Which? Legal member John Lewis received a new Volkswagen Golf MK8 from Martins Group, but the car didn’t include some features that should have been included as standard. John had viewed the features on the Volkswagen website’s online brochure and discussed them with the dealership’s sales representative. He was told an exact vehicle match had been found for a purchase price of £29,650.
However, once the car had been delivered, John had difficulty identifying some of the features that were in the Volkswagen online brochure. He contacted Volkswagen UK, and then Martins Group, and was advised that the features were not available at the trim level he’d chosen as they had been temporarily paused in production due to technical issues, and could not be retrospectively added post-production. Unsure of his rights, John sought advice from Which? Legal.
The Consumer Rights Act 2015 says goods must match their description. In failing to provide John with a car matching the description in the online brochure and discussed with its representative, Martins Group was in breach of contract. As John had taken delivery of the vehicle shortly before contacting us, he was still within the first 30 days of delivery and could exercise his short-term right to reject the goods and obtain a refund.
We advised John of his rights, which were to either reject the car and seek a refund or ask the dealership to provide a replacement. On discussing his right to a legal remedy with the dealership, John decided to allow a replacement car with all his requested features to be provided, as this was preferable for him. John paid an additional £500 towards the replacement vehicle to ensure its swift arrival and reflect the newer registration.
A Which? Legal member bought an Audi TT last April from a car dealership in London for £3,000. In the first week of having the car, the member noticed a fault with its alarm system. The dealership agreed to repair the fault, but the problem didn’t go away. The member agreed to part exchange the faulty car for a Porsche Boxster, and paid an additional £2,000 for the car with a credit card. The member soon learned that this car was also faulty. Initially, the dealership tried to repair the fault. But in August the power steering failed, resulting in smoke coming out of the vehicle. The manager at the dealership initially offered a refund, but then went back on the promise.
As the dealer was unreasonable, we advised the member that it was best to bring a claim under section 75 of the Consumer Credit Act 1974. Under this act the credit card company is jointly and severally liable for any breach of contract or misrepresentation by a retailer. Initially, this caused problems as the Audi TT was bought using a debit card. But after clarifying that the Porsche was partly paid for using a credit card, the member was credited back the full purchase price by the credit card provider.
Under the Consumer Rights Act 2015 both cars would have had to be of ‘satisfactory quality’. Otherwise, a refund would be owed. In this case, the average consumer can expect a higher standard from cars which are considered to be ‘more luxurious’, so the dealership was in breach of its contract. On top of that, as the dealer was only offering a refund on the basis that the car was faulty, this could be considered an admission of liability.
Stuart Chapman bought a VW Golf from EMG Motor Group of East Anglia and East Midlands for £28,350. On his test drive Stuart noticed there was no reversing camera, unlike what the advert stated. EMG admitted the mistake and made a small discount. Later, Stuart found the lane-assist feature was also missing. When he tried to return the car, EMG said it was his duty to ensure advertised features were present, and refused a refund.
As he was within the first 30 days of taking possession of the car, we advised Stuart that he could rely upon the ‘short-term right to reject’. EMG was in breach of contract because the car did not match its advert. Stuart had the original advert, which we advised him to rely upon to enforce his right to return the car. We also advised him that EMG could not exclude or restrict his rights in this circumstance. After a few weeks, EMG conceded, offering Stuart his refund.
Section 11 of the Consumer Rights Act 2015 states that goods must match their description. It’s a breach to supply goods missing advertised features. A consumer’s rights under section 11 cannot be excluded or restricted, meaning EMG could not shift the burden on to Stuart to check that every aspect of its advert was accurate.
What EMG says
‘With hundreds of models and thousands of variants, on very rare occasions errors can occur. [Mr Chapman] was offered £750 then £1,500 to keep the car. When he asked for an unrealistic £25,000 we accepted his rejection and three working days later arranged to collect the car and return his money. We then found VW had facelifted the car so it didn’t have the items he was looking for.’
Which? Legal member Shirley Purcell bought her dream car, a new Jaguar F-Pace R-Sport, from Harwoods Jaguar Land Rover Croydon in September 2017, costing £44,416. After four months there was an audible squeak coming from the brakes, which was repaired in March 2018. The fault kept returning, so Shirley rejected the car. However, Harwoods said she couldn’t reject it because she’d had it for more than six months. Instead it repaired the car, which was in its garage.
We advised Shirley of her rights under the Consumer Rights Act 2015, explaining that Harwoods had attempted to mislead her – there isn’t a six-month deadline in which to reject a car. In fact, she was entitled to do so because Harwoods had failed to repair the fault. It shouldn’t have carried out any repairs after Shirley rejected it, as this could have limited her rights.
