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FOLLOW ON FROM THE LAST POST,THE I PAD THREW A WOBBLY!
Finally the legislation that could be used against you in the small claims court is
The 1967 misrepresentation act
.It says that their are three types of misrepresentation that could be used to persuade someone to enter into a contract
They are deliberate ,negligent, and wholly innocent,
If you were guilty of the first two you would be liable to compensate the other
party,from what you say ,you come under the third part .you won't have to compensate your buyer.
You can also claim that you're buyer was negligent in not carrying out HPI and , or VOSA checks before he bought the car.
As a private seller you're not responsible for his negligence.
If you're not sure about any of the explanations ,please contact the forum again.
Good luck
Tony g
Please let the forum know the outcome
Good luck
Please let the forum know how you get on.
Edited by tony g on 13/01/2012 at 14:18
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Thanks everyone, your advice is much appreciated.
A few more details, the car is a 2005 bmw 320d, we bought it november 2010, with 60k miles on it. Sold it last week with nearly 67k.
Looking back, the car only shows one previous owner to us. This means that the person we bought it off was registered as a trader. We were unaware of this at the time, as I did not know that traders do not appear as owners on the registration. We only have the address for the person who sold us the car (if they actually live there). No name, and we did not have a sales reciept, as we thought it was a private sale, which did not require one.
Bought it for 7.5k, sold it for 5.5k, (with a small area of damage on the front passenger side bumper).
The VOSA website shows that the mileage clearly increases rapidly, then drops in early 2010 when the MOT was put through. We now reckon like you have said that ther service documents are fake. I feel very angry that this has happened, and dissapointed that I was so naive, We know we are innocent, and hopefully this shines through. I do feel bad for the new owner who has uncovered this, but we cannot afford to buy the car back, especially as we have paid off debts and bought a cheaper car for my girlfriend.
From what I have read, which may not make sense, it is a case of buyer beware, or caveat emptor, where a private seller should take reasonable caution when buying a car to make sure it does not have a hidden past.
We had it HPI checked and it is clear. However the company who did this check did not offer a mileage checking service that some of you have described. Until yesterday I did not know that mileages were logged electronically through MOT's.
We are so upset about it, and its really making us depressed. I hope that the court will see that we are innocent in this fiasco, and that we cannot be blamned for selling a car that we didnt know was mileage altered.
I depair!
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If the mot is showing you to have bought the car AFTER it was "clocked" you have little to worry about.
Don't despair, and as I said, call a solicitor for legal aid, and ask for an appointment with trading standards, I am sure they will help as your case appears to be genuine, keep in touch and let us know. ask hj himself for advice, let him have your contact details too, he has an address, i think letters@honestjohn.co.uk
Edited by OldRoverboy on 13/01/2012 at 17:20
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If I am reading you correctly the mileage toook a big drop BEFORE you bought the car. On that basis the mileage discrepancy is not your responsibility. How can ANY sale of ANY sort not be worth getting a receipt for? £7.5 K to a man with no name and a possibly dodgy address?
You are clearly not risk averse! I really hope you come out of this in the clear
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Thank you again everyone. Everyone is making very valid points, I really hope we come out of this unscathed. Armitage, I know it sounds silly not getting a reciept, but this was our first real attempt at buying a nice car, we were 21 and 22 at the time. Using money to get something that we were told would be economical, reliable, and slowly depreciating. Which it was luckily. I was always told to check the HPI status, that was what everyone kept going on about. And we do both feel very silly now this has happened to us. I think dealerships are the way forward for the non car literate.
Trading standards have said what you guys say, buyer beware, not our fault. However, we are so worried that this could really harm us as young people financially. Its really keeping us up at night. Thanks again everyone.
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Hi,blue
It's clear that like you ,your buyer should have done the HPI and VOSA check before he bought your car. He didn't ,and unless he can prove that you deliberately or negligently misled him he's not entitled to his money back.
Did you give him a receipt or an invoice,that shows the mileage on your car,if you did, you could have a problem.You would then have be able to prove .That to the best of your knowledge and belief the mileage was correct.
Your buyer may also have a copy of the advert, from when you offered the car for sale that shows the cars mileage.That would help him in his claim.
Generally speaking though, where a private buyer and seller are involved in a transaction. it's a case of let the buyer beware. He must be able to prove that you deliberately misled him, to have a case for compensation .
Finally don't be tempted to refund part of his money to resolve the issue. You have a very good case and he's proven himself to be negligent.
If you do end up in the small claims court ,do get back to the forum ,several
members have been through the same process ,including myself,and can help
you through the process.
