A member recently sold a BMW 135i, which the consumer complained about shortly after the sale. It was an issue with the driveshaft which the repairers, who had also prepped the car prior to sale, considered could be linked to the way the car had been driven, noting that the wheels, which had been changed prior to sale a couple of hundred miles earlier, were already showing signs of wear.
A couple of months later, the customer complained again and provided a third-party mechanic’s diagnosis of turbo failure and says he is exercising his right of rejection.
Our member says, fine, we will collect the vehicle and, subject to a satisfactory inspection, save for the turbo issue, we will refund you minus a deduction for use.
The consumer was indignant. “my final right has been exercised”, “my decision is final”, “I have provided satisfactory evidence”, “I will not release the vehicle until the money is simultaneously exchanged”, etc., over eight letters in a very short space of time.
This customer’s vociferous reluctance to allow our client an inspection of the vehicle, despite having agreed to accept a rejection, only served to raise suspicion, particularly given the observations by the garage when it was returned for the driveshaft issue about his treatment of the car.
Third-party diagnosis or evidence might be enough to show a fault which gives rise to the right of rejection, and occasionally parties in dispute agree to the acquisition of jointly instructed expert reports before litigation has commenced. Certainly, most of the time agreements are reached in terms of return or collection and the deduction for use, but occasionally you get customers like this one, who for reasons which are unclear, besides that they have something to hide, want everything on their terms.
If consumer-caused damage has reduced the value of the vehicle, the trader is not required to absorb that loss. The right to reject and receive a refund under the Consumer Rights Act 2015 (CRA 2015) is not intended to place the consumer in a better position than if the contract had not been breached.
Where damage has occurred after sale and is unrelated to any alleged defect present at sale, the trader is entitled to make a deduction reflecting the diminished value attributable to damage since sale. Nowhere within the CRA 2015 is there a prohibition on inspection. In fact, the structure of the Act assumes that assessment will take place.
The Act provides that a refund within 14 days beginning with the day on which the trader agrees that the consumer is entitled to a refund implying an assumption the refund has been agreed. To reach an agreement requires mutual reasonableness. That is the definition of agreement.
The Act also requires the consumer to make the goods available for collection which in this case the consumer is refusing to do unless he is reimbursed simultaneously. Nowhere does it say a trader is required to give a refund on collection. Parliament did not intend to create a “refund on demand” regime.
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Case law and guidance consistently emphasise proportionality and reasonableness. A trader requesting an inspection within a reasonable timeframe, at no cost or inconvenience to the consumer, is acting entirely in line with both the letter and spirit of the law.
Conversely, a blanket refusal by a consumer to permit inspection risks undermining their own claim, by their conduct.
If you have had the same issue or a similar problem, why not call our legal team at Lawgistics? Our telephone helpline and casework service can arrange inspections and negotiate appropriate deductions for use.
