/ Motoring

Brief Cases: faulty second hand car fiasco

Here’s how we helped a member get a refund after the second-hand car they bought broke down on the drive home.

A Which? Legal member bought a second-hand Citroen Picasso C4 from a small independent dealership in March 2017, costing £2,700.

It had 72,000 miles at the point of sale, and appeared to be in good condition.

The member couldn’t test drive it because the dealer didn’t have plates available, so instead they went ahead with the purchase in good faith.

‘Multiple faults’

During the drive home from the dealership, the car broke down as a result of multiple faults , so the member contacted us for advice.

After talking to us, the member tried to reject the car and get a refund, but the dealership refused. This meant that the member was forced to issue proceedings in the small claims court.

After 12 months he had his hearing and was awarded the full amount by the judge, including the costs of going to court.

Not of satisfactory quality

Because the car he’d bought wasn’t of satisfactory quality during the first 30 days of purchase, the member was entitled to the short-term right to reject.

After the dealership refused to co-operate, we advised that they should get an independent report to confirm the faults. The dealership also had its own report done by a mechanic that it used regularly for MOT tests, which was not considered to be ‘independent evidence’.

We then advised them on the small claims court procedure, from how to issue proceedings to how to prepare for the final hearing with the judge.

How to complain about a second-hand car to a dealer

What does the law say?

According to the Consumer Rights Act 2015, goods should be of satisfactory quality.

When exercising the short-term right to reject, in this case the burden was on the consumer to provide evidence of the fault, as the dealer outright refused to engage with the complaint.

A judge would have to decide, on the balance of probabilities, whether or not the car was to the standard it should have been at the point of sale.

It was likely to have been a deciding factor in the judge’s decision that the member’s report was an independent opinion, and that the car broke down so soon after he bought it.

Have you ever ended up in the small claims court after being refused the right to reject?

Comments

This case features on page 47 of the March issue of the Which? magazine.

In the introduction we are told: “When exercising the short-term right to reject, the burden is on the consumer to provide evidence of the fault.” I was surprised when I read the magazine article.

On the Which? website, on the page relating to problems with secondhand cars we are told: “During the first six months after purchase, it’s the responsibility of the seller to prove the fault wasn’t there, not for you to prove that it was.” https://www.which.co.uk/consumer-rights/advice/the-second-hand-car-i-bought-has-a-problem-what-are-my-rights

@which-legal – Please you explain these seemingly conflicting statements.

Hi wavechange, this was a very good point, so I had a chat with the team. They said:

You’re right – the dealer should have been responsible for proving that there were no issues with the car because the fault developed in the first six months after purchase. However, in this case, the car dealer refused outright to engage with the complaint. This meant that our member had no option other than to take the matter further himself to reclaim his costs. This could have been explained better in the magazine piece, so thank you for the feedback!

Thanks for the prompt reply, George. The introduction above still says: “When exercising the short-term right to reject, the burden is on the consumer to provide evidence of the fault.”

As I read the Consumer Rights Act, during the first 30 days the consumer has the short time right to reject. However, to exercise this right (as opposed to choosing a repair or a replacement) the customer needs to show there is a “fault”; the term “fault” means a non-compliance with the “core goods rights” :
“Key rights about the goods, under the Act
3. The goods must be of satisfactory quality;
4. The goods must be fit for a particular purpose the consumer has made known
5. The goods should match any description, sample or model by reference to which they were supplied
These rights are referred to as the consumer’s core goods rights in this guidance.

After that 30 days the remedy is a repair or replacement. In the latter case any fault is presumed to be present at the time of delivery.

Perhaps Which? would say if I’ve got this all wrong 🙁

The table on P40 of the Consumer Rights Act guide (https://www.businesscompanion.info/sites/default/files/CRA-Goods-Guidance-for-Business-Sep-2015.pdf) summarises the responsibilities for showing there is a “fault”, covering the first 30 days, 30 days to 6 months, then up to 6 years (Scotland 5). In this context, “fault” means a non-compliance with the requirements of the Act.

