Secion 75, help please!

Davii3s

Hi All,

Firstly a big hello from me as this is my 1st post to the forum. I am hoping for some good advise from yourselves on a decision I need to make regarding a section 75 claim with M&S Bank, or whether I should take my claim further E.G, financial services ombudsman.

Here is a summary of my the letter I sent to the bank and I apologise for the long read, I'd just like to include as much information as possible, so I can receive the best advise.

On the 1st March 2019 I was driving home from work. I was accelerating away from the traffic lights in which my car suddenly lost power and plumes of black smoke came out the back. I pulled the car over and got it recovered to a local garage company. They informed me that my turbo had failed. I asked them to proceed with the work to repair the car so it was in a road worthy condition again.

I picked the car up from the garage on the 13th March with the new turbo installed with other parts that were required to complete the installation. I then drove the car home and everything seemed back to normal.

On the 16th March I decided to take the car for a drive out to the coast. I had been driving the car for about 10 miles in which nothing seemed wrong with the car, I pulled off a roundabout in 2nd gear and started to gain speed where there was a high pitched whine and then my car suddenly lost all power. I noticed the black smoke was coming out the back of the car again. At this point I had only covered 62 miles with the replacement turbo (this can be seen at the bottom of the invoice receipts).

The car was recovered to the garage and they gave me a call 18th March to inform me that the turbo had hydrolocked my engine and that a new engine and turbo would need to be installed into the car. Plus various other components such as replacement filters for the oil, fuel and other components.

The garage purchased the turbo from a company called London Turbos, after taking a look at their website it became obvious very quickly that London Turbos warranty covers basically nothing. The damage was caused to my engine by the turbo being fault, the nut which holds the compressor wheel in place inside the turbo had come undone, oil was then being pumped into the wrong sections of my engine which caused the hydrolocking. This broke off some of the vanes in the turbo which meant pieces of metal were also going round my engine.


Below is an extract from the warranty page.
"Warranty does NOT include/ cover:

· money refunds;

· labor costs;

· ancillary charges such as removal and refitting / hire of vehicles etc.;

· any damage caused to engine or vehicle by failed turbocharger."

This meant that London turbos would not repair my engine even though their faulty turbo caused the damage after only 62 miles.

I spoke to citizen’s advice who gave me some helpful information. I called up my car garage and said to them what I had done and what I would like the garage to do about it.

The garage agreed that although it wasn't their fault the turbo had failed they would now look to source me an engine and replacement turbo to get the car back on the road. They agreed that they would cover the cost of the engine and the majority of the replacement turbo but I would have to pay some of the replacement turbo price.

The garage sourced me a new engine which arrived 5th April, they started to install the replacement engine 8th April. I didn't hear anything for a couple of days from the garage. On the 11th April I received a call in which I was informed the replacement engine had an issue with the injectors and that they were contacting the supplier of the engine for more information. The garage called me and informed me that the supplier of the engine had given permission for them to open the engine and take a look inside to see if anything obvious was happening. The car was sent to a specialist by the garage who started to look at my car on 24th April, I didn't hear any news for a few days and chased the garage again 29th April for an update. The specialists found an issue with injector 3 which looks like it was from a cracked cylinder head.

On the 1st May, the garage offered to lend me a courtesy vehicle, unfortunately due to me not being 25 until yesterday (Sunday 9th June) I was unable to drive the vehicle on Third-party insurance.

On the 9th May another replacement engine arrived. I didn't hear any response from The garage until 14th May where I was told that 2nd engine had been installed into my car. On the 15th May I called the garage to find out that the 2nd engine had an issue with the oil circulation and they needed to try and find the issue and then a fix.

The garage called me and said that they were unable to fix the 2nd engine. This meant that again the car wasn't in a working condition and had no engine to go inside it.

I then took matters into my own hands and started to look online at fully reconditioned engines, I found one at a website called engineOD.com. I messaged the garage and they said that they wouldn't be willing to cover the entire cost of the replacement engine because my engine wasn't new so they couldn't justify the cost. They agreed to pay half of the engine price which meant I had to pay the remaining £500 to cover the total cost of the engine.
The reconditioned engine arrived with the garage on 30th May and it was installed. I picked the car up on 6th June and paid the rest of my bill which came to a total of £1184,64. I am not claiming for the full amount of the invoice dated 6th June because the clutch and flywheel parts are nothing to do with the damage caused by the original turbo. Therefore I am claiming only £731.04 from the invoice dated 6th June and £415.18 for the invoice dated 13th March.

As you can see from the above, The garage have done all they can to get my car back on the road, but because of the faulty turbo unit, I have sustained substantial consequential loss.

