Another Caveat Emptor Thread - with a slight twist
Discussion
chriswg said:
One other thing that I've just noticed is that I don't think I have Audi Drive Select. That is the button on the central console where you can switch between dynamic / comfort / sport modes right? I've just double checked and there are no buttons there.
It certainly is on the dashboard above the heating controls on the right on the B8 S4 which is obviously a very similar car. Could it have been moved onto the MMI system (computer in the middle of the dashboard) on that year of S5 though? It might be there in the menu where you're adjusting the settings for the car.chriswg said:
One other thing that I've just noticed is that I don't think I have Audi Drive Select. That is the button on the central console where you can switch between dynamic / comfort / sport modes right? I've just double checked and there are no buttons there.
Tried looking in the handbook/manual?Sorry if already posted, but do you know;
a) when his car advert went 'live'?
b) the date of the first recorded failure on the ECU?
I would think this would be quite key, if the advert went live just days after the first fault then ....
Either way you can present if it suits your case or ignore if not.
a) when his car advert went 'live'?
b) the date of the first recorded failure on the ECU?
I would think this would be quite key, if the advert went live just days after the first fault then ....
Either way you can present if it suits your case or ignore if not.
The way that advert is written looks like a trader rather than a private seller. There's no suggestion that he's actually trade is there? I've been following this thread rather than contributing, and I'm still pretty pessimisic that the representations made don't necessarily contradict a few warning messages which may have come up and gone away again (even if you can prove that happened). But if he's a trader really then that would obviously be very helpful.
Jobbo said:
The way that advert is written looks like a trader rather than a private seller. There's no suggestion that he's actually trade is there? I've been following this thread rather than contributing, and I'm still pretty pessimisic that the representations made don't necessarily contradict a few warning messages which may have come up and gone away again (even if you can prove that happened). But if he's a trader really then that would obviously be very helpful.
I'd be inclined to agree. Worth googling his email address and mobile number, etc
Vaud said:
I'd be inclined to agree. Worth googling his email address and mobile number, etc
Alas he's an IT Consultant. I can't find any sign that he does anything else on the side.The first recorded ECU warning was on the 18th August, I only started hunting on Autotrader around the 23rd and it was live then. I don't know since when though and the guy at Autotrader couldn't confirm a listed date either. There is also the problem that anyone trying to cover it up could clear down the fault codes with a VAGcom. He might have been living with the problem for months, or it may have manifested for the first time after he listed the car.
Either way, it's a bit of a stretch to describe the car as "Excellent condition throughout. APR software modified for over 1 year, runs beautifully. MUST DRIVE!" knowing what an awful fault was happening.
I have now instructed a different solicitor to get the ball rolling with a legal letter outlining the issues and what we expect for a resolution as well as next escalation steps.
If it goes to court the solicitor said we have a good chance of winning as a misrepresentation case and having most of the legal costs awarded.
CYMR0 said:
That's a bit high but your loss is, realistically, the cost of a refurbed gearbox. You thought you were getting a six-year-old box in good working order that was attached to a car.
That's undoubtedly a small claim, so the legal costs wouldn't be recoverable.
At £200/hour, writing the letter (with an hour's appointment to take instructions) is an hour's work on drafting. After that, it's not hard for them to spend three full days' prep and two days' advocacy for a trial. Boom - £10k.
I agree, and I'd probably be saying something similar if someone phoned up out of the blue and gave me the general background (though we do usually offer a fixed fee initial meeting for £90).That's undoubtedly a small claim, so the legal costs wouldn't be recoverable.
At £200/hour, writing the letter (with an hour's appointment to take instructions) is an hour's work on drafting. After that, it's not hard for them to spend three full days' prep and two days' advocacy for a trial. Boom - £10k.
My usual advice in matters like this is that it's rarely commercially sensible to instruct solicitors to deal with a claim like this. If they don't have legal expenses cover as part of their insurance, it's generally better to take advice on specific issues as they arise to keep the costs down, that there's no reason they can't deal with the small claims hearing themselves but, if they REALLY want representation at the trial, consider using a junior direct access barrister.
chriswg said:
If it goes to court the solicitor said we have a good chance of winning as a misrepresentation case and having most of the legal costs awarded.
Be wary of solicitors being over-confident. They often don't care whether you win or lose, as it doesn't affect their payment (in the majority of instances).There isn't enough legal precedent for him to be confident about convincing a SCC, particularly when we throw in the curveball of expert statements.
C70R said:
1. Be wary of solicitors being over-confident. They often don't care whether you win or lose, as it doesn't affect their payment (in the majority of instances).
2. There isn't enough legal precedent for him to be confident about convincing a SCC, particularly when we throw in the curveball of expert statements.
1. I can only speak for myself but I'm always wary of appearing over-confident because it then makes it harder to explain if it doesn't go the client's way in the end! It also runs the risk of the client making a complaint, which is a ball ache no solicitor wants to have to deal with, especially when it's not justified to begin with.2. There isn't enough legal precedent for him to be confident about convincing a SCC, particularly when we throw in the curveball of expert statements.
