Warranty claim - Legal advice required

[SK Motors 4]

Well this brings me back to what Lawgistics advised me on regarding the cluster being removed. I could potentially refuse to repair on the grounds that the customer has interfered with the vehicle ( he emailed me photos of the cluster removed from the vehicle ). 

During the long text message conversations with him over a few days, he said if the gearbox fault was a new issue and wasn't present at the point of sale, then he'd take that as bad luck and wouldn't expect me to pay for it being a second hand car etc. I have copies of these messages.

I think he's really playing the point that he's been deceived/mis-sold the vehicle that had an existing fault and that I can't prove otherwise. 

So for arguments sake, what would happen if I refuse to do anything on the grounds that I can prove this was not an existing fault and the customer has interfered with the vehicle potentially causing more future faults/issues ?

[SC Derby 259]

Absolutely bang on Tradex.

What about offering the customer a good will contribution for him to go and get it fixed as he wishes?

[nic.grev 1]

I may be a newbie but I have a degree in law. Really interesting case here. I personally would fight it, I am not an expert in this area but from what I've seen I think you have a strong case. 

(As others have rightly mentioned) I would say your main defense is that you CAN prove that the fault was not present at the point of sale. You had an inspection done and a service where diagnostics were run that would have found this fault if it were present. I'm not sure what more you could've done to ensure that the car was without fault. Moreover you have the invoice where he states no fault. If you have all the paperwork showing this I cannot see why you would be in the wrong according to the consumer rights act. His argument would then have to be that you are in collusion with the garage that carried out these tests which is absurd and impossible for him to prove but the burden of proof would be on him to prove that.

It gets complicated if you offered a warranty and correct me if I am wrong but no warranty was offered over and above that laid out by the consumer rights act?

Hope this helps,

[Mikey 19]

I think Tradex hits the nail bang on left and centre with his last post!

It sounds like Lawgistic's think there's something in it too... The thing that gets me is what part of this guys brain said oops we have a gearbox fault...Oh I know let's remove the dash binnacle to look for faulty lights that should have told me before I couldn't get it actually in gear!??

It's a bit like removing the back of a wing mirror to investigate for faults as you just hit a gate post you didn't see!

This all sounds a bit dodgy to me, and sounds like he's trying to call your bluff...

[It's me 609]

my advice

think carefully

if you go down the see you in court route the fees for £10,000 + claims go stratesferic when the paperwork is submitted by the claimant but it might have changed (.gov is a bit vague)

your claimant will claim for

loss of use

traveling expenses

car hire

witness costs etc

all the court costs and his claim initially will cost 4.5% of the claim so to start at least £450

these can add up to more than the original claim 

you might think you have a watertight case but you might see the wrong judge on the day who hates the motortrade

if you could call in the expert witness of the bmw technician to stand in front of the judge and categorically say no codes you have a fair chance to prove you did everything by the book but you mention he might have missed it ,but it might not be allowed by the court to call him,i was denied my expert witness 3 months into the case or more to the point i never got no reply even though it was handed in at the court office and entered into the original defence

the guy has a £10,000 paperweight at the minute and whatever happens he wants someone to pay and he doesnt want it to be him

ive said before but will repeat

all customers are liers 

this is the job we are in

i would go the route as i said earlier of lobbing his p/x back checking over the bmw for signs of abuse and charging what i also consider is a reasonable sum of £500 wear and tear and all it encompasses

remember if it goes to court the car will be laid up somewhere and these customers also try to claim for storage (8 months is normal from start to finish

its a lot of money to pay back but if you can afford it get the car back get it fixed and retail it again because trust me here  6-8 months of legal paperwork and the hassles really are not worth it

 

 

i go to court on principle and ive been advised its wrong to do that and i agree to be honest but im a stubborn old mule

Edited November 18, 2016 by s and b

[SK Motors 4]

One final option to throw in then. What if I contact the customer stating this is not a formal offer but while we were communicating amicably and before he sent the email threatening court action, he suggested he would be willing to fit the gear position sensor himself if he could get one.

I think he's some sort of diy mechanic and his dad is a mechanic also.

If I offer for him to get the sensor and fit it himself, then I'll pay for the sensor and if he's happy with that then happy days.

If he refuses, which he's entitled to, then I'm back to offering a refund after having the vehicle inspected etc or refuse to do anything and go to court !

 

[SC Derby 259]

Don't forget they say 'court action' to scare us but who really wants to go to court?

They certainly don't. Even if they win it'd likely be a year before they see any money and in that time they can't use the car. 

 

Court is no win for anyone.

[colnecarcentre 2]

I may be a bit off tangent here, but, just reading the email off the customer he is looking for a bit of a face saver. Both of you will have been told you each have a case, but, both of you have looked at this in the cold light of day and thought..... hang on!