As you can see all the remedial work has been completed on the car and it is now in a condition where it can now be driven on the road.

I logged a claim under section 75 with M&S Bank and I received a response.

The letter received from M&S Bank, dated 25th June 2019 says. "You state that you decided that you didn't want the retailer to proceed with remedial work and went ahead with your own repairs. As the remedial work has been completed we will need an independent inspection report completed Prior to you completing any of your own works. As undertaking any work would have removed any evidence to support your claim.

I responded and replied with the following
"You state that you decided that you didn't want the retailer to proceed with remedial work and went ahead with your own repairs. As the remedial work has been completed we will need an independent inspection report completed Prior to you completing any of your own works. As undertaking any work would have removed any evidence to support your claim."

The only section that states when I've taken matters into my own hands, is where I've found the garage the fully refurbished engine that I would like them to install into my car. Please see extract from my original letter below.

"I then took matters into my own hands and started to look online at fully reconditioned engines, I found one at a website called engineOD.com. I messaged the garage and they said that they wouldn't be willing to cover the entire cost of the replacement engine because my engine wasn't new so they couldn't justify the cost. They agreed to pay half of the engine price which meant I had to pay the remaining £500 to cover the total cost of the engine.
The reconditioned engine arrived with the garage on 30th May and it was installed"

Therefore, the garage have completed the remedial work to the car and it is now in a state that it can be driven. Under NO circumstances have I instructed the retailer not to perform the remedial work. All work on the car has been completed by the garage as they are the professionals.

Today, 04/07/2019, I received a call from M&S to say that, because the remedial work has been performed an independent inspection could no longer happen, but because I have been a customer for a while, they would refund me 50% as a goodwill gesture.

This is where I would like the advise of you! should I accept this offer or insist for a full refund as section 75 covers me for purchases to the value of £30,000.

If I choose not to accept the offer from the bank and go to the financial services ombudsmen, do you consumers think that I have a good chance of winning the entire case?

This has been a long winded process and being without a car for 3 months has been an absolute nightmare. I am wanting closure on this issue, but I personally don't feel that 50% of my total claim is enough, but also don't want to potentially lose that money.

Any help would be greatly appreciated.

Kindest regards.

Terry_Towelling

Perhaps not in the right part of the forum for the most responses. Anyway, what follows is just my opinion and does not constitute legal advice.

For your card issuer to agree to pay you out as a so-called S75 claim without you taking your case to court, you will have to prove to their satisfaction that you do have a claim for breach of contract. If they don't agree, they won't pay you, leaving you with the choice of taking the garage and/or them to court to prove your case.

There is nothing in law (to my knowledge) that says you have to provide an independent report to substantiate your claim but there is also nothing that obliges a credit card company to pay you unless they are satisfied that you do have a valid claim.

I'm not sure how the FOS will view a case like this but I don't see how they could say M&S has acted incorrectly by wanting to see independent evidence of your claim because that would appear to be their policy when deciding whether to accept liability out of court.

Oddly, you do have some evidence of your claim provided by the garage - but that isn't independent. Ironically, the garage's evidence could actually implicate them in any court action because your contract to replace the turbo was with them, not with the turbo supplier.

It looks like you have a stark choice - accept M&S's 50% goodwill payment or take them and/or the garage to court and gamble that the evidence you have is enough to convince a judge to rule there has been a breach of contract. You'll need proper legal advice for this.

As a side issue, M&S may be able to pursue a Chargeback for Defective Merchandise for the cost to supply and fit the turbo-charger that failed.

A second side-issue might be the terms of the warranty provided by the turbo supplier. Just because they say their warranty doesn't cover engine damage caused by a faulty turbo doesn't mean they can legally enforce such a clause. Such a clause sounds like an infringement of a purchaser's statutory rights.

eco_warrior

I can see why M&S have decided not upheld your claim. FOS might disagree and make them pay the rest so please let us know the outcome. The fact they are willing to go to 50% makes me think they believe this is reasonable and may have experience of similar claims going to FOS.

Generally speaking, when someone raises a dispute/Section 75 claim its when they have reached an impasse with the merchant. Your situation was a step ahead in that you had "resolved" the issues with your car in advance of the outcome of the claim. I've known many cases to be rejected on this basis but its not always cut and dried. I can see how it makes obtaining evidence difficult, or impossible, in this instance.

The whole issue of needing an independent expert report is a pain but is a means to an end, FOS would back that stance im sure. Just not sure how they would view your claim in its entirety.

As I said, let us know the outcome

2e0arr

if you go to the FOS for an adjudication after getting a resolution you disagree with, even if the FOS do not find in your favour the Case fee will cost the company about £550.