Harwoods initially offered £35,000, which it then increased to £39,000. We advised Shirley to accept this, as it was not in ‘full and final settlement’. Eventually Harwoods offered a final supplementary £3,825.25, bringing the total settlement to £42,825.25. We thought this to be fair, considering the 6,363 miles she had driven the car.
It’s an offence under the Consumer Protection from Unfair Trading Regulations 2008 to mislead a customer about their rights if it’s likely to influence their buying decisions. The Consumer Rights Act 2015 takes into account relevant context, including the car’s value and what a reasonable person would expect of it. Harwoods was entitled to make a reasonable deduction for use of the car, but it wrongly claimed that it could deduct 45p per mile. In consumer law, a fair deduction is 20p to 30p per mile. Jaguar responded: ‘The request to reject was after more than a year of ownership. Jaguar offered to fix the vehicle and a goodwill offer was also made. Jaguar is content that it did everything it could to appease the customer.’
Which? Legal member Paul Juhasz bought a used BMW for £8,350 in summer 2018. After only a month, the car began losing coolant, and the dealer identified that the issue was caused by a seal or O-ring leak. However, during the time Paul was trying to arrange a repair with the dealer, the car overheated and needed to be towed to a different garage. Paul had to have his car fixed immediately to get back on the road, at a cost of £841.
Unfortunately this repair by a third party was not covered under the terms and conditions of his warranty, and he was stuck with the bill. He contacted Which? Legal for advice.
The team advised Paul to contact the dealer and ask it for a contribution towards the repair that was carried out by the third-party garage. Under the Consumer Rights Act 2015, it’s the dealer’s responsibility to ensure that the cars it sells are of satisfactory quality. Arguably, the car was not up to standard, as it suffered a coolant leak so soon after purchase. The dealer should have carried out the necessary repairs within a reasonable time, and without charge.
Paul was in a difficult position legally because the dealer had initially offered a repair, but this was carried out by a third party without its authorisation. Considering the circumstances, the dealer offered Paul £504 towards the cost of repairing his car. Paul was willing to accept this amount in order to resolve the matter swiftly.
The Consumer Rights Act 2015 states that if anything you’ve bought is not of satisfactory quality, then you’re entitled to have it repaired or replaced. It’s advisable to give the supplier the opportunity to do this first, before taking the matter further. By accepting the dealer’s offer towards the cost of his repair, Paul avoided the time and expense of going to court. It can prejudice a claim if a repair is done without the trader’s knowledge, so accepting the offer also avoided the risk of litigation.
Which? Legal member James McPherson bought a second-hand Citroën Picasso C4 from a small independent dealership in March 2017, costing £2,700. It had 72,000 miles at the point of sale, and appeared to be in good condition. James couldn’t test drive it because the dealer didn’t have plates available, so went ahead with the purchase in good faith.
During the drive home from the dealership, the car broke down as a result of multiple faults. After contacting Which? Legal, James tried to reject the car and get a refund, but the dealership refused. This meant James was forced to issue proceedings in the small claims court. After 12 months he had his hearing and was awarded the full amount by the judge, including the costs of going to court.
Because the car he’d bought wasn’t of satisfactory quality during the first 30 days of purchase, James was entitled to the short-term right to reject. After the dealership refused to co-operate, we advised that James should get an independent report to confirm the faults. The dealership also had its own report done by a mechanic that it used regularly for MOT tests, which was not considered to be ‘independent evidence’. We then advised him on the small claims court procedure, from how to issue proceedings to how to prepare for the final hearing with the judge.
According to the Consumer Rights Act 2015, goods should be of satisfactory quality. When exercising the short-term right to reject, the burden is on the consumer to provide evidence of the fault. A judge would have to decide, on the balance of probabilities, whether or not the car was to the standard it should have been at the point of sale.
It was likely to have been a deciding factor in the judge’s decision that James’s report was an independent opinion, and that the car broke down so soon after he bought it.
Which? Legal member Robin Dadson came to us for help after important parts of his new car started to fail.
Robin paid around £21,000 for the Skoda Yeti Crossover in March 2013. By January 2016, when he had only driven it for 13,000 miles, he noticed the rear brake discs were corroded.
The original dealer was no longer trading, so he took the car back to its successor. Both the new dealer and Skoda said the problem was fair wear and tear. Skoda said the replacement wouldn’t be covered by warranty because of the time that had elapsed and it refused to take further action.
Ten months later, when Robin took the car in again for a check-up, the condition of the brakes was such that the dealer suggested Robin replace them. It also highlighted a problem with the Haldex pump in the four-wheel drive. The costs of repairing the brake discs and pump was around £300 each. At this stage, Robin came to our lawyers for advice.
