Returned clocked car on HP but only returned 25% of what I paid.

[mangy1983]

Hi DES8,
Thank you for your advice throughout all of this. I will raise my case through the Small Claims Court as their limit seems to be on cases upto £10,000. I will reply to this thread in due course.

Thanks once again.

Callum

[des8]

If you want assistance, just post

Good luck

[atticus]

Cases issued in the County Court for claims up to £10,000 will generally be allocated to the Small Claims Track.

[Manxman]

IMO the Ombudsman has used an incorrect basis for calculating the refund.

CRA 2015 clearly states that the goods have to be as described(CRA 2015 sec11), but
If they are not the consumer has the right to reject the goods (CRA 2015 sec 19) for a refund
The right to a refund is for anything already paid less a deduction for use in the case of motor vehicles (CRA Sec 24)

Extract from https://www.themotorombudsman.org/kn...mer-rights-act
[When you] exercise your final right of rejection – where you will be entitled to a refund of what you paid for the car minus a deduction for any usage you’ve had. This is usually calculated by looking at how many miles you’ve added to the vehicle, and charging a certain amount of pence for each mile driven.

The ombudsman in this decision seems to have based his decision on the idea that your refund is the difference between what you paid and what you would have paid if your vehicle had been priced taking into account its actual mileage.
He thinks that's fair, which doesn't mean it's correct.

Viewing the amount at stake I would seriously consider making a claim. but not using a solicitor

I agree 100% with this ^^^

The ombudsman may think their decision is fair, but it doesn't reflect the legal protection mangy1983 has under the Consumer Rights Act 2015.

Because of the mileage misrepresentation the car never conformed to contract and the consumer is entitled to reject it for a full refund, but the seller is entitled to deduct from that refund an amount to "take account of the use the consumer has had of the goods in the period since they were delivered" - s24(8).

The difference between what the consumer actually was charged and what they should have been charged if the correct mileage had been known is completely irrelevant. I'm not familiar with FOS decisions but I'm amazed that any decision could be reached on such a flawed basis(!).

Unfortunately the legislation gives no hints as to how an appropriate deduction to reflect the use of the goods by the consumer is to be calculated.

Presumably it would be some sort of charge per mile, so it's a question of identifying an appropriate rate. I have no idea what that ought to be, but some research by mangy1983 might pay off.

If the mileage was 9000 then a rate of 10p would give a deduction of £900; 20p would give £1800; 30p would give £2700; 40 p would give £3600 etc etc

[mangy1983]

Evening All and thank you all on your input,
I am just catching up on all the replies as I was away on holiday when I replied back with final ombudsman's final decision and am grateful for all the advice received from you all.

Cheers,

Callum

[mangy1983]

Evening All,
I thought it high time I updated this thread. 3 weeks ago I raised a small claims case against the finance company for the sum of £6,500. This was for my initial sum of money I felt I was owed plus the cost of raising the small claims case which was just over £400.

They have until this coming Monday to officially reply.

Today I received the following email to my personal account and would like everyone's thought on it. Personally I will not accept it and will only accept a judges decision. I think they are on the back foot and know it. I am still to reply but wanted everybody's thoughts first? Email is below.

Cheers,

Callum


Good afternoon,

Without Prejudice.

Further to the money claim you have issued against Mann Island Finance Ltd; we have reviewed the case and we continue to consider that our original decision is fair and reasonable, which has been supported by the Financial Ombudsman Service.

However, as a gesture of goodwill, without admission of liability, we are prepared to offer a further payment of £1,000.00 in full and final settlement of this matter.

This offer is on the strict condition the claim is withdrawn immediately. We will transfer the funds to you by faster payments once we have received confirmation that the claim has been withdrawn.

If this offer is not acceptable to you, we will appoint external solicitors and instruct them to vigorously defend this claim in court

We look forward to hearing from you.

[des8]

It is possible that the offer was made on a commercial basis.
They will consider it money well spent if it means avoiding solicitor's expenses.

I think you are correct, but court is always a bit of a lottery.
Good luck

[Manxman]

IIRC the mileage was misrepresented and the car had done almost twice as many miles as advertised.

You'd done about 10k miles before realising and the finance company held back about £6k (so 60p per mile) on your refund

The FOS based their decision on faulty reasoning. ie the difference between what you actually paid based on the misrepresented mileage and what you would have paid if you'd known the correct mileage. In fact, if you'd known the correct mileage you woud not have bought it in the first place

The CRA 2015 would give you a refund on what you'd paid less a reduction for mileage.

The finance company have now offered you £1000 to go away. (So they are now charging you 50p a mile)

A mileage rate of 50p still seems quite high to me, but I'm really not sure

As des8 says, court is always a lottery. You need to decide if you want to push them further and whether - if they don't budge - how far you want to go