If you are back to getting along, I'd be trying to chat with him, off the record, be dead straight and ask two questions, 1.... Does he still like the car.... if he's fallen out with it, you are going round and round in circles anyway, it just becomes a thorn in everyone's side. 2, being reasonable, as you are both attempting to be, what does he seriously consider to be acceptable for you both to put this to bed and move on.

If you get a response that you feel is acceptable to the pair of you, bite the bullet, but, ask him if he would put it in writing to you via email that x and y will resolve the situation.

I've only ever once had to go to court in 32 and a bit years of being in this job.... we won, but, it is not something I'd readily repeat.

Good luck however it transpires though.

[SK Motors 4]

So I made an informal offer to the guy to pay for the required parts at some £320 if he was willing to fit himself as he first suggested.

This is what it got back from him:

The car needs to be in working order and if something other than the sensor is faulty or broken then it needs to be fixed. I'm not prepared to agree for just the sensor to be replaced as it may not fix the car. (Although it might do in which case we are both happy) I can't take that risk. I am covered by the consumer rights act so whatever the cost it needs to be fixed. I have the right to a faultless car as stated in the sale agreement and it would be stupid of me to agree to just the sensor and it turn out to be a gearbox at 7k or the pump. Obviously they are worst case scenarios but it's still a risk I can't take.

 

[SC Derby 259]

He has a right to a fault free car WHEN he purchases it. If you can prove it was fault free at that point then you are in position of strength.

you must correct him on that 

[betginge 73]

1 hour ago, SK Motors said:

So I made an informal offer to the guy to pay for the required parts at some £320 if he was willing to fit himself as he first suggested.

This is what it got back from him:

The car needs to be in working order and if something other than the sensor is faulty or broken then it needs to be fixed. I'm not prepared to agree for just the sensor to be replaced as it may not fix the car. (Although it might do in which case we are both happy) I can't take that risk. I am covered by the consumer rights act so whatever the cost it needs to be fixed. I have the right to a faultless car as stated in the sale agreement and it would be stupid of me to agree to just the sensor and it turn out to be a gearbox at 7k or the pump. Obviously they are worst case scenarios but it's still a risk I can't take.

 

Just tell this burk that he needs to get the car to you for repair and you will fix it or bring it back to you for a refund under the terms you suggested (which is fair IMO)

Balls in his court, or he can go to court which he will not do in a month of sundays.  He will get that car back to you one way or another when he realises he is backed into a corner. 

[Ocsltd 133]

35 minutes ago, betginge said:

Just tell this burk that he needs to get the car to you for repair and you will fix it or bring it back to you for a refund under the terms you suggested (which is fair IMO)

Balls in his court, or he can go to court which he will not do in a month of sundays.  He will get that car back to you one way or another when he realises he is backed into a corner. 

I completely agree with this. You've tried being reasonable, but he is being a cock. He thinks he's got you over a barrel because he keeps quoting his consumer rights. But, I would like to know where it's says in his consumer rights, if you discover a fault, you should take it upon yourself to start removing parts to investigate further. His downfall is removing the instrument cluster. He is simply trying it on, and will soon back down once he realises you're not a push over.

Although, I would personally refund him, less expenses. You just know if he gets so much as a puncture in a few months time, it will be your fault. 

[Rory RSC 596]

Maybe just try this something like this rather than texting back and to. 

 

 

Under the consumers rights act you can't pick and choose the sections you want to apply to you and forget the bits that give me, the dealer some protection.

i don't strongly believe or suspect the fault was not present at time of sale I have documented proof of this to be the case along with a written independent report. 

In the interests of moving this along I have outlined 3 options. 

1 amount £x sent to you sort it yourself full and final dealt with 

2 return car to my premises for me to carry out a repair and diagnosis at no cost to you. Car will be repaired.  You will be responsible for any recovery charges.

3 car is returned to me and a refund given with deduction for use damages etc in the region of £x500/200/300

 

Ultimately I am trying and still willing to help you and this situation is taking longer to resolve with the   back and forth between us. 

I remain reasonable, open and willling towards reaching an amicable conclusion and I want this matter brought to a close for both of us promptly. 

 

 

 

 

[betginge 73]

11 hours ago, Rory RSC said:

Maybe just try this something like this rather than texting back and to. 

 

 

Under the consumers rights act you can't pick and choose the sections you want to apply to you and forget the bits that give me, the dealer some protection.

i don't strongly believe or suspect the fault was not present at time of sale I have documented proof of this to be the case along with a written independent report. 

In the interests of moving this along I have outlined 3 options. 

