English Solicitor Required, regarding SOGA and car

[Heartworm]

Hi,

I thought I would ask here first, seeing as we have a group of people in the know. I am looking for a solicitor to help with the rejection of a car. I am based in Scotland, and unfortunately the terms & conditions of a car I purchased state I can only go to court in England and Wales (although this was only informed to me after I purchased the car). I have seen a solicitor in Scotland, who agrees I have a strong case regarding rejection of the car and it has now reached the stage of requiring to appoint a solicitor in England to file court papers. Can anyone recommend, or is anyone a Solicitor in this area? My solicitor has said he can arrange this, but if anyone has been recommended we will go down that route.

In short, Purchased Car on the 25th October, delivered 30th of October, Road tax starts on 1st of November, Car breaks down on the 1st of November (After 4 miles) and has been in the garage for over 3 months in several different spells since, but the faults have still not been repaired on the car, including faults reported on the day of delivery.

[aw51 121565]

Was the car brand new? If so, what car is it (in general terms)?

If not brand new, please state its age, its mileage, what car it is (in general terms) and how much you paid (a ballpark figure).

In either case, please detail the nature of the breakdowns, times 'in dock' etc (in general terms).

This will help us to give you reasonable advice and not generic info (which might not be any use at all).

[Heartworm]

The car was approved used from Land Rover Defender with 35,000 miles on the clock at slightly more than £20,000 and 5 1/2 years old.

The car was sold as

dealer said:

"“All our cars are fully inspected and reconditioned by factory trained technicians”,

along with the land rover promise which says:

Land Rover Approved USed Promise said:

The Land Rover Approved Programme has been designed to ensure that you receive the same level of quality, service and customer satisfaction that you would when buying a new vehicle. Peace of mind comes as standard when you choose one of our Approved Used Vehicles. You can browse our nationwide database in confidence; every vehicle has been thoroughly checked by specialist technicians and is covered by our own comprehensive warranty, the only warranty built by Land Rover

1st of November – 22nd November, repair time 20 days.
24th November – 29th January, December, repair time 36 days,
At this point the car was rejected, and was only on the road again on the 28th of February as they had said they would repair the still outstanding faults.
14th March – March 22nd, repair time 8 days,
4th April – 12th April, Repair time 8 days,
18th April – 25th April. Informed dealer I Wouldn't be accepting the car back again and was rejecting it on the 22nd.


Car was initially rejected on the 2nd of January, and dealer repaired the car AFTER I rejected it, I beleive this makes a difference.

Edited by Heartworm on Tuesday 13th May 19:59

Edited by Heartworm on Tuesday 13th May 20:11

[Heartworm]

Faults so far are:

Steering Alignment was out and required attention
Electric Window not working
heated seat not working
Speedometer not working
Rattle/tapping nouse from engine with damage to cylinder head, injectors were not loose.
Intermittant fault on side light
Ignition lock sticking required replaced
Intermittent wiper not working correctly
New clutch assembly required
Engine over heating (After previous work) and leaking
Engine had oil leak - separate to the other engine issues.

Currently still has issues with the starter motor, that have been there since the car was delievered.

[anonymous-user]

Arj Arul at M Law, Newbury.

[Heartworm]

Breadvan72 said:

Arj Arul at M Law, Newbury.

Do you have any contact details, my googling is poor this morning.

[BOF]

Is dealer in Essex perchance?

BOF

[Heartworm]

It would be a dealership in Wales, apparently this quality of car is not unusual from them, despite being an approved dealer. Wish I had known before but have dealt with another Branch but of the dealership before. They also took payment from me in Scotland, from a Scottish Branch, so not sure they can really make it be English courts, but so be it.

Edited by Heartworm on Wednesday 14th May 13:20

[anonymous-user]

There are EU rules that govern the selection of forum for legal disputes. These have no application between different countries within the UK.

EDIT: Strictly true but in context potentially wrong because I had forgotten that domestic statute has adopted a version of the rules for intra UK disputes. See below and also page 2. Sorry for potential bum steer. BUT NOTE: if choice of forum clause in contract is valid it trumps the other statutory rules. See page 2 below.

In contract, the governing law and (sometimes) the choice of forum is determined by choice or inferred from circumstances when the contract is made and not after it. When you say "not pointed out to you" I suspect that you mean "I did not read the dealer's standard terms and conditions". A choice of law or forum clause is not a clause that has to be red circled to the consumer, so if you made the agreement without reading its terms you are bound. If not, you could perhaps dispute choice of law and forum, but why bother? The outcome is likely to be much the same whether north of the border or south.

