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  • FIRST POST
    • ThunderGav
    • By ThunderGav 7th Mar 18, 4:04 PM
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    ThunderGav
    Right to Consequential Loss payment?
    • #1
    • 7th Mar 18, 4:04 PM
    Right to Consequential Loss payment? 7th Mar 18 at 4:04 PM
    Hi all, first post here so may as well make it a good one...

    In January, we bought a car from a dealer near Bolton, who shall remain nameless for the time being. It was a Ford Kuga, and we paid £4600 for it after discovering it needed a cam belt. Happy with that, we drove home (a journey of 97 miles!) Slightly more to it than that but that's the condensed version.

    When my other half took it out the next day she discovered a huge crack in the panoramic roof. I immediately told the dealer, and said i would rather get it repaired due to time, hassle and distance to bring it back. I got quotes which were in the region of £1600 to repair it and he refused and said bring it back for a refund. He offered (through the AA) to give us £100 as a goodwill gesture on top of the full refund to cover part of our costs, fuel to take it back, insurance (the insurance company did what they do best when we came to insure it's replacement, hiked the cost. Cost us an extra £160 that it wouldn't have done otherwise.) and tax on a vehicle we couldn't use. These were our primary costs and come to a total somewhere in the region of £230. I accepted his offer and took the vehicle back, to be told that he wouldn't be giving us the £100.

    I tried to get this sorted out using the AA as a mediator but he refused, so i took the refund of £4600 and left, just to make sure that i actually got my money. I then wrote a letter to him and sent it recorded delivery to inform him i wanted to claim for the full cost of my consequential losses. I have had a letter back from a motor traders legal representative informing me i am not entitled to claim for any of this. I think this is wrong and they are trying to scare me into leaving it, but if anyone can shed any light on this it would be very welcome. I can provide more information if i have missed anything.

    Trading standards have been kept informed throughout the whole saga and are advising me to use ADR as a next step. I'm feeling a little bit let down by the system at the minute! This has been a heavily watered down version of events and i will add more information as i remember its relevance.

    Thanks everyone

    Gav
    Last edited by ThunderGav; 07-03-2018 at 4:07 PM. Reason: Legibility
Page 1
    • photome
    • By photome 7th Mar 18, 4:37 PM
    • 13,178 Posts
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    photome
    • #2
    • 7th Mar 18, 4:37 PM
    • #2
    • 7th Mar 18, 4:37 PM
    I am not an expert but IMO you got a refund and that is all you are entitled to

    It could have been much worse you may have had to go to court for the refund
    • mattyprice4004
    • By mattyprice4004 7th Mar 18, 4:41 PM
    • 3,586 Posts
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    mattyprice4004
    • #3
    • 7th Mar 18, 4:41 PM
    • #3
    • 7th Mar 18, 4:41 PM
    Unfortunately I have to agree with the above - YOU chose to buy the car from 97 miles away. That's not the dealer's problem.
    Likewise, the insurance increase on another vehicle isn't their fault either. Even the same make and model of car in a different colour can increase or decrease a premium.
    If your insurance company had offered a partial refund due to the new car being cheaper, would you have offered that to the dealer? Didn't think so.

    In short, the £100 was a goodwill gesture and you've got their back up by dealing with it the way you have. I'd just take the refund and walk away, you've got your money back.
    • unholyangel
    • By unholyangel 7th Mar 18, 5:36 PM
    • 12,426 Posts
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    unholyangel
    • #4
    • 7th Mar 18, 5:36 PM
    • #4
    • 7th Mar 18, 5:36 PM
    It is the dealers problem - and if OP chose to buy from 97 miles, then the dealer chose to sell to someone 97 miles away.

    There are two limbs of damages which are recoverable:
    1) Direct losses - these are losses that arise from the natural course of things and would (or should) be obvious to the world at large that such a loss would occur from the breach
    2) Indirect (or consequential) losses - these are losses which do not arise from the natural course of thing but arise from special circumstances - if the retailer was aware of these special circumstances then these losses are also recoverable.