“Exception to the 6 month rule:
The refund can be reduced to take account of the use that the consumer has had of the goods where the consumer exercises the right to reject in the first 6 months, if the goods they are rejecting consist of a motor vehicle.
Example 31
A consumer buys a car but immediately experiences a number of problems. A number of repairs is carried out but none of these fully fixes the vehicle and the faults reappear each time after a few days of driving. The trader agrees that it is unlikely that faults will be fixed and the consumer decides to reject the car – it’s obviously a “lemon”.
Although the car is less than 6 months old, the trader may reduce the refund to take account of the use that the consumer has had from the car.
When assessing the use, the trader would have to consider the actual use the consumer had had from the car. In this instance because the car had been in and out of the garage there are clearly periods when the consumer had no use of the car at all.

Great work by Which but what I find amazing is why would anyone buy a car without test driving it first. I recently took out a Vauxhall Antrara. 15 plate, 35,000 miles in mint condition and at the main dealers. It ticked all the boxes but I knew I wasn’t buying it the moment I went to find third gear, or should I say try and find third gear. Most gear levers are spring loaded to both left and right these days so neutral is always neutral if this makes sense. The Antara’s gear lever wasn’t spring loaded and like something I had 30 years ago. You just couldn’t tell if you were going into third or fifth and the same with second and fourth. The car drove like an old car. It was one of the worse cars I had driven in a long time. I bought a Kuga instead. In this particular case with the dealer not having any trade plates, I would have walked and gone somewhere else.

Nottinghamian says:
11 March 2019

I think George Martin’s reply to Wavechange is very disappointing. This is a Consumer magazine giving a politician’s answer. Surely the reply should reflect what appears to be a simple truth and should have been along the lines of “we made a mistake and will correct it”. Trying to explain the error away by referring to the details of the case, when the error is one of principle, is just not good enough!

Hi, I’m sorry you feel that way. This was the response given to me by the team which I’ve passed on, and they do acknowledge that Wavechange was correct, and that the piece could have explained this much better.

@wavechange – I’ve amended the text so it makes it clear why the burden, in this case, was unfortunately on the customer.

Thanks for reminding me about this, Nottinghamian.

@gmartin Hi George – The introduction still states: When exercising the short-term right to reject, the burden is on the consumer to provide evidence of the fault.” I’m no legal expert but but this seems misleading.

Try giving the page a hard refresh, wavechange. It’s updated for me 🙂

I had not seen your reply or updated page when I posted, George.

The update states: “When exercising the short-term right to reject, in this case the burden was on the consumer to provide evidence of the fault, as the dealer outright refused to engage with the complaint.”

The Which? website states: “During the first six months after purchase, it’s the responsibility of the seller to prove the fault wasn’t there, not for you to prove that it was.” There is no indication here that the legal position is different if the company refuses to engage with the purchaser.

Some of us have repeatedly asked for someone from the Which? Legal team to make an input to Convos.

Those requests weren’t lost on us, @wavechange, and this is something we’re hoping to do with this type of post in the future. No time frame on this yet as I’m working with different teams’ schedules, but in the mean time we continue to ask and chase for replies from legal. More to come here.

Thanks Jon. Some of us are very interested to understand our legal rights on consumer issues and the better we understand them the more chance we have of providing useful advice to other users of this website, and to the people we know.

I think it is a little unfair for George to be expected to explain what seems a complex issue when that could be done by the author of the article.

Hi Chirag. @chiragkhetiya – Last year, we were invited to contact you and your colleagues for advice on legal matters, and I recall you posted in an earlier Convo about cars.

My post at the top of this page suggests a discrepancy between what is on the website and what we have been told in this Convo. I still cannot find anything on the website that says that the customer must prove that a fault exists within six months of purchase. In the example we have been given here we are told that the car broke down on the journey from the dealership.

Our ‘regulars’ here all try and help other users of this site but understanding the law can be a bit of a challenge. 🙂

Which? seem to be quite correct about this point of law, in my view.

The Consumer Rights Act 2015 requires goods supplied to meet particular contract requirements:
Key rights about the goods, under the Act
3.The goods must be of satisfactory quality;
4. The goods must be fit for a particular purpose the consumer has made known
5. The goods should match any description, sample or model by reference to which they were supplied
These rights are referred to as the consumer’s core goods rights in this guidance.”

