Fiesta 2008 Duratec 1.4 Diesel - Smoking When Warm

[The Dark Knight]

I should also add that he will claim the car was fine when handed over to you and will argue your test drive is proof of that because you would have not accepted the car at the time if it had that fault. He has to prove it was fine when handed to you as opposed to you having to prove it wasn't.

A court may see such a fault as being acceptable on a car with such high mileage and no service history. An independent report by a mechanic should diagnose the fault and may be able to tell how long it has been present. I am not up on mechanical things though lol.

[sazandy]

I am going to Pursue this ALL the way. Can't afford not to. Do you think its worth putting everything in writing, eg. letter before action.

I have filled in a form on the local trading standards website explaining the situation and the response I got. It says someone will be touch within 3 working days, don't want to wait 3 days for them to say I should of sent a letter.

Thanks again for all comments

[GingerFlame]

Put everything in writing, that's the advice he gave me. Write an email to the dealer stating everything he's said above and send it recorded. Keep a copy for yourself

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[The Dark Knight]

Righto. How much did you pay for the car? Please also note that time spent requesting or carrying out repairs and litigation is not to be counted by the court when taking into account the length of time that you have had the car.

Basically, you need to begin by writing to him (type it up for clarity) and post it by RECORDED MAIL (he can't claim not to have received it then.) You will request a refund (reject the car) or in the alternative a repair of all faults entirely at his expense as per your statutory rights under SOGA. You will also ask to be re-imbursed for the money you have had to pay up for other work as a result of the crap car (make copies of the receipts and send them with the letter). Tell him you will pursue the matter to small claims court if needs be. Give him 14 working days to respond.

Your next step in the absence of a satisfactory response is to send a letter before action and again allow 14 days to respond. The next step is to submit an N1 claim form and list everything you are claiming for. This will be the refund of the purchase price and any costs you have incurred. In the alternative, you will be claiming a repair at his expense so it would be wise to obtain an independent repair estimate and submit this to him with your letters. You can also save such a report/quote for court purposes. It then goes to court unless he caves in beforehand.

The sale by description is a very strong argument for you which directly ties in with the quality argument. You need such ammo because I hasten to add this:

Thain v Anniesland Trade Centre

Renault 19

80,000 miles

5 years old

£2995

Not driveable after 2 weeks, (one source says 9 weeks)

The Verdict in Thain

“Even a negligible degree of durability may not represent unsatisfactory quality where the secondhand car supplied is as old and as heavily used as the Renault had been. The plain fact is that, given the Renault's age and mileage when supplied, its durability was a matter of luck. Durability, in all the circumstances, was simply not a quality that a reasonable person would demand of it.”

[sazandy]

Paid £2200 was advertised at £2295 but knocked him down

Surely can't claim for the money I paid to get the cam belt done can I?

[The Dark Knight]

Paid £2200 was advertised at £2295 but knocked him down

The small claims court fee is £170 for claims between £1500 and £3000

You get that back if you win.

[sazandy]

thats fine, as long as we win

[The Dark Knight]

Ok, I will summarise things for you. You do not have to cough up court fees for him if you lose.

I have summed up the strong points for you already and how to go about it but we were taught to argue it from the oppositions side too. If met with this, I would argue that it was fine when handed to you otherwise you would not have signed on the dotted line. I would also cite the Thain case which shows that in theory you have no argument on a car of that age and mileage.

Then again, each case is judged on its own merits. Also remember that just because cases such as Thain exist in his favour does not mean he knows about them or how to utilise them.

1: He may lurk on here and get a free heads up in this topic (ridiculously unlikely)

2: He may have skills and know this already (given his swearing and bad attitude I think he lacks sufficient intelligence for that)

3: He may know someone who can help him for free (more likely than the above)

4: He may pay a solicitor to sort this for him (possible but it will cost him more to employ a solicitor than cave in to your demands)

In view of that, it is ultimately up to you. I would go for it if faced with a big repair bill. He may even cave in to save hassle!

[sazandy]

Thanks again, I'm halfway through the letter at the moment, will post that of tomorrow, recorded 1st class. Are we ok to still drive the vehicle?

[Lenny]

Thanks again, I'm halfway through the letter at the moment, will post that of tomorrow, recorded 1st class. Are we ok to still drive the vehicle?

I'd copy the letter and send it to yourself via first class as well.

This way you have a receipt with two tracking numbers as well as one of the corresponding duplicate letter with tracking numbers proving they were delivered and you got your copy sealed evidence

[sazandy]

Will do that, thanks again.

Will keep you posted

[The Dark Knight]

If at all possible, you should not use the car. It is not the be all and end all but it may be frowned upon if you continue to use it. I can hear them now... "So Mr X, you have a car which you wish to reject as it is clearly not of satisfactory quality. Please remind the court when you stopped using the car"

"I didn't"

"Oh you didn't stop using it! This car is not as unsatisfactory as you claim is it Mr X? In fact you saw fit to keep driving this car despite wanting to reject it! The only thing unsatisfactory here is your claim Mr X" Etc.

I exaggerate for dramatic purposes as the above reads like cross examination in a trial and a small claims court is a much more informal setting and a world away from that. I just thought it might give you a heads up as to how it MIGHT be viewed.