1 amount £x sent to you sort it yourself full and final dealt with 

2 return car to my premises for me to carry out a repair and diagnosis at no cost to you. Car will be repaired.  You will be responsible for any recovery charges.

3 car is returned to me and a refund given with deduction for use damages etc in the region of £x500/200/300

 

Ultimately I am trying and still willing to help you and this situation is taking longer to resolve with the   back and forth between us. 

I remain reasonable, open and willling towards reaching an amicable conclusion and I want this matter brought to a close for both of us promptly. 

 

 

 

 

Well put Rory 

Agree with this stance, but just remember you got rights to, Firm but Fair 

[SK Motors 4]

Thanks for all the opinions and advice from everybody, it's been very helpful. 

I'm going to put an email to him tomorrow but due to what others have said on here I'm not going to offer to repair it. I think it's obvious that even if I were to repair the suspected fault, it's highly likely he's going to find something else to complain about, related to this fault or otherwise. 

He's obviously of the belief that the consumer rights act is fully on his side and I can just see no end of trouble from him in the future. You can imagine him out and about abusing this car in the mistaken belief that if he breaks something it doesn't matter as I have to pay for it !!

I will be offering him a refund minus expenses/wear and tear etc on the basis that the vehicle is returned to me for inspection before any money is paid to him.

This has taken up so much of my time already that I'm now of the opinion that if my offer isn't acceptable and he wants to take me to court over it then so be it, I'll defend accordingly. 

[andymc1973 199]

why did he pull out the binnacle?

[Ocsltd 133]

21 minutes ago, SK Motors said:

Thanks for all the opinions and advice from everybody, it's been very helpful. 

I'm going to put an email to him tomorrow but due to what others have said on here I'm not going to offer to repair it. I think it's obvious that even if I were to repair the suspected fault, it's highly likely he's going to find something else to complain about, related to this fault or otherwise. 

He's obviously of the belief that the consumer rights act is fully on his side and I can just see no end of trouble from him in the future. You can imagine him out and about abusing this car in the mistaken belief that if he breaks something it doesn't matter as I have to pay for it !!

I will be offering him a refund minus expenses/wear and tear etc on the basis that the vehicle is returned to me for inspection before any money is paid to him.

This has taken up so much of my time already that I'm now of the opinion that if my offer isn't acceptable and he wants to take me to court over it then so be it, I'll defend accordingly. 

For what it's worth, I think this is the right call. 

[SK Motors 4]

1 hour ago, andymc1973 said:

why did he pull out the binnacle?

He said once he realised there was a fault with the gearbox, he searched some forums and realised there should be a warning light on the dash indicating a fault and there wasn't. 

He said it should light up when the ignition is switched on then go out after a few seconds which it didn't do.

He then said he removed the binnacle to investigate and found the warning light to be taped over with black electrical tape which in his mind proves this fault was present when sold and had been hidden from him.

I can't get through to him that even if this light was covered over, it would have done nothing to hide the fault with the gearbox and wouldn't have got him 3 hours home !

I've also now got confirmation from the Bmw specialist who inspected it before sale that the diagnostic check found no fault codes and they also road tested the vehicle with no faults found. 

[SK Motors 4]

This is the email I've sent to him:

Dear Mr xxxx,

I'm writing in response to your email dated 15/11/2016.

Following the legal advice I've sought and also advice from other dealers on how they would deal with this situation, I have the following to say.

You state it is up to me to prove the fault wasn't there at the time of purchase. I can easily do this in a number of ways:

1) When the vehicle went in to xxxx xxxx Vehicle Services on 02/07/2016 @ 79061 miles, it was subject to an Inspection 1 service. Part of this service includes a diagnostic check on the vehicle and any fault codes stored related to the SMG gearbox or otherwise would have been reported to me on the invoice which they were not. The vehicle was also road tested by xxxx xxxx Vehicle Services with no faults reported with the SMG gearbox or otherwise.

2) When the vehicle was returned to xxxx xxxx Vehicle Services on 13/07/2016 @ 79075 miles to have the rear brake lines replaced and the rear exhaust flange welded up, again the vehicle was road tested as it was driven elsewhere by them for the exhaust to be welded and no faults with the SMG gearbox or otherwise were reported.

3) When you visited me on 24/09/2016 to view the vehicle, you had ample time to fully inspect the vehicle. I drove the vehicle myself to demonstrate to you how the SMG gearbox works, the different modes etc and then you test drove the vehicle yourself. You purchased the vehicle with it showing 79,085 miles and never expressed any concerns or highlighted any issues. The invoice you have a copy of clearly states "The buyer has test driven the vehicle and is happy that no faults are present at the point of sale".

