Do you think you’ve been had? Perhaps you bought a defective motorhome or accessory, or a campsite wasn’t as good as it looked in an advertisement.
You may think you are due compensation. You may be thinking of going to court. If so, you need to be careful – not angry. First, follow our guide through the maze of claims, compensation, and court cases.
HOW TO BEGIN
Rule number one: going to court is your last resort. It will cost you a lot of time and money, and the outcome is often uncertain. So before you even consider legal action, follow the steps below – and remember that if you end up in court, your actions in these early stages
may come back to haunt you.
So don’t get mad; your end goal is to get even.
Begin by putting your complaint to the seller, in writing. Set out in detail what
is wrong and why they should compensate you. Give the seller enough time to respond and the chance to investigate your complaint. Don’t be fobbed off by a seller who says the manufacturer or supplier is to blame: if selling that product is their usual business, they are responsible for any defects.
The seller may later claim some compensation from the manufacturer or supplier, but that is not your problem. At this stage, be open to resolving your dispute by negotiation, mediation, arbitration or some other means.
The seller will probably know about your legal rights – so they will feel safe in ignoring outrageous claims that will fail in court. But they will take a lot more care if you take into account your legal rights – you need to show you’re in the know. Below, we aim to help you through the initial stages of your claim.
YOUR RIGHTS
If you bought a defective motorcaravan before 31 March 2003, you would have had a legal right to reject it, or keep
it and claim compensation – but you had to prove it was defective when you bought it. Then, the courts could not usually enforce a manufacturer’s warranty or guarantee, although manufacturers often honoured them as a matter of goodwill. And, you had no legal right to demand a replacement or a repair, although decent dealers usually did this.
However, on 31 March 2003 a European directive came into force and improved your rights. On that date the Sale and Supply of Goods to Consumers Regulations 2002 updated the Sale of Goods Act 1979 so that the seller now has to repair or replace your motorhome if it is defective. If this is impossible, too costly, or cannot be done in a reasonable amount of time, you are entitled to a price reduction. You are also entitled to return the van and get your money back.
You have the same rights if repairing or replacing the van causes you major inconvenience. In short, you no longer have to rely on the dealer’s goodwill. Likewise, the courts can now force a manufacturer to live up to its guarantees and warranties.
Changes last March included another important right, too:
if a defect appears within six months of you taking delivery, the law assumes it was there when you bought the van, unless the dealer can prove otherwise.
IF IT GOES TO COURT ....
If all negotiation with the seller fails to satisfy, then you may reluctantly decide to go to court.
You start by issuing a claim form in your local county court. If you are claiming £5000 or less, you can obtain a hearing before a district judge in the ‘small-claims track’. If you are claiming more than £5000 but less than £15,000, you are put on the ‘fast track’ – which is not as quick as it sounds, and can be expensive.
On the small-claims track, hearings are relatively informal. All the parties sit around a table, and you can argue your own case if you want. You can use a solicitor, but the judge will not make the seller pay your legal costs, even if you win, unless they think the seller has acted unreasonably. Likewise, if you lose you will not have to pay your opponent’s legal costs unless the judge decides that you acted unreasonably.
The winner will, however, get limited expenses to cover costs incurred by going to court.
On the fast track, your case will be heard in court within about 30 weeks. The hearing will be more formal than for a small claim (see above): for instance, the case is held in open court, so anyone can enter and watch. It is also more risky, as the loser is likely to end up paying all or some of the winner’s legal costs.
You can present your own case, but you might be wiser to hire a solicitor. There is some truth in the old adage that ‘a man who represents himself in court has a fool for a client’.
A solicitor could cost £3000 to £7000 for a fast-track claim, although some might agree to a no-win-no-fee agreement. You might also be advised to hire a barrister to present the case at trial.
If you have an insurance policy, read the small print to see whether it covers legal expenses. There is legal aid for those who are not so well off (from the Community Legal Service Fund) but if you can afford to run a motorhome, you’re unlikely to qualify.
Once you are in court, the law takes over and events may surprise you. So, to give you an idea of where you might stand, here are some typical scenarios of motorcaravanners who have felt cheated:
Case No1: SATISFACTION MAY NOT BE GUARANTEED
“I bought a secondhand motorhome, but when I got home I realised its condition wasn’t as good as I had first thought. I called the dealer and demanded compensation, but he said it was sold as seen and it wasn’t his problem.”
If you had bought the vehicle from a private seller you would have no comeback. In such cases, ‘sold as seen’ effectively means ‘buyer beware’ – and you buy at your own risk. But this does not apply where you buy from a dealer in business.