The guide to the act goes on to explain what happens when things go wrong, and explains the meaning of “faulty”:
……goods failed to meet the core goods rights under the Act (using the shorthand of goods being faulty)………”
So a fault can be a physical fault, or goods not meeting their description, not fit for the purpose stated or any other failure to meet the “core goods rights”.

In the first 30 days, a customer has the right to reject a goods – return it for a full refund. However, they, the customer, need to show why they are rejecting it – what the “fault” was that caused it to fail to meet their core rights.

In the following 5 months the customer can no longer reject the goods initially for a full refund. The fault they demonstrate that gives rise to the complaint will be assumed present upon delivery, and if accepted, they can choose to have a repair or a replacement. If that first attempt to repair or replace does not resolve the “fault” then they are entitled to reject the goods and receive a full refund, or keep the goods at a reduced price, except in the case of a car. In this case, if rejected, a deduction can be made for the use, if any, that the customer has enjoyed.

Well, that is my understanding of a consumer’s rights. You cannot simply reject something you have bought without showing due cause. Maybe Which? Legal could put me right if I am wrong.

@gmartin, I think Which? Legal should give their views here on general legal issue. Perhaps they would comment on my interpretation of the CRA so we might better understand the basis on which a complaint can be taken to a retailer.

I’ll be passing this on, Malcolm. We all want to see the different teams here active on Convo – as you know, we’re working on making that happen.

Copied from the Lobby:

On the 15th February I posted this in the Barry Beavis Parking topic:

I wasn’t asking for “legal advice on specific issues”. What I was asking for is a general analysis of the legality of penalty charges in the case where someone has paid for the parking but entered the wrong reg number – an increasingly common error, it seems.

Those links, (which also appear in the header, I’m very glad to see), are invaluable sources of information. But they don’t deal specifically with what does seem to be a very common mistake, judging by the frequency with which it crops up on this topic.

I appreciate the concerns on legal advice but it would help a lot of folk if the question I asked could be dealt with.

It seems a fairly simple question to the Legal folk, and it would avoid a great deal of duplication if an answer could be forthcoming.

Which? seem to be unwilling to respond to very many questions that are asked in Convos. Maybe they see Convos as some pastime to occupy those with time on their hands, with no real exposure to consumers, or even the membership, at large. So why spend effort on a minority? Maybe they are right.

But then why invest money in the Convo team? And then not give the Convos the support they ask for and deserve?

You’ve answered your own question there in a way, @malcolm-r: the reason Which? is investing money in the Convo team is exactly because the Conversations haven’t had the support they ask for and deserve.

The goal is to make this a space where people can easily find answers they’re looking for, from us or from others in the community, and be a space where people and Which? can proactively work together on the issues and ideas which matter to them. This won’t be an overnight shift, but it why we are here as a team, and will bear fruit in the near future.

I’m glad to hear that Jon. We’ve had many years without responses to direct questions, generally, from the Which? organisation. Seemingly simple legal questions figured recently.

richtee says:
10 May 2019

Hi all hopefully I can clear up some of the queries above.

Under the CRA the purchaser generally has to prove that the fault existed at the point of sale if you are looking to exercise your right to reject or obtain a refund. Within the first 30 days if a fault occurs, the presumption is that the fault existed at the point of sale and you can exercise your right to reject. The seller would have to prove that this was not the case in order to avoid refunding rather than the buyer having to prove that it did.

If the fault occurs within the first six months then the presumption still exists that it was present at the point of sale and the burden of proof remains on the seller to prove otherwise but at this point you have to allow an attempt at repair before exercising your right to reject.

Once you hit the six month stage the burden of proof shifts to the buyer and the buyer is required to provide evidence that the fault existed at the point of sale if they wish to exercise their right of repair or reject.

You can still obtain a refund etc after the six months for an unsatisfactory quality motor vehicle but the consumer would have to prove that the underlying fault was present which could be difficult.

Hope that helps.