advice on small claims when rejecting under SOGA

[tewton]

Sorry this is my first post but I guess that is the nature of this site, anyhoo I need some advise regarding the SOGA and small claims after rejecting a vehicle - to cut a long story short...

 

28/06/13 - bought a VW T5 2008 Registered van three weeks ago for £8,200 (bank transfer) that was sold as a great van with good engine, no problems etc from an independant used dealer near Bradford.

 

28/06/13 - during 300 mile journey home to Exeter an engine noise and judder under accelleration developed, immediately reported to dealer who advised to continue home and warranty would cover problem.

 

01/07/13 - spoke to the VW dealer in Essex who serviced VAN throughout life and found they'd quoted for a camshaft replacement (~£2k job) two months ago and the then fleet owner decided to dispose of van through used market rather than have work done.

 

01/07/13 - advised this information to the dealer who sold me the vehicle, found that warranty included with sale had a £1k claim limit. offered to accept a main vw dealer repair in Exeter so that I would have a local warranty for work done, dealer who sold vehicle wouldn't pay because they could have it done a lot cheaper locally. Reminded the dealer I'd fully made them aware before travelling to purchase I lived 300 miles away and would not return for a repair.

 

02/07/13 - dealer who sold van agreed to refund but advised they'd used my money to buy more stock and needed a week to obtain funds.

 

02/07/13 - sent letter to dealer stating rejection under SOGA via recorded delivery stating unless refunded in 7 days I would start court proceedings. I'd offered to drive van back to receive refund.

 

09/07/13 - dealer still said no funds for refund, asked for more time, didn't seem to care when I said I was going to have to start court claim.

 

10/07/13 - started engine to check battery ok with on with van on drive, engine management light indicated take to garage to rectify exaust emission issue. advised dealer they would need to collect van now.

 

11-17/07/13 - many calls to dealer who sold vehicle who either gave false platitudes or lied and are now not answering phone to me. I know they are still trading because I've found and spoken to their supplier to confirmed they are.

 

18/07/13 - final letter sent stating 7 days to send cheque refund or I would initiate small claims to recover all of my costs - purchase price, travel to dealer, diesel home, insurance, court costs, interest, etc. dealer received and signed for this the following day

 

Question 1 - under the small claims court it appears I need to seek the judges permission to present expert evidence?

 

I have spoken to VW Van center in Exeter and due to the nature of the camshaft fault needing some of the engine to be removed to be properly diagnosed this will cost £390 in labour and parts (gaskets need to be replaced when engine is taken apart, hence parts cost).

 

I am worried if I pay for this to be done in advance of the claim the judge might say it was an unreasonable cost and whilst make a judgement in my favour he could choose to not assign this cost to the defendant because I hadn't asked his permission before having the work done?

 

Obviously on the other hand I've had this van on my drive since the end of June and it was meant to be my daily car so I don't want to delay things any further

 

Question 2 - The road tax runs out in August but the dealer hasn't sent me the V5, second key or warranty paperwork as promised so I'm not sure what to do if this is ongoing after the road tax runs out?

 

 

Edit: Attached the letters and evidence I have started to document for my claim for anyone interested in reading them...

[ATTACH=CONFIG]45348[/ATTACH] [ATTACH=CONFIG]45349[/ATTACH] [ATTACH=CONFIG]45350[/ATTACH]

Edited July 24, 2013 by tewton

[Bazooka Boo]

First port of call your local Trading Standards..

[tewton]

ok I will try tomorrow but I thought that it was such a clear cut case I wouldn't bother them and didn't want them to contact the trader and have him go into hiding before I had a chance to get my money back?

 

I realise anyone reading my letters and evidence preparation will see I am a hopeless case of naivety in buying this van but I can assure you I'm learning some harsh life lessons here and it won't happen again. Unfortunately I'm clueless with it comes to engines/cars and was far too trusting of these people:-(

Edited July 24, 2013 by tewton

[Bazooka Boo]

He very well maybe known to them already, and yours might just be the final straw to break the camels back?

 

If it is a major/well known VW dealer then he will belong to a motoring or trade association of some kind, get them involve too..

[tewton]

It was a small independant father and son with 20 cars and a few vans on the lot, no trade associations and I've since learned his vans were sale or return so the rest of the stock probably is too. Should I contact the Trading standards local to me if the dealer is 300 miles away?

 

I would still appreciate anyone with advice on my first question if anyone has an opinion or experience of this

[Bazooka Boo]

It needs to be his local TS.

 

As for Q1.

IMO, I would simply ring the court offices where you got the N1 form from and ask them for advice.

