Going to small claims court with faulty vehicle..

[EggSalad]

Hello,

Sorry for the long post but this has been going on a while and i'm not sure what details are relevant!

I bought a car from a dealer for just under £10k at the start of the year, 2017 reg and about 50k mileage. A couple of weeks later the check engine light came on and its engine was missfiring, The dealer sent me to their warranty folk, who refused to take it as I had felt some shuddering a few times since buying the car and sp they assumed it was a pre-existing fault.

The dealer then attempted a repair themselves and returned it - but the engine light came on on again the same day. They tried again with a partner garage - but 3 weeks later the engine light and missfiring came back again. The dealer advised I go through the warranty company this time (asking that I not mention the repairs that they had done..?) so I do, but my local mechanic returns it after diagnostic saying he'd rather not work on it as it could be many things and he isn't sure he can fix it.

At this point i start calling citizens advice, and send a "letter to complain about faulty goods" template they have, and request a refund under the consumer rights act (this is 3 months after the purchase date). The dealer refuses saying that the current issue isn’t related to the first problem, and that it's just wear and tear. I reply I don't think it has to be the same problem, and that (according to the mechanics i had spoken to at least) it's not wear and tear and ask again from a refund minus cost of mileage.

They refuse again but offer to repair it, or purchase at a reduced cost, but no to a full refund minus mileage, as it's outside their 30 day cooling off period. I send a letter before court action from the citzens advice website. They reply with the same offer.

I... chicken out and bring it to another mechanics for repair, but they also return it saying the indicated faulty part is working correctly and they don't know what the problem is.

I email the dealer once more with an update regarding this mechanic visit, and they reply still refusing a refund, and withdrawing the previous offers as it’s now been more than 6 months since purchasing the car.

So now I've put in an MCOL claim, and i'm about to fill out the Directions Questionnaire for the small claims track.

So... Does it need to be the same problem like they say? And they mentioned wear and tear, does that matter or is any check engine light issue enought to make it 'not fit for purpose'? Should I try to get an expert written report of some kind? Also, I have some audio recordings of some phone conversations with them, can i submit that as evidence in small claims court?

Thanks for any advice you can offer - really feeling in over our heads with this!

[echat11]

Hi Eggsalad

How did you pay for it?

Could you write a summary of events with date (in order of how they occurred).

Can you write out word for word your Particulars of Claim?

Is the dealer a member of an ADR Scheme? (bit to late for that).

I'm sure des8 can take a look once he has more info.

[des8]

Please also enclose a copy of the defence.
all documents to be redacted

Rather than "unfit for purpose" the vehicle could be classed as "unsatisfactory".
You seem to have given the trader a chance to return the car into a satisfactory condition (altho' that was unnecessary), but he failed in that altho' a faulty part was replaced the problem soon reoccurred. The dealer then refused your rejection.
Is that a correct understanding of the problem?

[EggSalad]

Hello, and thanks for your replies!

Ok I’ll post my claim particulars and their defence after this post, as well as the summary of events (well.. as summarised as i could manage :/)

I bought it with a master debit card,
I actually asked them 3 times about an ADR scheme/the motor ombudsman and never got an answer.. so not sure about that(!),

Yes I think that understanding is correct, the dealer personally took the car back for repairs on two separate occasions, and it kept lighting the check engine light and missfiring afterwards (though i’m not sure of the root cause of this is the same as the initial one?) , and when I requested a full refund minus the mileage cost, they refused and offered either a repair or to buy it off me for 2k less than I paid for it.

[EggSalad]

Timeline Summary

8/1/22 - £200 spent deposit
9/1/22 - £9550 spent balance

28/1/22 - Local mechanic reads the engine fault code for me “Engine misfire detected” is the reading on the machine.

28/1/22 - 3.44pm - I Call dealer and say engine is missfiring and check engine light illuminated. Get warranty number to contact for repair. I also ask about returning it as it’s within 30 days of purchase, the dealer says it will have £500 deducted for admin fees so i agree to a repair.

28/1/22 - 4:08pm - Call warranty company and they say it’s not covered as I had noticed shuddering since getting the car, and so they then assume it was a pre-existing fault.

28/1/22 - 4.13pm - I Call mechanics back they agree to take it and repair themselves

29/1/22 - I bring the car to the dealer, they change the spark plugs while i wait, the check engine light comes on again on the drive home (as does the traction control light) I call them and they say they’ll take it to a partner garage.

