Where do I stand? Faulty used car!

Toffee21

Hintza wrote: »

You need to find out if the mechanic is fully qualified and probably shouldn't be the mechanic about to do the work.

Get this wrong and it could be expensive for you.

He is qualified and has been a mechanic for many years including for several main dealers.

I don't see why he shouldn't do the work if his quote is the most reasonable, as I have a duty to mitigate my losses?

I'm more concerned that having read the CPR, there is a specific section on expert witnesses and that a) the court needs to give prior permission to use one b) most parties should agree on an expert. Obviously if they haven't responded to my letter then I am unable to agree an expert with them. There is also no guarantee that the judge will admit the evidence.

Would an ordinary mechanic be considered a 'witness' or an 'expert'?

Hintza

It could be argued that your mechanic is not impartial since he will benefit from the work.

Toffee21

Hintza wrote: »

It could be argued that your mechanic is not impartial since he will benefit from the work.

It could indeed be argued. But the burden of proof required is 51%:49%.

I'm showing the court a car that cost over £10,000 at the time of purchase, was bought less than 12 months ago and has done only an additional 5,000 miles before suffering catastrophic engine failure. It was not even due a service yet and the oil level was correct. The AA and a mechanic have confirmed serious engine failure.

They have failed to respond to the LBA to resolve this matter out of court, they have taken me up on my offer for them to inspect the vehicle themselves nor have they argued that the work shouldn't be done at the garage I propose.

Therefore if they turn up in the small claims court and say "We have no evidence, but our defence is that the car has been mistreated for 5,000 miles (but we haven't seen the vehicle) and their mechanic is lying because he wants the business (but we can't offer anything to support this theory)" then I can't imagine the judge having much patience. It isn't a criminal trial, it is purely a contest of whose story is more believable.

I also cannot keep hold of the engine until the court matters have concluded because that could be ages and most used engine providers require your old one to offer the best price (mitigating my losses, as required by law).

I just need to know:

a) How to word my particulars of claim?

b) Is my mechanics evidence classed as expert evidence or a witness statement? If it's the former, I will need to apply for court permission to include it as part of the case.

wealdroam

Toffee21 wrote: »

Is my mechanics evidence classed as expert evidence or a witness statement?

It is supporting evidence.

If you want any more detailed advice, you may need to pay for it.

People on forums only offer opinions.

Toffee21

wealdroam wrote: »

It is supporting evidence.

If you want any more detailed advice, you may need to pay for it.

People on forums only offer opinions.

Legal advice for small claims cannot be refunded by the losing party, so it wouldn't be very MSE-like to speak to a solicitor.

Plus the Government argue that the small claims track is designed to be accessible to the lay man without recourse to legal advice, especially in light of recent legal aid cuts.

I intend on trying my best with the lay advice I get on here and I will come back to let you all know whether the Government are talking a crock of s**t or whether it is genuinely accessible to those with no money for a solicitor.

baza52

Surely you need proof that the fault was inherent and present when you bought the car.

bris

Your doing it wrong and will fail. Your mechanic saying the pistons to blame and it will cost this much is not the proof you need. You need someone whon can say why the piston failed and whether of not it was an inherent fault, there is a big difference.

Sometimes these things just happen from general use, no one to blame, no inherent fault just bad luck, you are not covered for that.

Your mechanic is not independent as he will benefit from the work, you need someone who will write the report and have no further say in the outcome, this cost can be reclaimed in any action you take.

Toffee21

baza52 wrote: »

Surely you need proof that the fault was inherent and present when you bought the car.

Not quite 'proof', I just need to make a 51% case that the vehicle was inherently faulty. The court can make a common sense decision based on the facts presented, particularly that the engine failed after 5,000 miles despite no servicing or checks needing to be performed according to the manufacturers guidelines. The fact that the report from a mechanic indicated piston failure and seizing, with no evidence of neglect or misuse will further the case. The lack of reply or assistance from the seller, despite an LBA, particularly their lack of response to the offer for them to examine the vehicle will further the case still.

Unfortunately I've checked and the cost of having the car taken to a specialist, examined and a report written up would NOT be claimable in court and may not even be admissible as evidence. The court has to give prior consent for a specialist opinion to be sought, and the defendant given an opportunity to mutually agree upon such a specialist.

I've spoken to a solicitor who deals with these matters for free via an insurance policy I hold, and his opinion is that although there are no guarantees in court, he thinks the case is likely to be successful given that it will be decided on the balance of probabilities, as there is no requirement to prove beyond reasonable doubt that the item was inherently faulty. As it is a civil case the judge will sit down, weigh up all the evidence and come to a common sense decision based on whose argument is most believable. It isn't a murder trial where a nationally renowned expert needs to examine the vehicle at a cost of thousands, strip the engine into it's individual components and write a detailed reported regarding possible faults and any evidence of misuse.

I think unfortunately that some members on the forum, although knowing a lot about SOGA and consumer rights, are very inexperienced when it comes to county court procedures and are therefore taking their knowledge from TV court room dramas where the slightest shadow of doubt results in the whole trial being thrown out.

Toffee21

bris wrote: »

Sometimes these things just happen from general use, no one to blame, no inherent fault just bad luck, you are not covered for that.

you need someone who will write the report and have no further say in the outcome, this cost can be reclaimed in any action you take.

A diesel engine on a £10k car should not fail after 40k miles. There is no such thing as bad luck, as if such an engine fails so soon from 'general use', it has not been manufactured or setup correctly and is therefore inherently faulty.

Imagine how mad you'd be if you brought a £2,000 50" LCD TV and after 6 months the thing blows up and the shop say 'sometimes these things just happen after general use, no one to blame, just bad luck, we won't be offering a refund'.

As for your second point, the costs would not be reclaimable and their evidence would not be admissible in court. Prior permission from the judge needs to be sought for specialist opinions and the defendant needs to be offering a chance to mutually agree upon the choice of specialist.

pinkshoes

You need to wait until you receive the report stating that the engine was inherently faulty.

Once you have received this, send a copy of the report to the car dealer, stating that you have paid for an independent report which clearly shows the car was inherently faulty, therefore are giving them 14 days from receipt of this letter to either:

A) give a specific date when they are going to fix the car,

give you a a refund of £X, which corresponds to the purchase price and the independent report cost, less one years use of the car.

C) Pay £x which is the cost of the report, and the cost to get the car fixed (enclose THREE quotes).

Do NOT send a quote from the same guy who did the report - this will look far too dodgy and will discredit the report.