Christmas is an important time of the year when we shop around for those long-desired gifts and hope that the recipients of gifts will receive them in good order. But Christmas is not the only time when when we may buy gifts or goods that we use in our daily lives.
We will all be aware to an extent of our rights, usually bound up in guarantees, warranties or through some notion of our Consumer Rights. I also think that there is a school of belief or thought out there, possibly encouraged by some Consumer commentary, that believes that ‘he who shouts loudest’ will win the day if we have a dispute with a retailer. I think that is not helped by some retailers either through their pre-sale actions or in their post-sale reactions.
For example, I was speaking to a senior member of staff for a major retailer the other day and they told me that their own central customer service unit will often instruct staff to simply exchange the product in dispute for a new product. I can see the logic; it lessens pressures on the commercial imperative (to make as much money as quickly as possible without becoming engaged in a dispute) and it potentially promotes the possibility that that particular consumer will remain ‘sticky’ to the brand, but I think that only works or is a viable strategy for small consumable items.
How many times have we heard of the difficulties Consumers face with larger consumable items, such as washing machines, fridges, dryers or cars? In many cases disputes can continue for many months without resolution.
In one case, I was approached by a Consumer called Liz (not her real name). She had bought a used car, a brand that she was familiar with and agreed a price along with the part-exchange of her old vehicle.
On the day she collected the vehicle she was informed that the car had gone through its pre-sale check and no problems were found, but she discovered that the car was wet on the inside; it had become backlogged in the number of vehicles to be delivered that day within the valet queue.
The garage, a well-known, large national dealership, arranged for the car to be covered in the interior with plastic sheeting, assuring Liz that the car would dry out within 24 hours on her drive.
On her drive home, a warning light flashed on her console to indicate that there was a problem with one of her tyres and she called into a petrol station and discovered that the tyres were in good order and at the right pressure.
The next day, she received another warning sign that there was a problem with the tyres but she also discovered that there was a problem with the start/stop fuel-saving facility on the vehicle; it didn’t work!
Liz was familiar with the start/stop facility found in cars and ensured that the operating conditions of the vehicle were set so as to give the stop/start facility the opportunity to kick-in; it did not!
The car was sold with a 3 month warranty for the car, its mechanics and labour, should anything go wrong. On the day she discovered a problem with the stop/start, she contacted the garage and informed them of the 2 faults.
They very quickly agreed that they would have the vehicle back in again and repair it under the warranty.
There was one problem though; Liz was about to go away on holiday for just over 2 months and would not be able to get the vehicle back to the garage.
Despite this, the garage agreed that they would still accept the vehicle under its warranty when she came back. For her part, Liz advised the garage that the vehicle would not be used whilst she was away and would sit on her drive.
So Liz went away on her holiday and when she returned two and a half months later, she discovered that the car would not start. She thought that this was unusual because in her previous trips away, always in the summer months, she never had a problem with any vehicle; they started first time.
Liz charged the battery up and the car started and all appeared to be well. The next morning, when she needed the car to go to work, it failed to start!
She tried to charge it again and encountered the same problem!
So Liz decided, because she needed to use the car, that she would buy a new battery. When she came to change the battery, she found that the old battery was rusted in and had to call for help to release the old battery. Once the new battery was fitted, the car started and she was able to use it for her work.
The next day, as she was travelling to work, another warning sign flashed up, warning her that the air-bags were in danger of being deployed, she was instructed to stop driving the vehicle and contact the dealership straight away.
Liz contacted them immediately, but the garage told her it was nothing to worry about and they agreed to accept the car early, still under the sale warranty; it would not cost Liz a penny!
Liz agreed to have the car repaired.
The dealership also offered to provide Liz with a hire car without charge (with insurance), so that she wouldn’t be inconvenienced; Liz accepted their offer.
All seemed well, the car was to be repaired within a few days and Liz was not inconvenienced.
