Satisfactory Quality in Consumer Car CasesArticle Index
If you’ve bought a new or used car from a dealer which developed a fault, you’ve probably downloaded a short letter before claim template from the internet.
It would have stated that the car is being rejected as it not being of satisfactory quality, not fit for purpose and not as described under the Consumer Rights Act. Which in all likelihood resulted in the trader refusing your request, leaving you scratching your head at what to do next, aside from issuing a court claim.
The dealer will say that the issues faced by the buyer are to be expected in a used car or are a new car software update and the good news is that it’s all covered by the warranty.
The buyer will say they’ve lost faith in the vehicle and don’t want it repaired.
These standard responses yield the first problem in car consumer cases; the application of a subjective standard when the law refers to the objective test of what a reasonable person would consider satisfactory taking into account various factors.
The second problem is the definition of satisfactory quality. The law provides some guidance which includes freedom from minor defects, appearance and finish, safety and durability.
Defining these seemingly simple terms has long been at the centre of disputes and disagreement between traders, consumers and their respective lawyers.
While Consumer Rights Law mentions consideration to all relevant circumstances including any description, the price and any public statements by the trader; and a lower standard might be expected of cheap or disposable goods in comparison to an equivalent item that cost more or was advertised as being particularly durable, it is so vague as to be virtually useless.
What we do know is that prestige and premium brands have been promoted as being of superior quality and longevity helping justify the price difference between volume brands. However, this market positioning by the manufacturer leads to increased expectation; take for example the way the manufacturer presents and identifies itself in the market: Mercedes-Benz has the tag line “the best or nothing”, Audi, “vorsprung durch Technik” or lead by technology or Land Rover “above and beyond”.
The first mistake made by car dealers and consumers is to try and categorise faults on a scale of minor through to major: in many respects it’s irrelevant.
The Relevance of New & Used Car Warranties?
The Characteristic of The Car Defence
In 2007 the phrase “Characteristic of the car” entered the vocabulary of car manufacturers and new car dealerships as a cure-all defence against car rejection claims.
However, this creation of a general legal principle from a single fact-specific case is a recipe for disaster and misses the real point of the case which gave rise to it.
The case itself involved the purchase of a brand new Audi TT, which veered slightly off to the left when one let go of the steering wheel at 50-60 mph. Quite why someone would want to do this is a different question, but nevertheless, it could be apparently rectified with one finger. The claimant rejected the car claiming it to be of unsatisfactory quality, which the dealer disagreed with explaining veering to be due to the car being “camber sensitive” and a dispute ensued.
Following numerous road tests, diagnostic testing, telemetry and expert opinion it was broadly agreed that the wheels were out of specification, but this could have easily been due to variance in the testing equipment as the deviations were so slight.
In the end, the car was found to be safe, roadworthy, suffering no adverse tyre wear and the handling to be normal which of course resulted in the claim being defeated.
Nevertheless, the judge was quick to point out that even signs of adverse tyre wear could have been enough to tip the balance in the claimant’s favour.
So it was hardly a resounding victory and there has been no subsequent tidal surge of successful defences based on the “characteristic of the car”.
In fact, success is so rare that you’re more likely to find it categorised under myth and legend, rather than legal precedent.
Yet despite this, it is cited with surprising regularity, which is made more so in the light of Lord Justice Ward’s comments. While he had some sympathy for the purchaser and his dissatisfaction with the car, this was diminished by his amazement at the parties having spent in the region of £100,000 arguing over a claim which is worth about £6,000, describing them, as “completely cuckoo to have engaged in such expensive litigation with so little at stake.”
Unlike most areas of law, lawyers who specialise in cars are a rare breed with only a handful in the country. Out of those, most specialise in high-value collector and classic cars.
However, try to hire a lawyer who specialises in everyday cars, prestige cars, supercars and classic cars you’ll probably only find one: Philip Harmer.
Philip is unusual in coming from a motor trade background and the cut and thrust business of buying, selling, repairing and financing cars before becoming a lawyer.
Like other collector car lawyers and niche law firms, Philip’s interest in classic cars started as a schoolboy in the late 1970s and ’80s, when of course many of today’s classics were still in production. Magnum drove a Ferrari 308, Bobby Ewing, a Mercedes SL 107 series and James Bond an Aston Martin and Lotus Esprit. Although Philip’s motor industry career grew from less glamorous beginnings, buying and doing up cheap cars for a few hundred pounds and selling from his parent’s driveway.
Starting out as a sole trader especially in car sales, Is a steep learning curve in business, investing and retailing, where you learn the hard way and mistakes cost you money.
If there is a secret to Philip’s success, it is his aptitude for learning and insatiable appetite for knowledge which led him on a long and winding route through every aspect of the motor trade; a journey which would take him from insights into the tricks of the trade and the murky side of the automotive industry to dealing with some of the most desirable cars in the world.
Few would have predicted that his career path would take him into the legal profession.
The Car Lawyer
With a qualifying law degree, a master’s in International Commercial Law and Corporate Governance and having been called to the Bar, Philip was ready to embark on a legal career in corporate wrongdoing and commercial law.
However, the bottom line is to be successful in any area of law you need to have an in-depth knowledge of the industry, the products and services.
As much as he tried to distance himself from the car trade, it became clear pretty quickly that the solicitors advising his former car dealer associates knew little about the subject, a situation which was mirrored by the private clients who contacted him having received advice or hired a solicitor for a car rejection, spent thousands and got nowhere.
The rest, as they say, is history. Philip’s motor industry practice grew and continues to do so by word of mouth, advising car dealers, finance companies, consumers and collectors in the UK and internationally.
A Risky Business
Perhaps predictably, the most common problems centre around car consumer rights concerning new or used cars bought from a dealer or bought on finance, although with car sales being big business, unsurprisingly so is car crime and car fraud.
The exponential growth in classic car values has in large part been driven by the sector becoming part of alternative asset investment strategy and, just like works of art, has left it susceptible to fakes and forgery.
The techniques employed haven’t changed much over the decades, although they’re more popular and never been more rife, fostered by the huge increase in cars being sold on finance and the growth in the prestige car market.
These issues include cars with different VIN numbers, defective title, cars bought with outstanding finance or written off and not declared and of course ‘clocked’ or have CAN filter devices installed.
Thirty years on, Philip Harmer is at the top of his game and in high demand.
His straight talking and down to earth approach puts clients at ease while his ability to explain complex issues in everyday language instantly instils confidence. Aside from all else, it’s immediately apparent that he knows his stuff.
Not content to rest on his laurels, he offers a 15-minute free consultation on the phone, which he says is an opportunity for people to test drive their potential lawyer and for him to test his knowledge and expertise.
While high-value classic and prestige vehicle transactions and disputes make up the core of his business, he also offers retained legal services packages for car dealers and automotive businesses.
However, he’s quick to point out that it’s not all about Porsches, Lamborghinis and Bentleys and he is equally at home dealing with everyday cars which were his bread and butter in his car dealer days.