We told him that if you pay £21,000 for a car, you could reasonably expect it not to have major parts failing after three and a half years. So although the original dealer had stopped trading, he could still complain to Skoda.
Robin got in touch with Skoda again, which rejected his claim. However, he persisted and, armed with our advice, took his complaint to a higher level. He was then offered a ‘goodwill gesture’ of £300 in relation to the pump. Robin accepted this and reluctantly paid for the brake disc repairs himself, reaching a solution that compensated him for repairing one of the faulty parts and also took into account his having more than three years’ use of the car.
As Robin bought the car before 1 October 2015, his rights are under the Sale of Goods Act 1979 (for contracts after that date it’s the Consumer Rights Act 2015) which says that goods must be of satisfactory quality and fit for purpose. If they’re not, the customer can ask for them to be repaired or replaced within a reasonable time.
It can be tricky to exercise these rights when there is a dispute between the customer and seller over whether the items failed due to wear and tear or due to a breach of contract. So it’s often necessary to get expert opinions.
Driving instructor Mark Burgess paid more than £15,000 for a new VW Polo in April 2010 from Dane Wirral garage.
After eight months, the car developed a water leak so Mark took it to another VW garage, which replaced the coolant cap. Yet the car continued to leak water, even after a subsequent visit that saw part of the car’s emission control system replaced.
Mark then took the car back to Dane Wirral for repair. After two days, it discovered a leaking water pump and replaced it.
But after driving it for another 500 miles, Mark noticed the car was again losing coolant. He returned the car to Dane Wirral – this time for two week while a replacement cylinder head was fitted. And that wasn’t the end of it. The turbo charger, starter motor and injectors all failed over the next 18 months. As a result, Mark contacted Which? Legal Service for advice.
Mark told us he had informed Dane Wirrall when buying the car that it was for business use. Because of this, he could claim losses reasonably foreseeable as a result of the car being in a garage for repair. He’d had to go without it for two weeks and had to hire a dual control car, although VW did pay toward this.
As Mark had financed some of the car through VW Financial Services under a hire purchase agreement, we told him to contact the hire firm.
Mark wrote to the hire firm to say the car wasn’t fit for purpose and he wouldn’t accept further repairs. VW Financial Services refused the claim. We advised him to take the case to the Financial Ombudsman Service (FOS).
His case was assessed by an adjudicator who asked Mark to have the car inspected. As a result more faults were found, including an engine leak. VW repaired these faults, but Mark had to pay to correct a further problem with wheel tracking. The adjudicator refused the complaint. As Mark didn’t agree with an adjudicator’s findings, he asked for the claim to be referred to the Ombudsman.
The Ombudsman found in his favour and awarded £1,705 for travel, distress, inconvenience and loss of revenue.
You can recover damages for losses reasonably foreseeable as a result of a breach of contract. Both parties must reasonably have been able to anticipate these when the contract was entered into.
When Arthur and Sylvi Leitch spent more than £34,000 on a brand-new car, they never thought it would need repairs carried out as soon as they bought it.
But that is what the couple found when they went to pick up the new Kia Sorento from Snows Motor Group in Basingstoke in October 2013. At the dealership, they noticed the top of one of the rear seats hadn’t been fitted with enough padding and the seatbelt support bracket hadn’t been installed properly. They were assured that if they took the car that day, the problems would be fixed as soon as possible.
But when Arthur returned to collect it after the repairs were done, he found the seat in worse condition than before, with additional damage to the back of the driver’s seat. This was again reported to the dealership, which then dealt with other minor issues, but failed to solve the problem with the seat.
At this point the situation had been going on for nearly a year and the couple were soon due to leave for a driving holiday to France, so Arthur contacted Which? Legal for our advice on how to get the situation resolved.
Our lawyers helped the couple with the wording of a letter to send to the dealership, to state their legal rights and have the issue with the car seat put right once and for all. The couple returned from their holiday to find messages from the dealership offering to carry out the required work by replacing the defective seat. This was done to the couple’s satisfaction in early October. The dealership also agreed to pay £200 compensation for the inconvenience that had been caused because of the ongoing problems and the couple accepted this offer.
The Sale of Goods Act 1979 (as amended) says that goods, including cars, must be of satisfactory quality. This means that they must be free from defects (even minor ones). If the goods are defective, the seller could be in breach of contract and, if it is, the buyer has the right in certain circumstances to reject the goods, or to have them repaired or replaced by the seller. If the goods are to be repaired or replaced, the seller will have the choice of which of these options to choose. The decision may come down to what is the most practical and cost-effective option.