Good luck
Tony g
( I think dealerships are the way forward for the non car literate.)
Blue ,ref the above,thats far to much of a presumption, please do the VOSA and HPI mileage checks,plus try to contact the previous keeper,before you buy a car from anywhere
Edited by tony g on 13/01/2012 at 18:58
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Thanks again everyone. We have recieved a text message from the new owners this morning. Stating that unless we can come to some sort of 'out of court' settlement, then they will take the case to court. We have replied saying that we cannot afford to refund them due to not having enough money, and that we will have no choice but to go to court.
They have replied saying "Ok, please be aware this process will not stop once started and will be crown court not small claims court. You will be liable for all of our expenses plus the cost of the car. Please consider carefully." They have also told us that they are hiring a car, and will not be using the BMW, at our expense.
This is all making us very worried, and causing much stress.
More information: the new owner has bought the car for their business, and as such they are covered legally through insurance? We are both looking for jobs after completing university, and therefore in a much less favourable position. We are worried that they will get a great solicitor, and even though we are wholly innocent, we will be sued.
In conclusion, we believe we are innocent because:
We were a private seller, with little 'car' knowledge, they are a private buyer.
The apparent clocking happened prior to our ownership.
We did not guarantee the mileage, meerly stated it on the listing.
We were unaware that the stamped service book was fake.
We had no problems with the car that would lead us to believe the mileage was so high.
The sales reciept which we gave them did not state the mileage.
Why didn't they, as a much more 'car' experienced couple, carry out these checks prior to purchase?
Advice please!
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Go to a solicitor - get some free advice to start and even pay for an hour if you have to.
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...it will be crown court not small claims court...
Really?
The crown court handles criminal cases where the defendant has been arrested and prosecuted by the police and Crown Prosecution Service.
Civil disputes over money - which this is - go to the county court, sometimes called the small claims court.
Your buyer is clearly a chancer who can't even get his threats straight.
Ignore, and wait for the county court summons, but I doubt one will arrive.
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I didn't think a case like this could go straight to crown court without referral. You seem to think the same. I am going to try to book an appointment with a local trading standards office to get more advice. I think getting a one off consultation with a solicitor would also be beneficial, thank you for the suggestions. Would we be able to claim for these costs back if they were proven to have been negligent?
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It cannot go to the crown court at all.
The crown court is part of the criminal track of justice, this dispute is in the civil one.
I wouldn't bother with a solicitor at this stage, he won't be able to tell you any more - and probably less - than tony g has already told you on here.
The most important thing is no further contact with the buyer.
You don't want to give them the impression you are willing to engage in any negotiation.
Let them make all the running, and incur all the expense.
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(Thanks again everyone. We have recieved a text message from the new owners this morning. Stating that unless we can come to some sort of 'out of court' settlement, then they will take the case to court. )
It's hard to take anybody seriously that communicates about something apparently as serious as this by text.
As I posted earlier, they are trying it on.They hope you will make an offer to refund part of their money.don't do it.It could be construed as an admission of fault on your part.
If you have their address write to them if not text them,telling them that you sold the car in good faith,no more than that,admit nothing.
Also tell them that if they contact you again you will consider it to be harassment on their part ,and you will instruct a solicitor,to prevent them contacting you again.
My guess is ,that they realise that they have been negligent in not checking the car properly before they bought it.
They are trying to BS you into paying for their mistake.
Good luck and don't worry,they are unlikely to take it to court.If they did they are likely to loose.
Tony g
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We have sent them a message saying that any further communication will be seen as harassment. To which they have replied. "Thank you, see you in court"
I suppose we should wait to hear from their solicitors, and see how we can best progress.
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I have read about cases before when people have been selling cars that they have owned from new where the buyer has carried out the sensible checks and the report has come back querying the mileage. In the case of a car you have owned from new you are the only person that could have either tampered with or had the milage tampered. In all these cases it has been a DVLA error. Of the two I remember the milage had gone from say 50,000 on one MOT to 80,000 on the next and 70,000 on the next. Owner had old MOT's that proved DVLA info incorrect and it was a simple inputting error. On the other an extra 1 had been input in front of the mileage for one of the MOT's meaning an obvious but potentially sale loosing error. These vehicle checks can only report the data that has been input and most of the people who input the info are bored to death and don't check what they are doing, mistakes do happen.
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Initially we thought the same. The condition and reliability of the car were inline with the mileage on the dash. However, now we have looked at the VOSA site, the mileage goes up in a linear fashion, then sharply down before we bought it. Indicating that it probably has been clocked.
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Hi blue.
How long before you bought/registered the car in your name , was the mileage shown to have been altered on the VOSA check.