2. I agree entirely. OP - costs are only recoverable in small claims proceedings (anything less than £10K) where you can persuade the judge that the other side has behaved so manifestly unreasonably as to mean that the court should, in effect, punish that conduct in costs. I would be wary of advising a client that there is "a good chance" of recovering those costs - it's a sanction used by the court pretty sparingly in my experience.
OP you have my sympathy for your situation, but I have to ask - you've mentioned that financially you will struggle to meet the cost of the gearbox repair or replacement. In this case, are you not concerned that you are taking a significant risk by racking up legal expenses that you may not recoup?
You stand to end up with a big legal bill to go along with your gearbox bill if you lose, or just a big legal bill if you win. In which case it may end up a pyrrhic victory.
You've had a lot of advice here that small claims can be dealt with yourself - I think that's worth considering.
You stand to end up with a big legal bill to go along with your gearbox bill if you lose, or just a big legal bill if you win. In which case it may end up a pyrrhic victory.
You've had a lot of advice here that small claims can be dealt with yourself - I think that's worth considering.
_dobbo_ said:
You've had a lot of advice here that small claims can be dealt with yourself - I think that's worth considering.
I've been thinking about that a lot and I still don't know for sure which road I will go down. If I decide to go down the legal route and I can show there is a reasonable chance that costs will be awarded, that is another incentive for the seller to deal before the case.If I just represent myself where is the incentive for the seller to try and negotiate a settlement? He's confident his 'sold as seen' receipt will cover him, and he's probably willing to risk it for a £2.5k settlement (that he probably knows he should be paying). If I add in the prospect of an additional £15k of legal bills he has a more serious decision to make.
chriswg said:
I've been thinking about that a lot and I still don't know for sure which road I will go down. If I decide to go down the legal route and I can show there is a reasonable chance that costs will be awarded, that is another incentive for the seller to deal before the case.
If I just represent myself where is the incentive for the seller to try and negotiate a settlement? He's confident his 'sold as seen' receipt will cover him, and he's probably willing to risk it for a £2.5k settlement (that he probably knows he should be paying). If I add in the prospect of an additional £15k of legal bills he has a more serious decision to make.
Never throw bad money after good.If I just represent myself where is the incentive for the seller to try and negotiate a settlement? He's confident his 'sold as seen' receipt will cover him, and he's probably willing to risk it for a £2.5k settlement (that he probably knows he should be paying). If I add in the prospect of an additional £15k of legal bills he has a more serious decision to make.
You have a small claims case. You don't need lawyers and trying to frighten the seller with £15k legal bills is ludicrous.
chriswg said:
_dobbo_ said:
You've had a lot of advice here that small claims can be dealt with yourself - I think that's worth considering.
I've been thinking about that a lot and I still don't know for sure which road I will go down. If I decide to go down the legal route and I can show there is a reasonable chance that costs will be awarded, that is another incentive for the seller to deal before the case.If I just represent myself where is the incentive for the seller to try and negotiate a settlement? He's confident his 'sold as seen' receipt will cover him, and he's probably willing to risk it for a £2.5k settlement (that he probably knows he should be paying). If I add in the prospect of an additional £15k of legal bills he has a more serious decision to make.
If that solicitor has genuinely stated to you that you will likely get your costs paid - walk away - please.
If you write a letter, there's no risk involved, nothing to lose. If you start putting in decent sums now, you won't be able to walk away without a loss, and any settlement will be significantly reduced.
There's also what's often referred to as the lottery of small claims. For a myriad of random reasons on the day you may not win. A couple of hundred quid tops on filing fees is a good risk to get £2500. A four figure sum in legal bills in not a good risk.
ETA: Especially as there's a 95% chance or more they won't be covered even if you win.
Edited by JustinP1 on Friday 16th September 16:13
Lurking Lawyer said:
1. I can only speak for myself but I'm always wary of appearing over-confident because it then makes it harder to explain if it doesn't go the client's way in the end! It also runs the risk of the client making a complaint, which is a ball ache no solicitor wants to have to deal with, especially when it's not justified to begin with.
agtlaw said:
Get a better solicitor.
Indeed. The last person I ever want to deal with is a cocksure solicitor...I can only echo what has been said by Lurking Lawyer and ATG. A lawyer who tells you there is a "strong chance" of recovering costs in a small claim, is one I would not consider proceeding with.
Unless you are a bit of a wallflower, with help from people on here you can quite comfortably bring the claim yourself. We may even help for example with a letter before action should you wish to send one, a without prejudice letter if you wanted to start the ball rolling that way and so on...
A small claim is very, very unlikely to give rise to a costs award.
Unless you are a bit of a wallflower, with help from people on here you can quite comfortably bring the claim yourself. We may even help for example with a letter before action should you wish to send one, a without prejudice letter if you wanted to start the ball rolling that way and so on...
A small claim is very, very unlikely to give rise to a costs award.
hutchst said:
...and don't lose sight of the fact that you don't even know whether the AutoTrader advert on which your claim is based was written before the fault first appeared in the ECU.
However, the seller could and should have corrected the autotrader advert - that is what the OP relied upon. Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff