short term right to reject on a used car - Issues since day 1

A_Geordie

Just responding to @Okell tagging me for a response. 

I'm struggling to follow this thread and I agree with DullGreyGuy's point that there is a lot of unnecessary noise which isn't needed. A clear timeline of dates and events/responses would be helpful to properly understand the issue and the rights available. 

Having said that, it sounds like the OP has rejected the car, so I will base my reply on that, though feel free to correct any mistakes or misunderstanding. 

To summarise: 

1. If you rejected the car and made it available for them but collect but they have deliberately chosen not to make those arrangements within a reasonable time, then the Consumer Rights Act may be on your side. 

S28(8) says: 

If the consumer exercises the final right to reject, any refund to the consumer may be reduced by a deduction for use, to take account of the use the consumer has had of the goods in the period since they were delivered, but this is subject to subsections (9) and (10).

S28(9) says: 

No deduction may be made to take account of use in any period when the consumer has the goods only because the trader failed to collect them at an agreed time

There was a recent County Court decision last year on appeal which decided in favour of the consumer, who had continued to use the car when the finance company refused to collect the car until the settlement amount was agreed. It's not legally binding on other County Courts but since it was an appeal it would be persuasive. There's an article about the decision and a link to the judgment at the end of the article here: https://www.lexology.com/library/detail.aspx?g=6f39f555-849f-4b4f-a828-5b51a3c2ecc3.

2. As for the deduction for use and the mileage rate, there is no definitive answer to that but I would argue a lower pence per mile rate should be applied for older cars rather than newer ones. The Business Companion website has a useful guide on deduction for use by applying a formula based on the age and value of the car, and it might be sensible to work through that formula and see what pence per mile you arrive at. I suspect it will be lower than the 45ppm suggested by Carsa.

Link: https://www.businesscompanion.info/focus/car-traders-and-consumer-law/annex-c-deduction-use-calculations-a-proposal

3. If Carsa have suggested that 45ppm is reasonable and fair, then ask them to explain how they've arrived at that ppm for a used car like yours. You'll soon know whether they've plucked that 45ppm out of thin air on the basis that is what HMRC allows. The problem is that rate is based on tax rules an not a B2C transaction or as the CRA says, a deduction for actual use. I vaguely recall a Court of Appeal case regarding a motorbike (or might have been a car) decided in the 60s/70s where the court refused to grant a deduction for use on the basis that the consumer had spend more time going to garage getting it repaired or waiting to be repaired than actually using it, suffice to say there should be no award - If I remember it I will provide the case name. I am not so sure one could say given the period of time that there has been minimal use if the OP has clocked up 3000 miles to date, but it may be something to factor in when considering any deduction. 

If you are going to argue 45ppm is not reasonable or fair then you need to have a good reason why and offer something less, or come up with an alternative way of applying a deduction for use amount. 

4. If you can't afford to take this to court, then you have limited options. Take their offer or continue the back and forth until you can afford to go to court and then sue them.  You have 6 years from the date of rejection to sue them over this. 

5. I don't think I saw anything about who is in possession of the car but if the OP has the car and sitting on your land, then in addition or as an alternative #4 above, the OP could write to Carsa and tell them that they have had a reasonable time to collect the car and since nothing has been arranged despite it being made available, you no longer give permission for it to remain on your land and therefore consider them to be trespassing. The benefit of claiming a trespass is that it is a 'per se' action, meaning you don't need to prove damage, the mere fact of the trespass occurring is sufficient for it to be actionable. 

You would be entitled to seek compensation for the continuation of the car on your property until such time it is collected, based on the use of your land. I used this method recently against a finance co. who refused to collect the car and charged them £15 a day, eventually taking them 3 months to decide to collect the car, and they swiftly settled up (after legal proceedings issued). Don't feel like you have to do this as it is entirely optional but could be used as a bargaining tool to recover an acceptable amount for the case if you ever decided to issue proceedings in the future. 

born_again

julesw1lko said:

Yeah... We were told it had a 12 month MOT.  (turns out, it didnt). 