31/1/22 - Dealer collects car from my work for repair.

21/2/22 - Dealer returns car after repair.

14/3/22 - 12.35 - Call dealer to telll them check engine light and car shuddering again. Dealer says to go through warranty folks (he also asks me not to mention the repairs that they had done..?)

18/3/22 - I call warranty company, I am instructed to bring it to any VAT registered mechanics for diagnostic.

21/3/22 I bring it to a local Mechanic

22/3/22 - Mechanic calls to say he doesn’t want to work on it as he isn’t sure he’ll be able to find/fix the problem.

(23/3/22 - At this point i start calling citizens advice, I call them 8 more times in the next few months)

27/3/22 - I Send a “Letter to Complain Faulty Goods” from citizensadvice.org.uk (registered post)

1/4/22 - Dealer replies “.. The problem you mentioned now it is not related to the problem we had fixed for you this is just a wear and tear item.. ..we are willing to get this done for you just please let us know when would you like to bring the car to us as we just need to get the parts ready before you come the whole work it take about 30min to get it done.”

6/4/22 - I call second mechanic for advice, says not wear and tear issue but it’s hard to prove that.

14/4/22 - I reply to dealer “ .. I don't think it needs to be the same problem for a refund, and I called up my local mechanic (MY MECHANIC) and (SECOND MECHANIC) asking whether it was a wear and tear fault and they both agreed it wasn't. I think I'm entitled to a refund minus the cost of mileage, If you disagree perhaps the motor ombudsman could help us resolve it? Are you a member of that or something similar?”


23/4/22 - They reply:
“.. in regards to the previous email as mentioned that the current fault in your vehicle is a sensor fault that can go at any time however this fault it is fixable and we are happy to get it done either we or the warranty as you prefer.

As you are asking for a refund on this occasion unfortunately we can't help you with this as our company policy can issue a refund within 30 days only as we offered you a refund in the first stage after purchasing the vehicle less than 30 days but you rejected it. As we have mentioned before the fault that we fixed is not related to the current fault.

We can offer you 3 options:

1. You bring the car to us and we fix it for you
2. you can take the car to any garage and get it done and claim the money back from the warranty company
3. We can purchase the car from you at the trade value price which is Autotrader valuation of £7500 but we are willing to give you £8000 as a goodwill gesture.”

25/4/22 - I send a “Letter Before Court Action” from citizensadvice.org.uk (registered post)

9/5/22 - they reply: “As We mentioned in our previous letter We are willing to repair the car for you as the car has been with you for more than 30 days which is the cooling-off period therefore we can't accept the refund at this stage however we have offered you three options were trying to resolve the matter as soon as possible but unfortunately it has been refused by your side.
we are still willing to offer the previous options.”

7/6/22 - I bring car to a mechanic for a written read out of the error, and get report reading:
“The following system is abnormal:
ECM (Engine Control Module) 2 problems exist
1.P0014 Exhaust Camshaft Position System Performance
2.P0017 Crankshaft Position - Exhaust Camshaft Position Not
Plausible”

19/6/22 - I chicken out and try to get it repaired again, call the warranty company and book it in with Halfords.

28/6/22 - Bring car into Halfords for repair

29/6/22 - Halfords call saying camshaft sensor seems to be working fine, they’re not sure what the prob is and can’t repair, I collect it unrepaired.

14/7/22 - I email the dealer with an update on the halfords visit. (Mostly i copy paste the letter before court action into an email)

27/7/22 - They reply:
“As We mentioned in our previous letter We are willing to repair the car for you as the car has been with you for more than 30 days which is the cooling-off period therefore we can't accept the refund at this stage however we have offered you few options before which was either to send you to our garage and you do the claim through the warranty or we purchase the car from you at current trade price however you refused all the offers we gave you and they are no longer valid as we wrote you the letter 3 months ago and you just got back to us as we tried to resolve the matter ASAP but unfortunatley it wasn't any interest from your side to get it sorted.”