I will PM you Arj Arul's details. For a bigger law firm, contact Richard Thorpe at Shakespeare's in Birmingham and ask him to put one of his juniors on the case (he is too senior and expensive for a claim this size).

Edited by anonymous-user on Thursday 15th May 12:37

Edited by anonymous-user on Thursday 15th May 13:32

[Heartworm]

Breadvan72 said:

There are EU rules that govern the selection of forum for legal disputes. These have no application between different countries within the UK.

In contract, the governing law and (sometimes) the choice of forum is determined by choice or inferred from circumstances when the contract is made and not after it. When you say "not pointed out to you" I suspect that you mean "I did not read the dealer's standard terms and conditions". A choice of law or forum clause is not a clause that has to be red circled to the consumer, so if you made the agreement without reading its terms you are bound. If not, you could perhaps dispute choice of law and forum, but why bother? The outcome is likely to be much the same whether north of the border or south.

I will PM you Arj Arul's details. For a bigger law firm, contact Richard Thorpe at Shakespeare's in Birmingham and ask him to put one of his juniors on the case (he is too senior and expensive for a claim this size).

Thanks Breadvan.

I did not read the terms and conditions, they were not provided until after I purchased the car. I am not really proposing to filing papers in Scotland, just a frustration but don't want an extra argument to get in the way of things.

Can I ask your opinion on the case? I feel confident, as does my (Scottish) solicitor.

[anonymous-user]

You might have an argument about governing law and jurisdiction, but guien that the car was purchased in Wales from a trader in Wales, I doubt that is worth your while. I don't mind having a quick shuftie, but frankly you already have a lawyer. I'm really here for people without lawyers, if you see what I mean.

[Wozy68]

Heartworm said:

Faults so far are:

Steering Alignment was out and required attention
Electric Window not working
heated seat not working
Speedometer not working
Rattle/tapping nouse from engine with damage to cylinder head, injectors were not loose.
Intermittant fault on side light
Ignition lock sticking required replaced
Intermittent wiper not working correctly
New clutch assembly required
Engine over heating (After previous work) and leaking
Engine had oil leak - separate to the other engine issues.

Currently still has issues with the starter motor, that have been there since the car was delievered.

Bud, its a Landy, mine has had most of those faults and still has some extras including the tapping noise from the engine, and I've had it from new. Yours hasn't got gearbox listed, I've had two, the first one replaced at 5K miles, oh and its had a new clutch.
Have you had the body disassembled, a lorry jack to sort the bodyshell out and then re-assembled yet? I have, because the rear door was rubbing the bodywork ..... the Defender was less than 10 months old at the time.

They are not like anything else out there. LR Defenders go wrong alot, but rarely actually breakdown. Have you ever seen one being built, you'd understand why then. They are not your usual euro/Jap kinda of motors with 100% reliability.

That's why you need LR assist at £75 a month, it will be always going back.
Sell one when it gets to six years old and/or 100K miles. Mines at 93K and will be gone later this year.

I'm assuming they are quite rightly giving you a free drive around whilst the LR is in for warranty work?

Edited by Wozy68 on Wednesday 14th May 17:12

[Heartworm]

Wozy68 said:

Bud, its a Landy, mine has had most of those faults and still has some extras including the tapping noise from the engine, and I've had it from new. Yours hasn't got gearbox listed, I've had two, the first one replaced at 5K miles, oh and its had a new clutch.
Have you had the body disassembled, a lorry jack to sort the bodyshell out and then re-assembled yet? I have, because the rear door was rubbing the bodywork ..... the Defender was less than 10 months old at the time.

They are not like anything else out there. LR Defenders go wrong alot, but rarely actually breakdown. Have you ever seen one being built, you'd understand why then. They are not your usual euro/Jap kinda of motors with 100% reliability.

That's why you need LR assist at £75 a month, it will be always going back.
Sell one when it gets to six years old and/or 100K miles. Mines at 93K and will be gone later this year.

I'm assuming they are quite rightly giving you a free drive around whilst the LR is in for warranty work?

Edited by Wozy68 on Wednesday 14th May 17:12

they claim to have given me a hire car while repairing, but I was landed with a 900 Bill for it, at which point I returned it.

[ORD]

Breadvan72 said:

You might have an argument about governing law and jurisdiction, but guien that the car was purchased in Wales from a trader in Wales, I doubt that is worth your while. I don't mind having a quick shuftie, but frankly you already have a lawyer. I'm really here for people without lawyers, if you see what I mean.