I guess the rejection from the bank means what, Carsa and the bank have to fight it out? 

Exactly how was the car paid for?
If it was via bank transfer. You have no hope, as that is just like giving cash.
Same if you took out a bank loan.

Your only hope would be if it was on finance & S75
But even then given the timescale & the non contact with them, it will not be easy.

GDB2222

Since you said you can’t afford to sue Carsa, one choice is to accept their offer. 

The alternative is to sell the car secondhand, which crystallises your loss. Then deduct what you think is a reasonable mileage amount, and issue a claim through MCOL for the balance. That’s quite easy for you to do as a litigant in person, without a solicitor. Your costs would just be the court fees, which are quite modest and get added to your claim. You would be suing for well under the £10k limit, so this would almost certainly be a small claim, where even if they win Carsa would not get their legal costs back.  

In your position, I would warn them that you propose to follow this course unless they reduce the 45p per mile figure quite drastically.

Make a without prejudice offer to settle at a mileage deduction of 25p say, so that they can see you are just arguing about £700. If you do issue proceedings, it will cost them at least that much to defend. Hopefully, you can reach a reasonable compromise. Good luck.

GDB2222

I’m assuming, btw, that the 45p offer would only be in full and final settlement?

julesw1lko

Sorry - Just getting a moment between work...

Had a further reply re : ADR.

" Alternative Dispute Resolution (ADR)

 At present, Carsa is not part of any formal ADR schemes. However, we are committed to resolving disputes amicably in accordance with the Consumer Rights Act 2015 and will continue to engage with you directly to find a satisfactory resolution."

However... It is reiterated, 45p a mile, full and final charge per the mileage. 

So much for engagement... 

Got a call with a solicitor later, just to get advice. 

the_lunatic_is_in_my_head

Okell said:

Well if:

1.   you requested the repair on the day of delivery and

2.  the trader didn't take it in for repair in response to that request until 05 March and

3.  you got the car back on 27 March

then I suppose that one interpretation of s22 of the Consumer Rights Act 2015 is that the 30 day window for exercise of the short term right to reject doesn't expire until Friday 25 April.

If (and it's a big "if" I think) that is the case then the trader can't charge you for usage and - if you haven't already exercised the short term right to reject - you need to do so before Saturday(?).

However, that interpretation seems a bit extreme and unlikely to me, so I'm not sure.  @DullGreyGuy and @TheSpectator obviously take a different view and think that after 30 calendar days you lose the short term right to reject.

Be interesting to see what @A_Geordie and @the_lunatic_is_in_my_head think about this

Well to the letter of the law, if the timeframes and actions as are detailed then yes, it appears OP asked for a repair so the waiting period began and it expires as:

(7)If goods supplied by the trader in response to that request or agreement do not conform to the contract, the time limit for exercising the short-term right to reject is then either—

(a)7 days after the waiting period ends, or

(b)if later, the original time limit for exercising that right, extended by the waiting period.

Carsa appear to be very large with a turnover of £123 million in year ending 2024, if OP went through small claims using this from the CRA would Carsa defend? 

It seems they'll take the car back but deduct 45p per mile so we aren't talking the value of the car here but just the deduction for use.

Isn't the best thing here to give the car back, see how much is refunded and then ask what can be done to recover the rest? 

GDB2222

the_lunatic_is_in_my_head said:

Okell said:

Well if:

1.   you requested the repair on the day of delivery and

2.  the trader didn't take it in for repair in response to that request until 05 March and

3.  you got the car back on 27 March

then I suppose that one interpretation of s22 of the Consumer Rights Act 2015 is that the 30 day window for exercise of the short term right to reject doesn't expire until Friday 25 April.