[EggSalad]

My Particulars of claim:

I purchased a 2017 car with 50k mileage on 9/1/22 for £9750 from [Dealer]. On 28/1/22 I called [Dealer] as the check engine light had illuminated and the engine was misfiring.
Since then, one mechanic was unable to identify the problem for repair, the dealer has attempted a repair themselves, and a third mechanics (Halfords) returned the car also unable to identify the problem for repair. The check engine light continues to illuminate and the engine continues to misfire. I informed [Dealer] by letter on 27/3/22 that as the goods were not of satisfactory quality, and as they had had a chance to repair it, I would like to return the car and claim a full refund minus mileage costs under the Consumer Rights Act 2015 but they have refused. I continued to contact them but they have continued to refuse a return and refund. My claim is for the value of the car minus £359.5 for mileage, and £142.95 for mechanic visits and fees.

[EggSalad]

The Defence's Particulars:

28 January 2022
The customer first contacted us via telephone to inform us of the
engine misfire, we advised him to return the vehicle to us so that
we can diagnose it. We changed the spark plugs and tried to delete
the fault. We asked the Claimant to return the vehicle to us for
further check but he informed us that he was unable to do so. We,
therefore, offered to collect the vehicle from the Claimant and
took the vehicle to our mechanic.

31 January 2022
We collected the vehicle from the Claimant for the purposes of
examining it and determining whether there was a fault.

3 February 2022
Our partner garage conducted a diagnosis and concluded that the
vehicle required a head valve repair.
On the same day, we contacted the Claimant by telephone to explain
the findings of the garage. We offered the Claimant the following
options:
He returns the vehicle to us in exchange for a refund minus the
milage costs and administration fees; or
We fix the vehicle for him at no extra charge to the Claimant.

The Claimant opted for option 2.


21 February 2022
We returned the repaired vehicle to the Claimant.

27 March 2022
The Claimant informed us that the engine management was on. The
Claimant also informed us that there was no engine misfire.
The Claimant, without informing us, took the vehicle to a
mechanic. The Claimant’s mechanic allegedly found the camshaft
actuator sensor needs to be replaced. We confirm that there is no
link between the fault which was repaired by us and the fault
allegedly identified by the Claimant’s mechanic.
In order to resolve this matter amicably, we invited the Claimant
to return the vehicle to us so that we can examine it and repair
it if we identified any fault (see email dated 1 April 2022 at
16:56).

13 April 2022 (email attached)
We take issue with the Claimant stating in the Claim Form that we
have refused a refund. We have already provided evidence to the
contrary. We believe the Claimant is not only misleading the Court
but may also be liable for fraud under section 1 of the Fraud Act
2006.

In the email sent by the Claimant on this date, he thanks us for
our quick response and he apologised for his own delay in replying
to us.

23 April 2022 (email attached)
We offered the Claimant the following options:
To fix the vehicle for him;
To fix any issues and invoice us;
Purchase the vehicle from the Claimant as a good gesture for
£8,000 (the Autotrader valuation amount for this vehicle is
£7,500). We, therefore, have taken steps to engage in ADR and
resolve this matter amicably.

9 May 2022( email attached)
We emailed the Claimant requesting a response to our offer.

14 July 2022 (email attached)
The Claiment emailed us ignoring our offers. He stated that he had
taken the vehicle to another garage (Halfords) and that he wanted
a full refund of the purchase price, minus costs of milage.
Our defence:

The Claimant has ignored the Civil Procedure Rules by not sending
us a letter before action. His Claim Form is not objective and
omits important details relating to our efforts to resolve this
matter.

He has not provided us with documentary evidence relating to the
alleged findings by his garages. He has refused to engage with
our options to resolve this matter for him.

We have made every effort to engage in ADR.

Please note: the system does not provide an option to upload
additional evidence. I will be posting the additional evidence to
the court.

[des8]

Surprised your claim has allowed a deduction for mileage.

The vehicle was unsatisfactory and you brought this to the attention of the dealer within the first thirty days.
That fault was fixed

The second fault was discovered after the initial 30 days, and seems not to be related to the initial problems.
If you then exercise your right to reject the vehicle, the trader has the right to attempt a repair.(at his cost including collection and delivery)

How the court will view the matter will depend on the presentation of your evidence in your witness statement
Written reports from your mechanics might help (but they are not "expert" reports) and transcripts of appropriate parts of 'phone calls should suffice

[EggSalad]

Thanks for your answers Des8!

Oh ok, Citizens advice had said the second fault doesn't need to be the same one for a full refund, is that not the case and so we aren't entitled to a refund? Does that mean that they were/are entitled to another attempt at repair? Does our bringing it to mechanics on their instruction (who were it unable to find the fault) count as a second attempt if so?