Really? From what I can see, the OP entered into an agreement with a jurisdiction clause and, on the face of it, there would be an extremely strong argument for an implied choice of English law (and the place of the agreement and the place of characteristic performance were both E&W). I havent looked at B & R, but it looks pretty hopeless!

[Zeeky]

The point is that he appears to have been given the written Ts&Cs after the contract had been formed because he had already bought the car. Even if the written agreement doesn't apply, it can reasonably, but not necessarily, be inferred from the circumstances that E&W law applies.

[ORD]

Zeeky said:

The point is that he appears to have been given the written Ts&Cs after the contract had been formed because he had already bought the car. Even if the written agreement doesn't apply, it can reasonably, but not necessarily, be inferred from the circumstances that E&W law applies.

My bad. I must learn to read at some point.

Apologies to BV.

It was the old "here are the terms of our contract from a while back, by the way" chestnut. As you say, probably not massively important, but it does mean the express choice of law analysis is wrong.

[anonymous-user]

ORD said:

Breadvan72 said:

You might have an argument about governing law and jurisdiction, but guien that the car was purchased in Wales from a trader in Wales, I doubt that is worth your while. I don't mind having a quick shuftie, but frankly you already have a lawyer. I'm really here for people without lawyers, if you see what I mean.

Really? From what I can see, the OP entered into an agreement with a jurisdiction clause and, on the face of it, there would be an extremely strong argument for an implied choice of English law (and the place of the agreement and the place of characteristic performance were both E&W). I havent looked at B & R, but it looks pretty hopeless!

I said "an argument", not "a good argument". It would be a bad argument, most likely, and anyway not worth making as taking time to litigate about forum or choice of law would be disproportionate to the claim. The OP says (I am not sure that I believe him, but whatever) that he only saw the standard terms after he made the deal Call me cynical but maybe the terms were in the bumf and the OP didn't look at them, as few of us do). Probably irrelevant, as it sounds like an English/Welsh contract to me.

I agree with Zeeky.

[ORD]

Breadvan72 said:

ORD said:

Breadvan72 said:

You might have an argument about governing law and jurisdiction, but guien that the car was purchased in Wales from a trader in Wales, I doubt that is worth your while. I don't mind having a quick shuftie, but frankly you already have a lawyer. I'm really here for people without lawyers, if you see what I mean.

Really? From what I can see, the OP entered into an agreement with a jurisdiction clause and, on the face of it, there would be an extremely strong argument for an implied choice of English law (and the place of the agreement and the place of characteristic performance were both E&W). I havent looked at B & R, but it looks pretty hopeless!

I said "an argument", not "a good argument". It would be a bad argument, most likely, and anyway not worth making as taking time to litigate about forum or choice of law would be disproportionate to the claim. The OP says (I am not sure that I believe him, but whatever) that he only saw the standard terms after he made the deal Call me cynical but maybe the terms were in the bumf and the OP didn't look at them, as few of us do). Probably irrelevant, as it sounds like an English/Welsh contract to me.

I agree with Zeeky.

If people actually read t&c, they would be a lot saner (and, presumably, after a while, drafted in proper English).

[Heartworm]

Breadvan72 said:

I said "an argument", not "a good argument". It would be a bad argument, most likely, and anyway not worth making as taking time to litigate about forum or choice of law would be disproportionate to the claim. The OP says (I am not sure that I believe him, but whatever) that he only saw the standard terms after he made the deal Call me cynical but maybe the terms were in the bumf and the OP didn't look at them, as few of us do). Probably irrelevant, as it sounds like an English/Welsh contract to me.

I agree with Zeeky.

I purchased the car and paid in full in dealer branch in Hamilton, Scotland. The car was delivered to my home address, with the terms and conditions inside the car. I saw no paperwork for anything before this. The V5 and documentation was in the car to be signed, and was then taken away by delivery driver.

Where I go to court is largely irrelevant, I will be going to court in England as it's much less hassle, and this thread was looking for advice regarding that, thank you breadvan.

[EW109]

The position on jurisdiciton seems to me to be reasonably clear: a contractual attempt to provide for exclusive English jurisdiction is ineffective against a Scottish consumer, who is entitled to sue where he is domiciled (i.e., Scotland).

The relevant provisions are the modified version of the Brussels Convention set out in Sch 4 to the Civil Jurisdiction and Judgments Act 1982, paras 7-9.

[edited to correct typo]