    As VED & insurance are required by law for any car driven on the public road and the trader would have known the car was going to be driven on the road, then even if they were consequential losses (which isn't clear cut, they may well be considered direct losses)....they would be recoverable as having been in contemplation of the parties at the time the contract was entered into.

    Usually the first application of damages is to put you into the same position you would have been in had the contract not been breached. If that isn't possible, then the law would look to put you into the position you would be in had you not entered the contract.

    In the first instance, you wouldn't be entitled to these losses but that isn't possible due to trader wanting to rescind the contract therefore (imo) you should be put back into the position you would have been in had you not entered the contract.
    Money doesn't solve poverty.....it creates it.
    • bris
    • By bris 7th Mar 18, 6:51 PM
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    bris
    • #5
    • 7th Mar 18, 6:51 PM
    • #5
    • 7th Mar 18, 6:51 PM
    Road tax you get back, so all you pay for is the month you use. Insurance too, you only pay for what you use and if the premium goes up for a different car that's not the dealers fault.


    Why would the dealer be liable for unused tax and your years insurance?


    You are entitled to the costs associated with getting the car back to them and returning home and the months tax you lost but that's it.
    • AndyMc.....
    • By AndyMc..... 7th Mar 18, 8:03 PM
    • 1,575 Posts
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    AndyMc.....
    • #6
    • 7th Mar 18, 8:03 PM
    • #6
    • 7th Mar 18, 8:03 PM
    Road tax you get back, so all you pay for is the month you use. Insurance too, you only pay for what you use and if the premium goes up for a different car that's not the dealers fault.


    Why would the dealer be liable for unused tax and your years insurance?


    You are entitled to the costs associated with getting the car back to them and returning home and the months tax you lost but that's it.
    Originally posted by bris
    So you think itís reasonable to pay a months tax for two days?
    • bris
    • By bris 7th Mar 18, 8:17 PM
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    bris
    • #7
    • 7th Mar 18, 8:17 PM
    • #7
    • 7th Mar 18, 8:17 PM
    So you think itís reasonable to pay a months tax for two days?
    Originally posted by AndyMc.....
    Did you not read my post? I already said the months tax is a consequential loss so no to answer your question.
    • ThunderGav
    • By ThunderGav 7th Mar 18, 11:54 PM
    • 6 Posts
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    ThunderGav
    • #8
    • 7th Mar 18, 11:54 PM
    • #8
    • 7th Mar 18, 11:54 PM
    Thanks for your replies everyone.

    At that point, nobodies back had been 'got up. Things were quite amicable, we were just trying to find a solution.

    Unholyangel, that was more or less my understanding of the situation and my interpretation of things. As the vehicle had to be returned, through no fault of mine, I should be returned to the same position I was before the purchase. The insurance is there because basically without this whole palace, we would not have incurred that extra £35 admin fee involved in changing vehicles on the policy and also extra money for changing again at short notice.

    Thanks
    • steampowered
    • By steampowered 8th Mar 18, 12:13 AM
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    steampowered
    • #9
    • 8th Mar 18, 12:13 AM
    • #9
    • 8th Mar 18, 12:13 AM
    I have had a letter back from a motor traders legal representative informing me i am not entitled to claim for any of this.
    Originally posted by ThunderGav
    This is the key part of your post. I think we need to know exactly why they are saying that. Did they give a reason?

    I'm feeling a little bit let down by the system at the minute!
    You haven't used the system yet. The system for resolving disputes is court.

    The courts deal with matters like this through the small claims system. It is very easy to issue a small claim through the government moneyclaimonline website. Court is the only option that is legally binding on the trader - going to trading standards etc. over something like this is a bit of a waste of time to be honest.
    Last edited by steampowered; 08-03-2018 at 12:26 AM.
    • ThunderGav
    • By ThunderGav 8th Mar 18, 9:28 AM
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    ThunderGav
    Letter text as follows:

    We have recently been instructed by the above named Client in respect of your purchase of the aforementioned Vehicle. We confirm receipt of your letter of the 22 February 2018 addressed to our Client and we respond as follows.

