Legal advice required please...
Discussion
Hi guys,
You may have read in my gear ratio post previously that my Mazda RX8 (partly) failed the SVA due to the gear ratios being different to those on the model report (supplied by modelreports.com)
The model report I bought from Modelreports.com was advertised as “Mazda RX-8 (2001-2005) Auto Petrol LA-SE3P” This is the correct model type and since mine is a 2004, the advertisement suggests it’s covered. I’ve since managed to locate another company which does model reports for RX-8s Autos. Their one covers 2004 models onwards and my gearing ratio are fine according to an initial chat with them and the figure they have on their model report (within the 8% allowance).
I assume there has been a revision to gearing ratio for emissions compliance between 2003 and 2004 (my car revs less at the same speed compared to the model report). Either modelreports.com don’t know this or they’re playing dumb as I confronted them with this one the day the car failed – their office is very close to the test centre. Either way, would you agree its sufficient grounds to demand my money back (at very least)? As I’ve been sold a model report which effectively isn’t for my car.
I’ve spoken to VOSA who conduct the SVA test and they’ve said I may well have pay the full amount for a retest if different test criteria is presented (£200) as oppose to the normal retest fee (£32). Should I also be pursuing this if I’m charged and additional £200?
I’ve had a look at the terms on their website and these are the points I’ve picked up which may (or may not) be of interest… I just want to make sure I’m interpreting them right before I go back to modelreports.com to give them my findings, they’re no doubt dispute.
You may have read in my gear ratio post previously that my Mazda RX8 (partly) failed the SVA due to the gear ratios being different to those on the model report (supplied by modelreports.com)
The model report I bought from Modelreports.com was advertised as “Mazda RX-8 (2001-2005) Auto Petrol LA-SE3P” This is the correct model type and since mine is a 2004, the advertisement suggests it’s covered. I’ve since managed to locate another company which does model reports for RX-8s Autos. Their one covers 2004 models onwards and my gearing ratio are fine according to an initial chat with them and the figure they have on their model report (within the 8% allowance).
I assume there has been a revision to gearing ratio for emissions compliance between 2003 and 2004 (my car revs less at the same speed compared to the model report). Either modelreports.com don’t know this or they’re playing dumb as I confronted them with this one the day the car failed – their office is very close to the test centre. Either way, would you agree its sufficient grounds to demand my money back (at very least)? As I’ve been sold a model report which effectively isn’t for my car.
I’ve spoken to VOSA who conduct the SVA test and they’ve said I may well have pay the full amount for a retest if different test criteria is presented (£200) as oppose to the normal retest fee (£32). Should I also be pursuing this if I’m charged and additional £200?
I’ve had a look at the terms on their website and these are the points I’ve picked up which may (or may not) be of interest… I just want to make sure I’m interpreting them right before I go back to modelreports.com to give them my findings, they’re no doubt dispute.
Modelreports.com said:
Please note: - Our website contains information of a general nature. Whilst we take care to make that information interesting, informative and accurate, we cannot guarantee the accuracy of that information or take responsibility for any decision which you make or refrain from making as a result of visiting our website. You must accept that you are responsible for making your own decisions.
Warranty - We take reasonable care in compiling our Model Reports. However, we have no control over the use of the Model Report by you or by the person conducting the ESVA test on your vehicle; we therefore do not warrant that your vehicle will pass the ESVA, or any other test as a result of your Model Reports use authorisation.
Our Liability to You - If the Model Report service is suspended or terminated for any reason, you will not be entitled to a refund of any payment which you have already made to us, and we will not be liable to you for any loss or damage suffered by you as a result.
[The above clause is not likely to be legally enforceable in any circumstances. I set out some alternatives below.]
[If the Model Reports service is suspended or terminated for any reason, our liability to you is limited to the amount of any payment which you have already paid to us.]
[In the event that we issue or recommend an incorrect model report and do not within seven working days of being notified of the error provide the correct model report to the test station at which your vehicle is to be tested, we will refund to you the sums which you have paid to us in respect of that order.]
[In the case of a person who is not dealing as a consumer, if the Model Reports service is suspended or terminated for any reason, our liability to you is limited to the amount of any payment which you have already paid to us.]
[If the Model Reports service is suspended or terminated for any reason, our liability to you is limited to the amount of [figure to reflect refund plus cost of re-test.]
Warranty - We take reasonable care in compiling our Model Reports. However, we have no control over the use of the Model Report by you or by the person conducting the ESVA test on your vehicle; we therefore do not warrant that your vehicle will pass the ESVA, or any other test as a result of your Model Reports use authorisation.