Then she received a call for the dealership; they claimed that they couldn’t find the problems she was complaining about. Liz found out that they hadn’t taken the car on the road, they had simply looked at it in the workshop. They thought that if there were any problems with the vehicle they may have been caused by an ‘insurance tracker’ fitted to the car; Liz advised that the ‘tracker’ was not hers and surely this should have been found at the time the vehicle underwent its pre-sale check; she did not get a reply to that point!
Liz suggested to them that they drive the car on the road and sure enough, the dealership found the faults that Liz had complained about!
However, they couldn’t determine the cause of the fault and had to send the car to another specialist garage to determine the problem. It was found that there was a problem with an electrical control unit and that they would order one and repair the car.
Liz agreed to this action.
Then another problem occurred; the hire-car was burning fuel at a colossal rate, at roughly 7 miles to the gallon and that was on journeys no more that 20 miles each way!
The dealership agreed to change the hire-car but provided a car that was virtually empty of fuel!
The weeks went by and at first Liz received updates every 2/3 days; essentially the part was on order and they were waiting.
Then the message changed, the part was on a back order and they had no idea when the part would be delivered.
Then the calls stopped. Liz had to make calls or visits to the dealership and found that people were not available.
10 weeks after she had brought the car in for repair, the straw that broke the camels back was when the hire-car flashed up that there was a fault with the tyres; Liz felt that she was trapped in a ground-hog day!
So what to do?
Liz had complained, had been constructive, polite and willing to be guided by the dealership, but she had begun to question her confidence in this car, the quality of the hire cars, the skill-set of the dealership and the most important question; by agreeing with the dealership, had she given them a blank open-ended cheque to deal with her car in any way they saw fit or could she challenge them?
So with Liz, I examined the issues and looked at her Rights.
I determined that through this whole sorry saga, there was nothing that Liz should reproach herself for. Some may argue that she let things run for too long; I disagree; she reacted to the problem and the representations, proportionally and correctly!
So we looked at the issues of breach of contract, whether the contract was delivered either negligently or recklessly, whether the vehicle had been misrepresented, whether those representations had caused her to make an ‘economic decision’ she wouldn’t have made otherwise and whether an offence had been committed under the Unfair Trading Regulations.
Despite the relevance of those options there existed a clearer route toward a resolution for Liz under the Consumer Rights Act.
This is an important piece of Consumer Legislation which started life as the EU’s Consumer Rights Directive. All Member States were required to implement the Directive into their legal systems; hence the Act within the UK.
On a side note, quite what will happen to its provisions after Brexit remains to be seen!
So I helped Liz write a formal letter of complaint, because one had not been sent, in this dispute.
In any Consumer complaint it is vitally important that you put into writing the nature of your dispute.
My advice is to always formally put the complaint in writing and send it by post to the company concerned; you can also send a copy of the letter at the same time by e mail; for me, there is something tangible with a hard copy letter received in the post (‘signed for’) whereas a digital version has the potential to get lost or forgotten!
Within Liz’s letter, she discussed all the problems with the vehicle and how they had dealt with it. But, in the letter, she also set out her Rights under the Consumer Rights Act; here are the key points she raised; she wrote:
“For the present I shall only deal with the Consumer Rights Act 2015 Rights, without prejudice to any rights I have in Contract, Misrepresentation and rights under the Unfair Trading Regulations 2008.