    We understand that you purchased the Vehicle from our Client in or around the 24 January 2018 for the total consideration of £4600. We understand that following purchase, you alleged the Vehicle suffered from a fault and as such you exercised your short term right to reject the Vehicle as per s22 Consumer Rights Act 2015 hereinafter referred to as the CRA. Our Client refunded you the total purchase price of £4600 in full and final settlement of any claims that you may have against them.

    We understand from your letter that you believe you are entitled to consequential losses of £228.50. We can advise that you have no right to such monies.

    As stated above the refund of £4600 was made in full and final settlement and therefore you have no right to any further claim.

    In addition we respectfully refer you to s 20(9) CRA and s20(10} CRA 2015 which sets out how a consumers entitlement to a refund works. in essence you are entitled to receive back the same amount of money as the purchase price. We would aver that our Client can show that they have complied with the aforementioned provisions.

    We further refer you to s20(19) CRA 2015 where it states that it may be open for a consumer to claim damages where there is no entitlement to receive a refund. In this instance you have received a full refund and therefore we deny that you are entitled to claim damages as per your letter.

    Further and in the alternative you will be aware that you were obliged to return the
    Vehicle to our Client In any event and therefore you have no entitlement to the fuel of
    £30.

    In relation to the insurance and vehicle tax you are not entitled to recover these monies as such costs would have been suffered by you regardless of vehicle that you were using at that time. It is this firms position that you have not suffered any consequential losses in any event.

    We would also respectfully point out that our Client made a full repayment to you
    without making any deductions for usage of the Vehicle.

    In summary we can advise that you have no grounds upon to seek recovery of any
    damages from our Client.

    Please ensure that all future correspondence is sent directly to this firm.
    We look forward to hearing from you.

    Re. their position on the payments... I don't think i was actually obliged to return the vehicle, was i? I am sure i have read that if the customer rejects the vehicle on the grounds of a fault in the vehicle (and in this case, quite an important fault potentially affecting the structure of the car, and the safety of the car in the event of a crash - the roof was cracked front almost to back) then the customer can request that the vehicle be collected? Their position on insurance and tax - i was paying for a vehicle i could not use, and had this not happened i would not have incurred that extra admin fee and the extra cost of insuring another vehicle. They make a point about their client, the dealer, not charging me for usage. The only usage i got out of the vehicle was driving home and driving back, and a couple of miles before she saw the crack when she took it to see a friend.

    Thank you for all your replies so far.

    Gavin
    • JJ Egan
    • By JJ Egan 8th Mar 18, 10:17 AM
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    JJ Egan
    (As stated above the refund of £4600 was made in full and final settlement)

    Did you agree to that ??
    • ThunderGav
    • By ThunderGav 8th Mar 18, 10:21 AM
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    ThunderGav
    I never expressly stated I was happy to recieve it as a full and final settlement. I took the money simply to make sure I got my money and then left.
    • ThunderGav
    • By ThunderGav 8th Mar 18, 10:24 AM
    • 6 Posts
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    ThunderGav
    In fact I have voice recordings of a phone call between myself and a guy called Mike at the AA. The dealer was an approved AA dealer so they were used as a mediator when he reneged on his goodwill gesture, which had been promised through the AA. They advised me to take the money and then claim afterwards, just to make sure I actually received the money without having to go to court.
    • DCFC79
    • By DCFC79 8th Mar 18, 10:42 AM
    • 31,912 Posts
    • 20,097 Thanks
    DCFC79
    I don't understand why people buy cars that are 97+ miles away from home, its not something Id consider when buying a car if there's any issues.
    Last edited by DCFC79; 08-03-2018 at 10:52 AM.
    • ThunderGav
    • By ThunderGav 8th Mar 18, 10:45 AM
    • 6 Posts
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    ThunderGav
    Best one within our budget, and driving doesn't bother me. Will consider this a lesson for next time though.
    • steampowered
    • By steampowered 8th Mar 18, 11:26 AM
    • 2,584 Posts
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    steampowered
    Write to the law firm asking them to confirm whether they are authorised to accept service of legal proceedings on behalf of the car trader.