[GingerFlame]

If at all possible, you should not use the car. It is not the be all and end all but it may be frowned upon if you continue to use it. I can hear them now... "So Mr X, you have a car which you wish to reject as it is clearly not of satisfactory quality. Please remind the court when you stopped using the car"

"I didn't"

"Oh you didn't stop using it! This car is not as unsatisfactory as you claim is it Mr X? In fact you saw fit to keep driving this car despite wanting to reject it! The only thing unsatisfactory here is your claim Mr X" Etc.

I exaggerate for dramatic purposes as the above reads like cross examination in a trial and a small claims court is a much more informal setting and a world away from that. I just thought it might give you a heads up as to how it MIGHT be viewed.

What would we all do without this man? ^^^^

Sent from my HTC One_M8 using Tapatalk

[sazandy]

ok, thanks will leave it on drive as much as possible

[The Dark Knight]

I don't have all the answers believe me but I will help with what knowledge I have retained in my brain and can dig up from books etc.

Or as I might say in TDKR: "A hero can be anyone, even a man doing something as simple and reassuring as placing a coat around a young boys shoulders to let him know the world hadn't ended." :P

[sazandy]

Hi, just an update, the letter wasn't delivered today but a calling card was left, so hopefully he collects it.

Not sure what to do if he doesn't? I'm guessing wait the 10 working days and send another letter stating that i'm taking it further.

Thanks again for all the help

[The Dark Knight]

The onus is on him to collect his mail so just keep your receipt with the tracking number on it as proof.

[sazandy]

Hi, just an update on this problem.

The 1st letter is still waiting to be collected at the post office, after 10 working days we sent the 2nd stating we will be taking things further if we don't hear anything. This letter had no tracking after being posted (will be taking this up with Royal Mail), so today I sent a 3rd letter, enclosing the 2 other letters, stating that if I don't hear from them within 5 working days we will be filing a court claim.

We also got in touch with Trading Standards, but haven't heard anything more from them after sending them copies of all the paperwork. I did tell him the 1st letter hasn't been collected, he wasn't surprised, he said normally anything recorded is a letter a dealer wouldn't want.

The car has not been driven since last posting on here.

5 working days and counting

Thanks again to 'The Dark Knight'

[The Dark Knight]

Thanks for the update. He certainly isn't doing himself any favours here! This will be useful to you so keep a nice diary of eveything.

[Colin1969]

Return the car ? Any warranty ?

[sazandy]

Hi, another update, the 3rd letter was delivered & signed for but to next door (the dealers forecourt is to the side of a separate wedding car hire business) & it was their surname that signed. I have spoken to them before trying to get more details about the dealer that we bought the car from. He rents the land to the dealer, I asked if he knows what the garage is called, he said a different company name to the one on the invoice. Also I asked if he knew of 'James' the person who sold the car to us & he said there was a couple of guys working there but wasn't sure of their names etc.

Will ring them Wednesday to check he took the letter round etc.

Looking at the small claims court side of things, with only having a first name, 3 mobile numbers & a company name & address (which according business to next door is no longer named that), are we likely to get anywhere?

They are still advertising under the same user id on eBay

[Garryboy1888]

What about eBay. Whats their stance on classified car ads and miss selling.

Sent from my Nexus 5 using Tapatalk

[The Dark Knight]

There's a chance the court might grant them more time to respond I suppose but you've done all that can reasonably be expected. If he fails to respond to court letters (once you've issued the claim form), he is risking judgment in default. This means you win because the court thinks you have a good argument coupled to the fact he hasn't bothered replying to anything. He then has a number of days to obtain legal advice if he wants the judgment overturned and contested properly like you've been trying to sort from the outset. Assuming he doesn't and depending what the court awards, you may be able to deploy bailiffs to recover items from him that will amount to what you are owed. This is speculation at this stage but the court will make things much clearer in due course.

[The Dark Knight]

MAJOR UPDATE TO THIS TOPIC GUYS

sazandy has been in touch to say this case has finally been settled. The seller who as we know from this topic did not want to know, wanted mediation because he was struggling for money and could do without going to court etc.

The mediator went back and forth for 45 minutes and they reached an agreement (failure to comply with this would result in an application for a court order I should add) for him to take the car back and give a refund less a deduction (unspecified) to reflect that the problem was not reported within 30 days (it does help your case the sooner you report it). It was 5 days over.

However, sazandy got the £170 small claims court fees back which is a bonus. The mediator advised that if they had gone to court, the seller would have to make weekly payments following a defeat as he is struggling for money. I believe that an out of court settlement like this does not give him the option of weekly payments so he would have to raise a lump sum from somewhere.

Finally, the mediator advised that had it gone to court, sazandy had no proof that it was faulty. This would be because there is no independent report from a mechanic diagnosing the fault.

All in all, we have a victory for the consumer and it is another case of a dealer boasting about it not being their problem and believing that he would not be challenged. He caved in out of court because he could not afford to lose.

Please bear this in mind for future reference if you have a problem with anything consumer related. It is relatively cheap going through small claims court (£10k max for small claims) and sazandy paid £170 which he got back.

This problem started way back in July but was pursued to the bitter end and resulted in victory. The reason dealers usually win is because many people do not want the hassle of it all. This is a prime of example of why it should be pursued.

In this case, I could see arguments from the dealers side due to the mileage and lack of service history as per the Thain case I cited. If you have a car in better condition that a dealer is not interested in sorting a fault out on, just imagine how much stronger your argument would be.

I'm always happy to help and advise if you need it.

Dave

[jeebowhite]

A great result, though I hasten to wonder what the actualy result was? all repairs? car returned?