The law is on the side of the dealer if you ought to have spotted the defects. Section 14 of the Sale of Goods Act 1979 entitles you to a van of satisfactory quality, but this condition does not apply if you examine before you buy, and that examination ought to have revealed the defects: if you missed obvious defects, you have no legal remedy; likewise if the dealer has specifically brought defects to your attention.
Only if the defects were hidden or latent (see the damp problem discussed in the following case study) can you sue for compensation based on unsatisfactory quality. In such a case, the court might decide that the vehicle was not in a reasonable condition for its price – and what is satisfactory will depend on the price paid and anything else that is relevant.
Case No2: DOUBLE DEALER?
“I bought a motorcaravan that the salesperson said was free of damp. Some time later, another dealer discovered it was riddled with damp. I believe that the damp was there when I bought it. Is it too late for compensation or a replacement?”
Let’s assume that the van was damp when you bought it and that you were persuaded to buy it partly because he told you it wasn’t damp. Section 2 of the Misrepresentation Act 1967 states that if a dealer says something that persuades you to buy, and that statement turns out to be untrue, you should be compensated for losses suffered because of that false statement.
To understand your legal position with this law, you need to be aware of three legal possibilities – the good news being that the law is on your side in all three cases (the quote marks signify legal terms that may have complex legal meanings):
1. The dealer was ‘careless’:
the law doesn’t care to judge whether or not he knew the van was damp, it just says that as a dealer he ought to have known.
2. The dealer made ‘innocent misrepresentation’: he really believed the van wasn’t damp.
3. The dealer was ‘fraudulent’: he knew perfectly well that the van was damp.
Looking at possibility number one, it is up to the dealer to prove he was not ‘careless’ when he said the van was not damp. If he cannot do this he will be liable for all your losses flowing directly from his false statement. That could include the cost of repairs, cost of hiring a van while those repairs are being made, or the cost of a replacement if the damp van is beyond repair. You could also claim incidental expenses you may have incurred.
Which takes us to possibility number two. Even if he can prove he was not ‘careless’,
the statement was still false
and he has made ‘innocent misrepresentation’. In this case you are entitled only to cancel the contract (return the van and get your money back). This is called ‘rescission’. However, a court can award compensation instead of insisting on rescission.
If yours is a case of ‘innocent misrepresentation’ you must be careful, because your right to rescind may be lost. For example, you may have waited too long to cancel the contract, or you may have modified your vehicle to such an extent that it can’t be restored to its original state. In short, you may then be lumbered with it.
This brings us to possibility number three: fraud. It is generally unwise to allege that the dealer deliberately deceived you as you will have to prove he was fraudulent, and he may counter claim that you have libelled him. It is safer to say the misrepresentation was innocent or ‘careless’. However, if you can prove fraud then you can be compensated for all your losses directly resulting from the deceitful statement – as in the case of the dealer being ‘careless’.
Section 1 of the Trade Descriptions Act 1968 states that it is a criminal offence for a dealer to knowingly apply a false description to goods in the course of business, or knowingly supply such goods. You can tell your local Trading Standards Office that an offence was committed and ask them to investigate and prosecute.
This will directly benefit you only if you also request the prosecutor to ask the court to make a compensation order in your favour if the dealer is convicted. You would be treated as a victim of crime, and the compensation would reflect the difference in value between a damp motorhome and one in excellent condition. However, the magistrates cannot award you more than £5000 compensation per offence, and that compensation would reduce the damages you might later be awarded in a civil court, for misrepresentation or breach of contract.
Another law is also relevant here. Section 14 of the Sale of Goods Act 1979 assumes your contract with the dealer says the van will be of satisfactory quality – even if there is no such clause. If it was unreasonable to expect you to discover the damp when you inspected the van and you can prove it was damp when you bought it, then the ‘existing’ law says the van is not of satisfactory quality and the dealer is in breach of contract.
If you have not had the van too long, you can reject it and demand your money back plus any reasonable costs you may have incurred.
The law doesn’t say how quickly you must reject the motorhome, but after a month or two you may face an uphill struggle, particularly if you have been using it. However, if the court says you have kept the vehicle too long, or if you want to keep it, you can claim back part of what you paid, to get the price down to the actual value. You can also recover any other expenditure, as before.
Instead of using the ‘existing’ law you could demand repair or replacement under the ‘new’ law which I will discuss in detail in the next case study.
Richard Ladmore
• Next month, we illustrate the new laws with more case studies from Richard Ladmore, who is a former practising barrister now writing on legal matters.
|
