation and the world of courts you might like to skim through the attached:L
https://www.judiciary.uk/wp-content/..._in_Person.pdf
https://www.judiciary.uk/wp-content/...+web+FINAL.pdf

others might have other suggestions for a wording of your PoC

[Hibs]

That PoC reads more like a witness statement than a claim.

Do sort out who the claimant is.
What paperwork bears your mother's name? receipt? contract?
You stated originally the car was a gift for your mother so presumably you were the purchaser.

I would suggest you redraft the PoC along the following lines

1)At the material time the Defendant was J bloggs t/a xxxx, a trader.(or was it a limited company?) and the Claimant a consumer
2)On 30.05.2022 the Claimant agreed to purchase a vehicle Make & model Reg No xx 00 abc from
the Defendant for £xxxxx, paying a deposit of £200
3)This was an off premises contract
4)The Defendant's failure to comply with Sec 10,(as well as secs 12 &19) of the Consumer Contracts, (Information, Cancellation and Additional Charges) Regulations, 2013 (CCR 2013) means the Claimant is not bound by the contract.
5)If point 4) is denied the Claimant as per the right bestowed by sec 29.1 of CCR 2019 gave the Claimant by telephone on 01.06.2022 and subsequently by letter 02.06.2022 notice of cancellation of the contract
6)The Defendant has rejected the notices of cancellation
7)Accordingly the Claimant claims
(a)the sum of £xxxxxxxxx
(b) additional costs of £xxxxxxxx
(c)court costs
(d) Interest pursuant to section 69 County Courts Act at such rate and for such periods as the court deems just.


If thisis your firstforayinto civil litigation and the world of courts you might like to skim through the attached:L
https://www.judiciary.uk/wp-content/..._in_Person.pdf
https://www.judiciary.uk/wp-content/...+web+FINAL.pdf

others might have other suggestions for a wording of your PoC

Hi Des, thank you so much for your response, I am so grateful! Yes, I have no experience so I'll have a read of the documents and re-draft the claim. The paperwork in my mum's name is the invoice, logbook and warranty (that came with the car purchase). My solicitor friend explained that my mum would be the claimant because it is her car. This didn't make any sense to me because i paid for it and I had all the communication. I'll see if I can get a second opinion on this. Thanks again, i'll post the amended version once I've updated it.

[Hibs]

Hi des8, I have amended the POC which I have linked below. I wanted to ask for your thoughts, I called citizens advice bureau and explained the story from the perspective of the dealer to get some insight. I was partly confused about him saying based on their advice that the regulations don't apply even though i called them 3 times and they gave me a different point of view.

The CAB basically told me that because the consumer (me) sent a mechanic to inspect the vehicle prior to buying the car, the sale went from off- premises to on premises because the mechanic is considered to act as a representative for the consumer therefore the consumer "saw the car" on site. So when, I asked where in the legislation this is stated to help with a defence, they said that argument is sufficient and obvious.

I've read the entire CCR, 2013 at least 3 times and it doesn't say anywhere that the right to cancellation ceases to exist in the event that a representative views the goods on premises. Here are some definitions:

“off-premises contract” means a contract between a trader and a consumer which is any of these—

(a) a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

29.—(1) The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions—

(a)regulation 34(3) (where enhanced delivery chosen by consumer);

(b)regulation 34(9) (where value of goods diminished by consumer handling);

(c)regulation 35(5) (where goods returned by consumer);

(d)regulation 36(4) (where consumer requests early supply of service).


also, on point (d) The dealer replaced the auxillary belt on the car which I agreed to (£40) after i paid the deposit. My solicitor friend said i'm not entitled to that money hence im claiming back £6,860 instead of £6,900 which they also put in their letter before claim to the dealer. Do you think this could be considered as early supply of service?

I would appreciate any thoughts. Thanks in advance!

[des8]

Having looked more fully into the circumstances you describe I would argue that this was a distance contract, not an off premises contract..
The contract was concluded when you agreed to purchase the vehicle and paid the deposit
There was offer, acceptance, consideration (your payment & his promise to deliver the car) & intention to be bound.
This contract was arranged by phone/email (?) i.e. at a distance
Keep the claim at £6900 (a price which included the belt) and let the defendant dispute it.

It does seem that you were the contracting party

Your PoC sholud be succinct,(CPR16.2), so anything beyond the bare details should be omitted



1. At the material time the Defendant was XX Ltd and the Claimant a consumer, XX

2.. On 30.05.2022, the Claimant concluded a distance contract with the Defendant via telephone (?)to purchase a Hyundai i10 XXXXXXX
from the Defendant for £6,900, paying a deposit of £200 via bank transfer.