If (and it's a big "if" I think) that is the case then the trader can't charge you for usage and - if you haven't already exercised the short term right to reject - you need to do so before Saturday(?).

However, that interpretation seems a bit extreme and unlikely to me, so I'm not sure.  @DullGreyGuy and @TheSpectator obviously take a different view and think that after 30 calendar days you lose the short term right to reject.

Be interesting to see what @A_Geordie and @the_lunatic_is_in_my_head think about this

Well to the letter of the law, if the timeframes and actions as are detailed then yes, it appears OP asked for a repair so the waiting period began and it expires as:

(7)If goods supplied by the trader in response to that request or agreement do not conform to the contract, the time limit for exercising the short-term right to reject is then either—

(a)7 days after the waiting period ends, or

(b)if later, the original time limit for exercising that right, extended by the waiting period.

Carsa appear to be very large with a turnover of £123 million in year ending 2024, if OP went through small claims using this from the CRA would Carsa defend? 

It seems they'll take the car back but deduct 45p per mile so we aren't talking the value of the car here but just the deduction for use.

Isn't the best thing here to give the car back, see how much is refunded and then ask what can be done to recover the rest? 

I very much assume that the garage is offering in full and final settlement, so nothing can be done to recover the rest. 

That’s why I suggested that the alternative is to sell the car and then sue. 

the_lunatic_is_in_my_head

GDB2222 said:

I very much assume that the garage is offering in full and final settlement, so nothing can be done to recover the rest. 

That’s why I suggested that the alternative is to sell the car and then sue. 

I don't know anything about full and final settlement agreements, can they override a consumer's rights? 

The CRA has liability that can't be excluded, which covers the aspect of the goods not conforming and the remedies available but have no idea if a separate contract for agreeing a settlement would be tied together to the original contract or not. 

If they can the company would have to be very careful not to breach the CPRs, should they do so the consumer would have the right to unwind the contract. 

A_Geordie

the_lunatic_is_in_my_head said:

GDB2222 said:

I very much assume that the garage is offering in full and final settlement, so nothing can be done to recover the rest. 

That’s why I suggested that the alternative is to sell the car and then sue. 

I don't know anything about full and final settlement agreements, can they override a consumer's rights? 

Yes, otherwise the whole legal system would be chaos. It is the consumer's choice to settle on the terms proposed and if the consumer doesn't like the terms, it is open to the consumer to reject the terms and start the legal process.

It is possible that a settlement agreement can be re-opened and set aside if there are good reasons for doing so but the circumstances are very limited because the courts will not normally interfere. For example, if the settlement was based on undue pressure or influence to take the settlement against the wishes of the individual. Does that extend to the OP taking settlement based on a deduction of 45ppm because they can't afford to sue at this present time? I'm inclined to say no based on the current facts.

Selling the car and suing is not a good idea since the OP no longer owns or has permission to sell since they rejected the car. That would open the OP up to a possible criminal offence of theft and civil claims for conversion. 

DullGreyGuy

the_lunatic_is_in_my_head said:

GDB2222 said:

I very much assume that the garage is offering in full and final settlement, so nothing can be done to recover the rest. 

That’s why I suggested that the alternative is to sell the car and then sue. 

I don't know anything about full and final settlement agreements, can they override a consumer's rights? 

The CRA has liability that can't be excluded, which covers the aspect of the goods not conforming and the remedies available but have no idea if a separate contract for agreeing a settlement would be tied together to the original contract or not. 

If they can the company would have to be very careful not to breach the CPRs, should they do so the consumer would have the right to unwind the contract. 

Ignoring banks or other regulated entities accepting something as final settlement from consumers then generally "final settlement" is far from a water tight position. 

General position is you should mitigate your losses so returning the vehicle and accepting the funds as an initial settlement naturally helps do that as any statutory interest being accrued is now only on the disputed amount rather than the full amount. Judges are typically a little more lenient on consumers -v- corporates than b-v-b situations too.