    A nice little way of finding out what the situation really is.
    • unholyangel
    • By unholyangel 8th Mar 18, 1:22 PM
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    unholyangel
    You say you didn't expressly agree it was in full and final settlement. But did they make the offer of a refund in full & final settlement and did you accept that refund?

    If (for example) the trader sent you a cheque with a letter stating it was in full & final settlement and should be returned if you do not accept it, then by cashing the cheque you would have accepted it.

    I'd respond back to them making a few points:
    1) there was no obligation on you to return rejected goods unless you had previously agreed you would return rejected goods (ETA: in line with 20 (7) of the CRA)
    2) The right to deduct monies does not apply to the short term right to reject, it only applies to the final right to reject
    3) In response to their comments on 20 (9), (10) & (19) - point them to 19 (9), (10) & (11) which state:

    (9)This Chapter does not prevent the consumer seeking other remedies!!!8212;
    (a)for a breach of a term that this Chapter requires to be treated as included in the contract,
    (b)on the grounds that, under section 15 or 16, goods do not conform to the contract, or
    (c)for a breach of a requirement stated in the contract.

    (10)Those other remedies may be ones!!!8212;
    (a)in addition to a remedy referred to in subsections (3) to (6) (but not so as to recover twice for the same loss), or

    (b)instead of such a remedy, or
    (c)where no such remedy is provided for.

    (11)Those other remedies include any of the following that is open to the consumer in the circumstances!!!8212;
    (a)claiming damages;

    (b)seeking specific performance;
    (c)seeking an order for specific implement;
    (d)relying on the breach against a claim by the trader for the price;
    (e)for breach of an express term, exercising a right to treat the contract as at an end.
    ETA: Forgot to include this bit. If they made the offer of a full refund + £100 in full and final settlement, then they needed to have paid the £100.
    Last edited by unholyangel; 08-03-2018 at 1:30 PM.
    Money doesn't solve poverty.....it creates it.
    • JJ Egan
    • By JJ Egan 8th Mar 18, 2:02 PM
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    JJ Egan
    Send the cheque back straight away .
    • bris
    • By bris 8th Mar 18, 2:54 PM
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    bris
    You can still cash a cheque and refuse to agree to the full and final settlement clause that comes with it, there is case law on this.


    I found this which pretty much sums it up.
    https://www.brethertons.co.uk/site/blog/brethertons-latest-news/cheques-received-in-full-and-final-settlement
    • unholyangel
    • By unholyangel 8th Mar 18, 4:11 PM
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    • 9,730 Thanks
    unholyangel
    You can still cash a cheque and refuse to agree to the full and final settlement clause that comes with it, there is case law on this.


    I found this which pretty much sums it up.
    https://www.brethertons.co.uk/site/blog/brethertons-latest-news/cheques-received-in-full-and-final-settlement
    Originally posted by bris
    You can inform the sender that you do not accept it in full & final settlement and that you intend to cash it in x days time as part settlement - which then allows the sender to cancel the cheque if they do not agree.

    Courts have held that cashing a cheque without communicating rejection immediately (or within a very short time) is strong evidence that it was accepted (albeit not conclusive).

    Also, its particularly different when the sender of the cheque states (as my example detailed) that if its not accepted in F&F settlement, the cheque should be returned. In those instances if you cash the cheque then it will be seen as acceptance (as in bracken v billinghurst)
    Money doesn't solve poverty.....it creates it.
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