As this is key to your problem , can you supply the forum the mileages and dates of the last two mots before the mileage was altered plus the mileage and date when the MOT was done with the reduced mileage .can you also supply the date you registered the car in your name,and if possible the date you actually bought the car.
All the above information is a matter of public record and will be the information you need no rebut their claim. If you can prove that you didn't clock the car,and that you wernt aware that it had been clocked, your in the clear.
They did a VOSA check after they bought the car ,so they were aware of the VOSA system.
They were negligent ,they suffer the consequences.
Don't worry about it.
Regards
Tony g
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Hi Tony, firstly thank you for your support, it is very generous of you.
To answer your questions,
here is the MOT history: (Via VOSA website)
07/2008 (first MOT) 100,413 miles
06/2009 135,778 miles
28/06/2010 157,242 miles
Four months later another MOT done 02/10/2010 at 61,446 miles. Therefore the clocking occurred between these two dates. We acquired the car on the 22/11/2010.
in Septemer 2011 we had the car MOT'd at a local garage at 64,939 miles.
Key handed over to new owners on the 6th of January 2012, after waiting four days for the cheque (that they handed over on the 2nd) to clear. (Their first inspection of the car)
With mileage just below 67,000 on dash.
Their first complaint via text message learning of this problem was the 12th of Jan, 6 days after collecting the car.
Quite clearly the clocking was done before our ownership. I cannot see how we are liable when we did not know about the clocking. What are your thoughts?
Edited by bluebeasty on 14/01/2012 at 19:51
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Hi blue.
First the obvious ,it's clear that the car has been clocked,the three previous MOT reports confirm a consistently increasing mileage .So it's not a mileage entry mistake at the dvla.
The good news is that their is a two month difference between the car being clocked and mot,d and you being registered as the keeper .So you look in the clear .
A small thing,was the MOT done at a garage some distance from where you live .if it was ,it adds weight to the argument that you were not responsible for the clocking.Also the clocked MOT was done just 4 months after the Previous correct mileage MOT. Nobody re mots a car that has 8 months MOT to run.Finally you kept the car for a year ,and had it motd before you sold it on ,that's not what a clocker would do.
While the above three points add weight to your argument ,they're not conclusive ,they just help.
I don't see how your buyer can hope to reclaim his money,try not to worry about it and do contact the forum if you hear from your buyer again.
Regards
Tony g
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So the facts are clear. The car was clocked between 28/06/10 and 02/10/10 and you bought the car on 21/11/10 which clearly proves you were not responsible for clocking the car.
But that does not prove you had not found out the car had been clocked and had decided to sell it for that reason.
If they take you to court it may well depend what they accuse you of, if its clocking the car you are obviously in the clear, if its selling a car that had clearly been clocked it could be a little trickier since as I said above you cannot prove you were unaware of that fact.
One thing that is obvious and don't take this the wrong way, both you and the person that you sold the car to have been equally naive by not carrying out full checks before buying.
The bottom line is you are not a clocker which is a serious offence and when my cousin (who was a trader) was caught cost him 3 years in jail and a £100,000 fine, his parents lost their home of 50+ years since they had put it in his name.
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Hi blue
(But that does not prove you had not found out the car had been clocked and had decided to sell it for that reason.)
Thunderbird raises an interesting point with the above paragraph.
Of course the reverse is equally true.In that your buyer would have to be able to prove that you did know or should have known that the car was clocked.
You were a private buyer ,as was your buyer,you didnt know how to use the the HPI system correctly or that the VOSA system existed.
At the time he bought the car your buyer didn't know how to check a car properly either.
Realistically he cannot complain that you were negligent or fraudulent ,when he had the opportunity to do the same checks himself ,before he bought the car,but failed to do them.
The courts have declared on several occasions that it's not reasonable ,to expect a non trade buyer ,to have sufficient knowledge ,to be able to carry out checks such as HPI and VOSA.
This applies to you initially but also to your buyer, however as you were first in the chain you should be ok.
In addition you bought the car with a full service history ,it's reasonable then for you as a non trade buyer, to believe that the cars mileage was genuine.
It would be worth your while to do a full HPI check on the car again ,entering the mileage when you sold the car.the mileage is the priority.
HPI mileages are dependant on third parties entering the mileages at the dvla ,for example when they sell the car .they're not legally obliged to do so.
Their is no link between HPI and VOSA .
it follows then that HPI may not carry a mileage marker, to indicate a clocked car.
If it doesn't you may be able to use that information to counter your buyers claim of negligence or fraud .I know you said earlier that you did an HPI check on the car ,but didn't do the mileage check ,if the mileage check doesn't show the car being clocked ,you're in the clear.