It may not need to have expert witness statements, as from what I can see, the vehicle was not fit for purpose, and not as described, so under SOGA entitled to a repair of refund..

[tewton]

ok I have submitted via CAB which seems to be the only option in Devon and up there so thanks for the advise and I'll try the court tomorrow.

[tewton]

CAB have advised me that the inspection carried our should be done with mutual agreement but being that the dealer will not answer the phone I can only write to them and state my intention for this work to be carried out.

[Bazooka Boo]

Have you already sent that?

 

I'm just thinking that the time scale you have given him to respond in writing, is a bit on the short side, I would probably give him until the end of next week to respond before going ahead with the inspection.

[tewton]

Yes but the dealer hasn't been answering the phone to me despite them still trading for the last 10 days and the VW garage are busy so it would have been another week otherwise and I just want to get things moving

[Bazooka Boo]

No worries, keep us up to date.

[ericsbrother]

The reason why judges like to be asked about expert witnesses is to prevent both sides producing witnesses that contradict each other but just push up the costs. Generally a judge will ask both parties to agree an independent expert when technical matters are raised and if you cant then the judge will make a ruling over who can speak in their court.

generally you shouldnt have a problem as the deasler will be presumed to have knowledge or experience themselves. The warranty bit is a red herring, your contrcat for the goods is with the seller and they are obliged to make good, not claim some warranty says that they cant pay up-irrelevant to the goods being "of merchantable quality" and "fit for purpose".

[tewton]

Thanks for the advice, based on the seller not speaking to me I thought having a VW main dealer diagnose the fault would be the best thing even though they are expensive.

[Bazooka Boo]

The reason why judges like to be asked about expert witnesses is to prevent both sides producing witnesses that contradict each other but just push up the costs. Generally a judge will ask both parties to agree an independent expert when technical matters are raised

 

Cheers Eric, that's good to know!

[tewton]

I gave the dealer a call again today and he answered the phone. he is now saying that he can get the camshaft replaced locally for £500 and can produce invoices to this effect so any judge will laugh at me spending £430 on a report to diagnose the fault. He offered to pay up to £500 for a repair locally but he has previously agreed a refund and this is what I want.

 

I've told him that legally I don't have to be put at considerable inconvenience to return the vehicle to him (300 mile journey) and the engine management light is on anyway so this would not be safe. He has said he will ring me back on Thursday after speaking to his solicitor but I just know this is yet more delaying tactics on his part. This is the first time he has spoken to me in weeks.

 

Citizens Advice said I can still just initiate small claims court as I have written twice stating I would do this but a repair with a new part might be considered betterment of a second hand vehicle?!

 

This a nightmare and the fault clearly existed before he sold it to me, the engine noise started a few miles off of his forecourt.It is still booked into VW for the diagnoses tomorrow but at £430 I'm worried this will seem an unjustified cost?

[tewton]

I have had my inspection done by VW and they produced a nice letter for evidence - thankfully they found the fault so glaringly obvious there was no need to take the engine apart so I was only charged £84. Quoting £1800 for camshaft repair and they suspect the driveshaft (£700) need replacing but refused to test drive due to the state of the engine!

 

Anyhoo I am about to start the money claim online process but I am not sure wether to direct it at an individual or organisation. This trader has a dealership using part of his name, doesn't appear to be VAT registered and I can find no record of any companies house registration. I am not sure if I can name them here so for example the person is called Benjamin Button and his dealership is called Benjamin Car sales.

 

So whilst he has his son and a valet working for him I think he is simply "Benjamin Button trading as Benjamin Car sales".

 

Should I put the defendant as an individual in this case or leave it as the dealer ship name and let the judge deal with that side of things?

[tewton]

never mind I have found in the guide that I should do an individual "trading as" except their webform does not give enough space to add a company name after the surname as directed :]

[tewton]

well the trader has 1 day left to respond and hasn't yet. he still hasn't completed the v5 or sent me the second key and the road tax runs out in 2 days.

 

I read somewhere that the car dealer can't expect you to make unreasonable efforts to return the vehicle, does anyone know what law supports this?

[tewton]

nevermind, I found it on page 28 of the OFT guidance for the SOGA to used car dealers

http://www.oft.gov.uk/shared_oft/reports/676408/oft1241.pdf

[tezza1234]

Good work tewton, please keep us all updated as and when

[Surfer01]

Not many people seem to get joy from second hand car rogues, but it seems you have taken the bull by the horns and progressing nicely.

[tewton]

a defence has been logged on the very last day, hopefully it will be allocated to my local court and not his

[ccx295]

Keeps us updated on this please, the steps which you have had to take etc... thanks.