The principal rights are:
- Section 9 - That the Goods must be of a satisfactory quality (please refer to the issues I have set out above which demonstrate that the car fails on this point);
- Section 10 - That the goods must be fit for a particular purpose (please refer to the issues I have set out above which demonstrate that the car fails on this point);
- Section 20 - This sets out my right to reject the goods;
- Section 22 - This provides for my short-term right to reject (within 30 days);
- Section 22 (6) - This specifically states: “If the Consumer requests or agrees to the repair of replacement of goods, the period mentioned in subsection (3) or (4) stops running for the length of the waiting period” - The time as I stated, started on the day I bought the car and suspended when I booked the car in for repair 2 days later - Listeners should bear in mind that this is an important point - the suspension of the short-term right to reject the goods;
- Section 22 (7) - This confirms the actions I have taken to exercise that right by informing you and further confirmed by this letter and e mail with today’s time-stamp;
- Section 23 (2) - This confirms my right to a repair and that you must carry out that repair within a reasonable time and without inconvenience to me (you will naturally cite that you have provided a hire car - my position is that the time for the repair is open-ended, without an end-date and therefore unreasonable and therefore inconvenient - if necessary, I will define inconvenient);
- Section 23 (5) - This defines how to calculate what is a reasonable time for the repair;
- Section 23 (6) - This concerns how a consumer must give sufficient time for a repair, it states: “A Consumer who requires or agrees to the repair of goods cannot require the trader to replace them, or exercise the short-term right to reject, without giving the trader a reasonable time to repair them (unless giving the trader that time would cause significant inconvenience to the consumer)” - It is clear from my actions I have given you a reasonable time - I am being presented with an open-ended without-end position before the car is repaired - in these circumstances, I do not fall foul of this section as I have given you sufficient time to repair, hence my invocation of my right to reject the goods;
- Section 23 (8) - This defines what is meant by repair;
- Section 24 - This provides for my final right to reject.
For the present, this summary of my rights should not be considered as exhaustive”.
So Liz sent her letter without demanding any timeframe for action and awaited their response.
The response received was regrettably typical of many companies; a complete denial that they failed; failure to deal with the points that they raised and, a reinterpretation of Rights, despite the fact that they were set out very clearly indeed!
So not deterred, Liz sent another letter.
In the second letter she made the following points:
"I refer to your comments within the latter part of the ‘Stop/Start’ section of your e mail along with your conclusion. In essence you have rejected:
- My Right to Reject (STTR);
- You assert that the car is of ‘satisfactory quality;
- You now claim that the fault is minor;
- You claim that the vehicle is drivable;
- You claim that I could drive the vehicle;
- You claim you have provided a benefit to me through the use of a hire vehicle at no cost to me;
- You claim that the vehicle repair will be completed at the ‘earliest opportunity once the part is available to us’.
At the risk of repeating myself, either you have misunderstood the law or those advising you have failed to understand it.
- I bought the vehicle in good faith;
- I bought the vehicle on your assertion that the vehicle had been thoroughly tested and checked before purchase;
- Upon receiving the vehicle I experienced faults with the vehicle (please see the timeline in my previous correspondence), which if a proper and timely pre-sale check had been carried out with due diligence, those faults would have been discovered;
- It is clear that there are/were a catalogue of faults with the vehicle which according to the vehicle’s onboard computer and assessment by yourselves required urgent repairs;
- As a reasonable Consumer, I have acted with good faith and transparency and accepted the repair, however
- As a reasonable Consumer, I should expect that any such repairs should be carried out in a timely fashion;
- 9 weeks is not timely nor is it reasonable given how supply chains work - I am not convinced that all has been done to expedite this repair;
- Nor am I convinced by your assertion that the car is now apparently “drivable”;
- I continue to be inconvenienced by the problems with this car. You of course have been at pains to point out the implied favour of a hire car, however:
- Since purchasing this car I have not been able to enjoy the amenity of the car;
- Because of the uncertainty of the car and my hope for its return fully repaired, I have been paying car insurance on a product I cannot use nor expect to use in the near future;
- The car was bought because of my familiarity with the model;
- The car was bought to fit on our small drive;
- The hire car can only be driven by me and is not capable of being driven by my husband when there is a need to ‘swop’ cars;
- Because of all the problems with this car (please see my previous correspondence), and your lack of urgency in its repair, along with your latest assertion that there is nothing wrong with the car, I have lost all confidence in its quality and fitness for purpose.
Again, at the risk of repeating myself, I shall continue to deal with the Consumer Rights Act 2015 Rights, without prejudice to any rights I clearly have in Contract, Misrepresentation and rights under the Unfair Trading Regulations 2008.