Do you have any advice as to how we should present our evidence in the witness statement? We'll try get a report from our mechanic, Do we need to show the problem is not 'wear and tear'?

Oh a mechanic doesn't count as an expert.. Does that mean we don't need to tick the box to request permission to use expert evidence in our 'small claims directions questionnaire'? We can just submit what we have from the mechanic as normal evidence?

Can we submit the audio files of the phone conversations anyway (along with transcripts)? Or should we just send the transcripts?

[des8]

Consumer Rights Act 2015 sec22 applies to the short term right to reject within the first thirty days after delivery of the goods.
It allows the consumer to agree to the trader having one attempt to make the goods satisfactory.
If the consumer allows the trader to attempt a repair, the clock stops ticking on the 30 day limit until the goods are returned in a satisfactory condition.
At that time the countdown of the remaining days commences
If the goods are found to be unsatisfactory within that period the short term right to reject may be exercised by the consumer

The vehicle was returned to you after the first attempt on 21.02.2022
Your next complaint was raised on 27.03.2022 , ie outside the 30 day limit so you can only exercise the final right to reject.
Under that right the trader has the right to attempt a repair

If you took it to a mechanic on the trader's instructions ,and they could not repair it, that would count as a repair attempt which failed and so permits you to reject the goods, and obtain a full refund less a mileage reduction.

you do not want to use an "expert" witness .. see rules here; https://www.justice.gov.uk/courts/pr...l/rules/part35

have you looked at examples of witness statements, how they should be formatted and CPR 32?
Perhaps you would like to post your draft witness statement here to allow it to be tweaked or points clarified prior to filing and serving

[EggSalad]

Ah ok that’s much clearer now, thank you.

I’ll have a look at witness statements and get in touch with those mechanics for some kind of report, yeah it would be fantastic if you could help tweak my witness statement, I’ll post here as soon as I have it,

Thanks again!

[EggSalad]

Hello again Legal Beagles,

Since my last post regarding the faulty car engine (and failed repair attempts) we’ve since been given a court date.. However it looks like the dealership has stopped responding to letters or calls. We received a letter from the court saying that the (notice of allocation to small claims) letter they sent to the car dealership was returned to sender, so I tried calling them but the number is disconnected, and their website has been taken down. The court advice line has told me that as long as the address is correct the hearing can go ahead as planned but I’m unsure as to what I should do next (if anything).

Do I need to try harder to find another address for the company? The address we have been using matches the one they had listed on their website, and on the form they gave me when they sold me the car. They have also responded to mail from this address before - some from us using registered post and some post from the court. Is that enough that the address can be considered theirs, and so their responsibility to respond to mail arriving at it?

I’ve searched the gov.uk companies house register for the company, and have found a company with the same name that’s in an active proposal to strike off, though this company is listed as vehicle maintenance/repair and at a different address then the dealership I bought the car from, should I reach out to them?

Thanks in advance for any advice

[des8]

Has the company listed at Companies House the same registration number as the dealership you purchased from?

If it is the same company you can apply to the registrar to have the strike off suspended whilst your court case goes through.
When you win you can then add your name to the list of creditors.

However it is not looking good either way.

Have you tried searching on social media, both for the company and the dealer himself?

[EggSalad]

Hi Des8,

Thanks for your reply,

Hmmm, I can’t find the company's registration number to compare to the company with the same name on the register, I’ve checked the invoice they gave me and the offline copy of the “about the company” website page i saved before the website was taken down, and neither of them list the number.

I’ve asked DVLA for any info they can give me on the previous owner in case that helps, and have asked google maps if they have any information on the company (as they still show it on their map), hoping either of them can help.

I’ve also searched the company directors name and company registered number, as well as on social media per your advice, haven't found them but I've noticed that the addresses for the companies house listed company of the same name are quite far from the two that the dealership had listed, and that the dealers website was first published years before the company registered in the same name, so they may not be the same.

I also have an “invoice ref number” from the sale, and some garage receipts they gave me for work done on the car (that only list the dealerships name as payee) are either of those any use?

[des8]

So it is possible that the company never really existed as a limited company

If it was a Limited Company it must include its registration number (among other things) on invoices.

Is your dealer named as one of the directors of the listed company?

If you cannot trace the company or the dealer you will have problems enforcing any award the court might make in your favour.