4) You drove the vehicle home to Barnsley, some 2.5 - 3 hours drive from me without fault and approximately 6 weeks had passed until you first contacted me on 04/11/2016 informing me of an issue with the SMG gearbox.

You state that as a trader I have "a responsibility to ensure goods that are being sold by yourself are either as stated above or any faults are made known to the consumer". I've gone above and beyond my responsibility to do this by having the vehicle subjected to the Inspection 1 service at xxxx xxxx Vehicle Services and having all know faults rectified before sale and also the vehicle was given a new mot to ensure it's road worthiness. There were no known faults with the vehicle to make known to you, the consumer.

I'm not prepared to have the vehicle repaired in the short timescale you're demanding as due to the nature of the vehicle it could well need further investigative work. You've also removed and refitted the instrument cluster without my consent and without using a reputable garage/business. I'm informed that the instrument cluster on these vehicles are very sensitive and any damage while removing/refitting could cause all sorts of faults in the future.

You expressed to me through text message conversation ( which I have copies of ) that if the fault was diagnosed as the Gear Position Sensor then you would be happy to fit these parts yourself if you could get hold of them so I propose to offer the following:

1) I will pay for the required parts namely the Gear Position Sensor, if you are still prepared to fit it yourself as you offered. This would be in full and final settlement of the issue.

2) As a gesture of goodwill and something I'm not legally obliged to do, I would be prepared to offer you a refund for the vehicle. If you choose to do this, the vehicle must be returned by you directly to xxxx xxxx Vehicle Services at a date and time convenient for everyone involved. The vehicle will be subject to a full inspection to look for further issues or damage. If the vehicle is of satisfactory condition and without further issues or damage then a refund will be issued to you by bank transfer which is the same method as you used to pay me for the vehicle. Under the Consumer Rights Act 2015 I'm entitled to a deduction of the refunded amount for wear and tear and also the extra owner on the V5. I would draw your attention to The Consumer Rights Act 2015 Section 24 sub-section 8, with regards to sub-section 10a.

The selling price of the vehicle was £9730 minus your Mercedes taken in part exchange which I allowed £1000 for. As I have sold your Mercedes I cannot offer it back to you, however I'm legally entitled to give you back the part exchange value which in this case was £1000.

There is no set figure in law to deduct for wear and tear/use of the vehicle and the extra owner on the V5 but it's been suggested to me that a fair amount would be £500 plus £295 for the extra owner on the V5 so a total deduction of £795. The total refund paid back to you on satisfactory inspection of the vehicle plus all relevant documents/paperwork/keys etc being returned would be £8935. I would need you to confirm the mileage on the vehicle before acceptance of this offer.

 

[betginge 73]

Letter sounds fine to me, not sure about the consent for removing the cluster. Remember this is the customer's car, that line comes across that he needed to ask you to do what he wants to his own vehicle. 

Maybe just stick to the point that he removed the cluster which could cause damage, he was not technically trained and has interfered with the vehicle which is why you're not prepared to have the vehicle repaired yourself, but are willing to cover the cost of the part he suspects it is ect as mentioned (or Refund)

I suspect he will  want to keep the car and have it repaired, I don't think he wants to go down the refund option once he is aware you have sold his swapper and you can take £750 off him which he is going to find it difficult to argue against without taking you to court at very high risk of losing that point. 

[It's me 609]

hi sk sounds good to me but i would have sent it recorded delivery rather than wired

[Kingsbridge Autos 2]

Great thread OP, and great email back. 

 

Make sure you request a read receipt so you know he/she has read it. 

[SK Motors 4]

I've had a response from the customer this evening and wanted to update everyone.

After the email I sent to him on Sunday, he decided to go and buy the required parts from Bmw on Monday morning.

He's spent the last few days fitting the parts himself and is happy that this has in fact cured the fault.

He's now happy to accept my offer of paying for the parts in full and final settlement of the issue and will put that in writing to me.

I'd like to say a massive thanks to everyone that offered me help and advice with this issue.

It's very much appreciated.

[Fixedgear 4]

On 24/11/2016 at 11:28 PM, SK Motors said:

I've had a response from the customer this evening and wanted to update everyone.

After the email I sent to him on Sunday, he decided to go and buy the required parts from Bmw on Monday morning.

He's spent the last few days fitting the parts himself and is happy that this has in fact cured the fault.

He's now happy to accept my offer of paying for the parts in full and final settlement of the issue and will put that in writing to me.

I'd like to say a massive thanks to everyone that offered me help and advice with this issue.

It's very much appreciated.

Great result and great to read everyone's input on this, it's been good to soak it up.

[williamblackshaw 43]

Refund and forget. Take the rough with the smooth.