Dealers often feel that consumers have an unfair advantage in court. This has some truth, particularly if a car goes wrong in the first six months of ownership. However, we help dealers win court cases against consumers every week and so have first-hand knowledge that consumers do not get it all their own way.
If we feel your case is weak, we will tell you. If we feel you have a good case, we will work with you whether you decide to settle or whether you decide to go all the way to court.
We recently finished working on a three year case for one of our franchise dealers. The consumer was quite the character and, to put it mildly, was downright rude and abusive to both our client and us. The consumer had already backed a car at a previous dealership and enjoyed nine months of free motoring as a result of that dealer’s goodwill. The consumer tried to do the same in this case, except by the time the matter got to court, they had driven over 40,000 miles in their allegedly unsatisfactory quality car. A three days hearing was booked for which barrister fees were in excess of £10k. As such, our client made a really good offer before the hearing to purchase the car back at just above its market value (which coincidentally was in the same ballpark as making a reasonable deduction for usage). The consumer declined insisting they wanted around £20k more than they had paid for the car three years earlier.
In court, our clients came across as fair, reasonable and decent people, which they indeed are. The consumer not so much.
In summing up, the judge made reference to previous case law which requires courts to pay more attention to evidence from the time of the event, including documentation, rather than recollections made later in the process. The previous case law had this to say on the subject:
“Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…”
As one quick example, in this case, the consumer tried to say he had been subjected to a “torrent of abuse” when at the time, their own email had referred to the incident as our client getting “shirty”. These things matter as a judge will be looking at those in court to determine who is telling the truth and, therefore, who is most credible. Credibility matters as does being able to evidence you have acted reasonably.
There are many good takeaways from this case, with perhaps the top three being:
1. Get everything in writing. He said/she said will not get you across the line if the consumer decides to lie or exaggerate. This of course applies to sales paperwork/predelivery checks as much as it does communication with a complaining consumer.
2. Act reasonably rather than allow yourself to be wound up by the consumer. Not always easy but that is why we are here. We can say all the right things on your behalf in our correspondence with the consumer and give you objective advice on the situation based on our unrivalled experience and knowledge.
On average 55 vulnerabilities are identified daily.
What can I do?
Review your organisations priorities and ask ‘can we afford a breach?’. What do I do during an incident? Who do I involve? When do I involve the ICO?
If you’re unable to answers these questions, you need help from the experts.
3. Unless the matter is under £10k and stays in the Small Claims track, legal fees for going to court are expensive and so, it is always worth considering a deal, as losing is a very expensive business.
How expensive? Well, for this consumer who lost, very expensive. They now have to pay our client’s £10k barrister costs plus the £77k legal costs of the manufacturer, who the consumer had added to the claim, which we suspect was in the hope it would put pressure on our client to settle.
A total of £87k for losing. And it would have been much worse for the consumer if our three years of work had been charged at an hourly rate and not as part of our annual membership package.