Regards
Tony g
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Hi again. You are quite right thunderbird and tonyg, the only way that they would be able to have a successful case against us, is if they could prove that we knew about the mileage change.
The HPI check we had done was called mycarcheck.com or something similar. This service did not offer a mileage checking service. In fact I am finding it difficult to find a company that does. The HPI check comes back completely clear. However, if the case progresses we will find a company that does a mileage check and see if this flags up anything.
Another question, when we sold the car, we gave them a sales reciept, which they requested. They bought the car in their company's name. A friend tells me that the law sees cases differently when a business is involved in a transaction with a private seller. I don't know if this is the case?
It is really bugging me that they did this check afterwards, and in some ways makes me supsicious of their intentions. My dad says if they were worried about something like this happening they could have got an inspection from the AA or another motoring organisation, do you know if this is correct?
Many Thanks.
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Hi,blue
I think that you're friends referring to a part of the sale of goods act ,it says that when a dealer ,I'm not sure about a private seller,sells a vehicle to a business or a trader ,consumer protection is invalidated.
The first time I came across it I thought the clause referred to a sale between car traders ,it doesn't .it means that when a business buys a vehicle , consumer protection is not applicable to the transaction.
I guess it's because a business is not considered to be as vulnerable as a consumer .So it's quite possible that because they bought as a business, they've done themselves damage.
You're dads right when he says that they had the option to have the car inspected by the aa or any one else for that matter ,before they bought the car.
The aa would have included a mileage check as part of the inspection.
Again it should have been done before they bought the car.
It seems more likely than ever that they have no hope of redress.
Finally I have an account with HPI/Experian ,the cost of a full check to me is £5.50 ,that includes the mileage .If you decide you need a full check with a printout let me know the reg number and I will post it on to you.We can sort something out about the cost if necessary.
Regards
Tony g
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Thank you Tonyg, your help is very much appreciated. We are investigating the legal issue arising between a private individual selling to a business.
All the evidence seems to suggest that we are in the clear, and that we have little to worry about. Regardless of this, we are still obviously worried about the situation. Honest John himself has replied to an email I have sent him, stating that we have nothing to worry about.
Thank you for your offer of the full car check, we may well take you up on this if we hear from their solicitor. I am going to speak to the Citizens Advice Bureau today and see if their advice is the same as what Trading Standards have said.
You said- Tonyg, that you have been in a similar situation (but as a trader), what was the outcome if you do not mind me asking?
Many Thanks
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Hi blue,
The circumstances of my problem are very similar to yours,Im a car dealer.
I bought a car from e bay as I often do,I did all the possible checks including contacting the manufacturer to see what recalls the car had,and at what mileages.
Nothing contradicted the mileage that the car was advertised with and was shown on the mileometer.
I sold the car on,the person I sold the car to,later part exchanged the car with a main dealer.
The main dealer put the car through a local auction.The auctions said that they had auctioned the car about 12 months previously ,with a 100,000 more miles on the speedo.
The main dealer is now demanding £2000 ,in compensation from the people who bought the car from me. At this moment I am helping the person who bought my car to reject the claim.
As yet we've not managed to resolve the issue .
Regards
Tony g
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Hi blue, good to see you got hj's opinion, Given that you have willingly supplied this forum with all the information we have asked, I believe you, (doesn't count for county court though) From now on ignore the other people totaaly, and if thy serv you with a summons to counry or small claims court, say you will contest the claim, and see a solicitor. DO NOT make any offer of compromise at all. keep silent and wait.Let us know the outcome.GOOD LUCK
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Hi everyone, Just to inform you that we have recieved a letter from their solicitor today. It is a pre court statement. The solicitor states that we need to refund the value of the car back to the claimant within 14 days or we they will take the matter to court. We will not be doing this obviously. It states that we have misrepresented the car on the ebay listing where they saw the vehicle, as the mileage is not as described. They have enclosed a copy of the listing, and a copy of the VOSA mileage check. We are going to send a letter back tomorrow saying we have ackowledged their letter, and will not be refunding the claimant. Do you think we should state when we acquired the vehicle, so that they are clear that the mileage was altered before our ownership? Or remain silent, and go to court. The solicitor has said that we should think carefully about our decision as it may affect our ability to get a mortgage, if we are proven to have misrepresented the car. In summary, we are wholly innocent, so feel that we should progress with this legally as the courts should see that we have not done anything wrong.
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Hi blue,
I think now would be a good time to see a solicitor,most will give 30 minutes free ,it's probably worth spending a small additional amount to have them write to your buyers solicitor. And to give you professional advice on the 1967 misrepresentation act.