In my previous correspondence I set out the relevant sections within the Consumer Rights Act that I am relying on; you have chosen to be selective.
I would specifically point to my rights under Sections 22(6), 22(7), 23(2) - and here I set out issues of reasonableness and I again repeat those, 23(5), 23(6) along with my comments and 24.
- You have failed to deal with the “reasonableness” point;
- You have failed to address the open-ended nature of your actions;
- You have endeavoured or implied to me that the problems are now minor and that the vehicle is drivable;
- This latter point could persuade a less resolute person to receive the vehicle back in an un-repaired condition, thereby extending the period for the repair without regard to my Consumer Rights;
- You failed in the pre-sale assessment of the vehicle;
- You have failed to act with due diligence;
- You have failed to demonstrate the requisite skill and care of a reasonable car dealership;
- You have failed to provide a full written detailed report on the problems associated with my complaints about this vehicle;
- You are failing in the delivery of my Consumer Rights;
- You have failed or are failing to expedite the repair of this vehicle;
- You have failed to properly investigate beyond your wider sources the availability of a Body Control Module;
- You have failed to acknowledge that I have not had proper enjoyment or amenity of the vehicle;
- If you assert that you have not failed in any of these aspects then it is my position that you have been reckless or negligent in your delivery of this contract and my rights.
Apart from my clear rights in law which I have already set out now on 2 occasions and to help you understand the serious nature of your failures, recklessness or negligence, I am advising you that I shall rely on several case authorities in support of my position:
- J & H Ritchie Ltd v Lloyd Ltd (2007);
- Gerb.Weber GmbH v Jurgen Wittmer;
- Ingrid Putz v Medianess Electronics GmbH;
- Bernstein (1987) 2 ALL ER 220;
- True (UK) Ltd v Tokmakidis GmbH (2000);
At this stage I do not intend to carry out further research on case law but if required I shall extend that search along with the attendant costs associated with that activity".
So briefly, Liz dealt with each of the points they raised and provided a rebuttal.
Then she set out her interpretation of what they were saying to her and where she thought they had failed. She then set out some Consumer Rights cases which dealt with actions under Consumer Rights Legislation and the reasonableness of rejection, whilst maintaining her position on Contract, Misrepresentation and Unfair Trading Regulation possibilities.
Liz also researched complaints made against the dealership through reviews and found that other Consumers had suffered with similar problems or problems with other disputes. She advised the company of these public reviews and that she reserved her right to trace those Consumers and obtain statements as to their experience to demonstrate how poorly their sales and after-sales representations and service really were!
She then gave them 7 working days to resolve and repair the car or to accept her Rights to short-term rejection and repay the monies she had already paid.
Liz then advised that she would after the 7 working day deadline then seek further advices and issue proceedings for a money claim online, without further recourse to them!
She also offered that she would suspend any court action if they indicated that they wished to resolve the matter through mediation; she also made the point that she would present all correspondence to the court, if the case was found in her favour on the question of costs.
In the interim, Liz also sent details of her complaint to the Head Office of the Group who own the dealership; she did this so as to demonstrate that she was doing everything she could to try and resolve the matter because the court would expect that she had done so.
Liz heard nothing for 6 working days and it looked as if she would have to prepare her papers for court, when, on the 7th day (this almost sounds biblical), the dealership made contact; miraculously they had found the part and the car was being repaired as they spoke; they would also pay for the replacement battery and fill her returned car with fuel!
A result - but - was it really necessary to cause an ordinary Consumer to have to jump through hoops and suffer the stress of having to go to court; of course not?
For those companies listening to this Podcast, let this be a lesson on how not to do business with your customers because if you do, you are going to find that more and more Consumers are going to wise up and become more savvy about their Rights under the Consumer Rights Act!
Until the next time
(This Masterclass was delivered in a Podcast from @ConsumerFrank which can be found here)