Dr C v BMW Financial Services

Dr C acquired a used BMW X5 eDrive MSport plug-in electric hybrid car from a specialist BMW dealership for £31,750 by way of a 49-month hire purchase agreement with BMW Financial Services (BMWFS) in November 2019.

The BMW X5 was represented as having a range of up to 31 kilometres (approx. 19 miles) in the all-electric drive mode when the high-voltage battery is fully charged.

Dr C was also told by the supplying BMW dealer that a three-pin cable would be suitable for charging the vehicle at home.

Soon after taking delivery and within 30 days Dr C complained to the dealer and BMWFS that the representations were false, in that the actual EV range was around 7 miles and the three-pin charger should only be used for occasional use as it can damage the hybrid battery.

BMWFS said, in summary, that the quoted electric range is only ‘a guide’ and this will vary, and that it could not find a fault with the Vehicle and/or the battery.

Dr C instructed Stormcatcher Law, who escalated his complaint to the Financial Ombudsman Service (FOS) on his behalf.

In September 2020, Dr C told BMWFS that the car had broken down and been recovered to a garage displaying fault messages relating to the hybrid battery.

The garage said it would need to remove the hybrid battery to inspect the individual cells but if it did this, historic data would be lost. BMWFS maintained it was allowed to have the matter investigated and it was entitled to an opportunity to repair the X5 eDrive.

This gave rise to two key facts in issue:

• Whether Dr C was entitled to reject the car due to the EV range being significantly less than promoted
• Whether, having been unable to find a fault and declining Dr C’s rejection request, BMWFS should now be allowed to repair the car.

BMWFS and the supplying dealership maintained the hybrid battery was not faulty, but that the performance of the hybrid battery was dependent on a number of factors, such as how the car was used and the conditions in which it was used. It also said there were no issues with the combustion engine, so Dr C was still able to use the car.

However, neither the BMW main dealer nor BMWFS had informed Dr C of any depletion in battery charge over time nor that its range could be affected by climatic or road conditions.

The result was that Dr C’s issue with the hybrid battery capacity meant that the car was inefficient when considering miles per gallon, running costs and environmental considerations.

While the FOS upheld Dr C’s complaint, concluding the vehicle wasn’t of satisfactory quality, they did not comment on the misrepresentation or description point which is perhaps the more pertinent issue in the current migration to electric vehicles.

The FOS decided that Dr C should be allowed to reject the Vehicle and the finance agreement be unwound, finding that the complaint was raised within 30 days.

The wider issue is in dealing with the misapplication of the Consumer Rights Act 2015 in looking for fault where there is non,e rather than a lack of conformity to the contract, namely that what Dr C received was not what he bargained for.

Although the FOS complaint process was lengthy and made more so by BMWFS’ intransigence, Dr C expressed his gratitude to Stormcatcher Law for achieving the desired outcome.

Stormcatcher is a registered trade mark and trading name of Law Plan Services Ltd, a firm authorised and regulated by the financial conduct authority with the reference number 937045 to deal with automotive law complaints involving car finance and faulty vehicles bought on finance.