If the solicitor confirms earlier posts that you've done nothing wrong ,ask him about disclosing all of your case in a letter to their solicitor .would you be better off disclosing your case just when you get to court. In addition ask him whether because they bought as a business ,do you have less of a liability to them. I think the sale to a business only excludes an action under consumer protection law ,that still leaves misrepresentation.
The business about a mortgage is a bluff.My understanding is that if you loose a case and pay the money into court within 14 days ,a court judgment will not be entered on the records that can be used by credit reference agencies like Experian.
If you want the HPI check doing that we discussed earlier ,let me have the reg number ,it could be that HPI will help your case ,or confirm the clocking ,theirs no way of knowing until the records checked.
Regards
Tony g
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Personally I find the bit in the solicitors letter about not being able to get a mortgage quite threatening, although probably not illegal to say it why should it be raised when the case is about a car. Having dept problems and court judgments against you would prevent you form getting a mortgage, even if you were found "guilty" how could that affect your credit rating providing you paid any fines etc.. Your legal advisor will be able to give advice on this, it could even help your case if their legal rep has overstepped the mark.
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Thanks again everyone. This is literally consuming our lives at the moment, we are so stressed about it. On top of this, both myself and my girlfriend are out of work at the moment, which is adding to the worry. I understand we may be able to get legal assistance if we are deemed to be in need.
tony g, thanks again. You are really helping us make sense of what is happening, and it feels nice to know some-one is trying to help another, without you even knowing us! We really appreciate it.
We are trying to contact citizen's advice today, but they have said they will ring back, hopefully this will put our minds at rest a little.
Thunderbird, I know, it does sound quite threatening hearing that we may not be able to get a mortgage, I do not know where we stand with this. It is upsetting my girlfriend quite a lot. It isn't exactly ideal to be taken to court at our age!
We cannot really do anything other than seek advice at this stage, however, we will be seeking legal advice if we are summoned obviously.
Once again, thank you everyone who has spent the time attempting to help us out!
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>>tony g, thanks again. You are really helping us make sense of what is happening, and it feels nice to know some-one is trying to help another
I think you'll find the moral weight of everyone on this forum's behind you. Don't buckle under!
However, if you're telling porkies.........................;>)
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You could try justanswer.com an online solicitors advice site it seems to be initially free, so you can always stop if they ask for money.
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You could try justanswer.com an online solicitors advice site it seems to be initially free, so you can always stop if they ask for money.
But would you be speaking to a real solicitor or just a numpty pretending to be a solicitor. If its th latter how would you know plus if its the former how could you be certain they were not specialists in a different area. Best go to a local place IMHO, at least you can speak to the same peron each time.
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Hi,
I've looked at these online solicitor sites .they're a waste of time.They sucker you in by asking you to write a brief description of your problem ,
Once you've spent twenty minutes doing that they ask for £45 ,for a reply from a solicitor ,
If you want a confirmation or want more details ,that's another £45 ,don't get involved their a waste of time.
Tony g
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Hi everyone,
I have been advised to steer well clear of these supposedly free solicitor advice sites, a friend was given some awful advice from one company, which was found to be entirely wrong.
We are staying strong, and will wait to hear whether we are summoned to court. We have sent a letter back to their solicitor stating when we acquired the vehicle, that we sold it is good faith, and that we were unaware of the mileage discrepancy. This is all we can do at this stage, so we will wait to see if the case progresses.
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My advice, though I am not a solicitor or qualified in any way to give any legal advice would be to
Have no futher contact with the buyer, see a solicitor, ask about legal aid, as your both unemployed you have no money to defend this claim or even pay should the worst come to the worst
If you have a switched on solictor they wil point out to your buyer their chances are of winning and or recovering any monies from yourselves, ie you dont sue people who have
no money or assets
If in the worst case this goes to court and you lose you can ask the court to pay over time what you can afford to pay ie £1 a week/month what ever
wvd
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Ref White van drivers comments,
Although it's true that if you did loose this court case,because you are both unemployed,you could end up having to pay as little as £1 a week ,
However the opposing party could apply to the court to instruct bailiffs ,they would seize anything of real value that you may own.to offset against the judgment against you .This includes money left to you by relatives ,money in bank accounts etc
If you loose and can't pay the full amount within 14 days ,you would have a county court judgment entered against you.
That would restrict your ability to obtain credit or a mortgage for up to 7 years.
Having said all that ,you do have a very good case ,but now is the time to consult a solicitor ,citizens advice etc just won't be able to give you the information you need .
Good luck
Tony g
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