3. The vehicle was delivered to the Defendant on 01.06.2022

4 The Claimant as per the right bestowed by section 29.1 of the Consumer Contracts. Information, Cancellation and Additional Charges Regulations, 2013 (CCR, 2013) gave the Defendant notice of cancellation via telephone on 01.06.2022 and subsequently in writing on 02.06.2022.

5)The Defendant had not complied with section 13 CCR, 2013 and accordingly the Claimant was not bound by the contract (check this!)

6. The Defendant has rejected the notices of cancellation

7 Accordingly, the Claimant claims:

a) the sum of £6,900

b) Court costs

c) interest pursuant to section 69 County Courts Act at such rate and for such periods as the Court deems just

[Hibs]

Hi des8, I have amended the POC which I have linked below. I wanted to ask for your thoughts, I called citizens advice bureau and explained the story from the perspective of the dealer to get some insight. I was partly confused about him saying based on their advice that the regulations don't apply even though i called them 3 times and they gave me a different point of view.

The CAB basically told me that because the consumer (me) sent a mechanic to inspect the vehicle prior to buying the car, the sale went from off- premises to on premises because the mechanic is considered to act as a representative for the consumer therefore the consumer "saw the car" on site. So when, I asked where in the legislation this is stated to help with a defence, they said that argument is sufficient and obvious.

I've read the entire CCR, 2013 at least 3 times and it doesn't say anywhere that the right to cancellation ceases to exist in the event that a representative views the goods on premises. Here are some definitions:

“off-premises contract” means a contract between a trader and a consumer which is any of these—

(a) a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

29.—(1) The consumer may cancel a distance or off-premises contract at any time in the cancellation period without giving any reason, and without incurring any liability except under these provisions—

(a)regulation 34(3) (where enhanced delivery chosen by consumer);

(b)regulation 34(9) (where value of goods diminished by consumer handling);

(c)regulation 35(5) (where goods returned by consumer);

(d)regulation 36(4) (where consumer requests early supply of service).


also, on point (d) The dealer replaced the auxillary belt on the car which I agreed to (£40) after i paid the deposit. My solicitor friend said i'm not entitled to that money hence im claiming back £6,860 instead of £6,900 which they also put in their letter before claim to the dealer. Do you think this could be considered as early supply of service?

I would appreciate any thoughts. Thanks in advance!

Hey Des-8

Sorry for the late response, I was away for a few days. Initially I had argued with the dealer that this was a distance contract, which is in all the email communication but when i looked at the definition, I started to worry that this doesn't fit so well.

In the CCRC, 2013 it says:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;


The language has thrown me a little. Contract concluded without simultaneous physical presence... the sale was concluded in person, where I then paid. Exclusive use of one or more means of distance communication i would agree that all the communication was via telephone and text. But then it said up and AND including the time at which the contract is concluded which i'm not certain about.

What do you think?

[des8]

When you paid the deposit, was it over the 'phone/by text?
It was at that point the contract was concluded.

[Hibs]

When you paid the deposit, was it over the 'phone/by text?
It was at that point the contract was concluded.

I spoke to him on the phone after the mechanic sent me a report of the car inspection, during the phone call i agreed to purchase the car and then transferred the money by mobile banking.

Ok that's encouraging. The phone call to citizens' advice bureau has really thrown me. I feel the argument will come down to whether or not the mechanic inspection on their premises nullifies the distance selling regulation. That's been their entire argument this whole time.

[des8]

Well if you are concerned about that, you could add that "In the alternative this was an off premises contract and you have a 14 day right to cancel, or a year if you were not given your cancellation rights by the trader"

[Hibs]

Well if you are concerned about that, you could add that "In the alternative this was an off premises contract and you have a 14 day right to cancel, or a year if you were not given your cancellation rights by the trader"

Good idea. Thanks for your help with the POC. I will post updates on here.

[Aukey]

Hi, I'm not going to hijack this thread although i'm having the same issue, i just wondered what the various different outcomes could be when the court finishes? As in if you win, what if they don't pay etc? Thanks

[des8]

well if the defendant loses and fails to pay the award ,the claimant can take enforcement action.
That action will vary according to the circumstances

[Aukey]

Thanks Des8, So you'll get your money depending on how far you want to go if they don't pay. I will follow this thread to save making another the same....good luck OP, hope it all goes well for you.

[des8]

Thanks Des8, So you'll get your money depending on how far you want to go if they don't pay..

assuming defendant has sufficient assets !

[Aukey]

lol yes that would help...