Our Liability to You - If the Model Report service is suspended or terminated for any reason, you will not be entitled to a refund of any payment which you have already made to us, and we will not be liable to you for any loss or damage suffered by you as a result.
[The above clause is not likely to be legally enforceable in any circumstances. I set out some alternatives below.]
[If the Model Reports service is suspended or terminated for any reason, our liability to you is limited to the amount of any payment which you have already paid to us.]
[In the event that we issue or recommend an incorrect model report and do not within seven working days of being notified of the error provide the correct model report to the test station at which your vehicle is to be tested, we will refund to you the sums which you have paid to us in respect of that order.]
[In the case of a person who is not dealing as a consumer, if the Model Reports service is suspended or terminated for any reason, our liability to you is limited to the amount of any payment which you have already paid to us.]
[If the Model Reports service is suspended or terminated for any reason, our liability to you is limited to the amount of [figure to reflect refund plus cost of re-test.]
Jasandjules said:
Their T&Cs sound like utter s***e.
The question is what do you want from them?
If they have been negligent then you can sue for consequential and reasonably forseeable losses.
If you sue for Breach of Contract then you could get the cost of the report back.
Agreed.The question is what do you want from them?
If they have been negligent then you can sue for consequential and reasonably forseeable losses.
If you sue for Breach of Contract then you could get the cost of the report back.
It is difficult to know what to recommend without knowledge of what you want from the company.
Their T&Cs do sound one sided, and without looking at their site and what they advertise I am guessing the purpose of the report if for the testing you have done.
I would therefore say that it would seem that they are selling something for a purpose and then in the small print saying that if the data is wrong and fails that purpose then tough. That is wrong and you may have inroads via the Sale of Goods Act or even showing that a clause that one sided against the consumer is unenforcable.
However, it would depend on the exact way the reports were marketed and represented as to whether you have a case. In any case it will be a lot of time and hassle following it up as it is my guess they will call your bluff and defend themselves.
From my point of view, the model report is useless to me. All I’d really like is to have my money back for this. AND if I’m charge the full price for a retest then to be reimbursed for this too. I’m not looking to chase compensation of any sort.
I feel I’ve been miss sold this product. If this was a physical item, it would need to be fit for the purpose it’s been sold for. For example; take a universal TV remote. If the packaging says will work with A to Z and when you get home you realise it doesn’t actually work with X then you’d be entitled to your money back.
Similarly, the model report says it’s for cars of year 2001 to 2005. Now mine is a 2004 so that suggests it’s covered... However when I’ve had the test it seems it’s not covered. As the revision in 2004 isn’t picked up by this model report. How do I know there was a revision in 2004, because I have found another company that sells the same product but specifies it is for 2004 onwards cars.
I have two things to consider before going to the company to ask for a refund. One, will they admit it’s a mistake on their part; Two is there anything in the small print which means they’re not liable for their mistakes?
This clause seems to work in my favour providing they admit their mistake, right?
[In the event that we issue or recommend an incorrect model report and do not within seven working days of being notified of the error provide the correct model report to the test station at which your vehicle is to be tested, we will refund to you the sums which you have paid to us in respect of that order.]
Now they would, I assume in this case, buy and supply the correct model report to the test station and just not refund me anything. Which suits me fine. After all I want is to have my car on the road...
But on what ground can they refuse?
I feel I’ve been miss sold this product. If this was a physical item, it would need to be fit for the purpose it’s been sold for. For example; take a universal TV remote. If the packaging says will work with A to Z and when you get home you realise it doesn’t actually work with X then you’d be entitled to your money back.
Similarly, the model report says it’s for cars of year 2001 to 2005. Now mine is a 2004 so that suggests it’s covered... However when I’ve had the test it seems it’s not covered. As the revision in 2004 isn’t picked up by this model report. How do I know there was a revision in 2004, because I have found another company that sells the same product but specifies it is for 2004 onwards cars.
I have two things to consider before going to the company to ask for a refund. One, will they admit it’s a mistake on their part; Two is there anything in the small print which means they’re not liable for their mistakes?
This clause seems to work in my favour providing they admit their mistake, right?
[In the event that we issue or recommend an incorrect model report and do not within seven working days of being notified of the error provide the correct model report to the test station at which your vehicle is to be tested, we will refund to you the sums which you have paid to us in respect of that order.]
Now they would, I assume in this case, buy and supply the correct model report to the test station and just not refund me anything. Which suits me fine. After all I want is to have my car on the road...
But on what ground can they refuse?
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