Arranging court case against garage... liability question

Amleto

Amleto

Amleto

Soldato
Joined
13 Feb 2003
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The short of it is (there is a much longer story in this forum somewhere) that my wife's focus went into a garage (circa 3 years ago) with an electrical fault. They said it was the dash console and replaced it but the problem persisted. I thought they didn't test the console before replacing, relying on engine error codes to make their judgement.

I was preparing to make a small claim against them so had the original console tested - BBA reman confirmed it to be working.

I put all this in a letter before action to them and they said they did have the console tested.

They put it that they paid for a specialist and he used diagnostic tools on the car and the result was that the console was indicated. They presented me with an invoice that that only itemises installation of the replacement console and say that the tool's diagnostic output is lost.

Now, my initial letter says that they were negligent in their duties to keep costs reasonable since they did not test the console. They still cannot prove they did, and the garage worker says that the specialist they employed also does not have the diagnostic readout anymore, and since it was over 3 years ago they have no specific recollection of this incident to confirm or deny that they did any testing.

The garage owner was offering a free major service + mot plus work required plus maybe another free service to get the total to ~£300-£400.

The console replacement was £700-£800. I requested £500 to avoid action. My wife does not want to give the car back to them. I'll try and find the longer version so you can get a better understanding of why!

Given that they insist they did carry out testing, does/will this affect my likelihood of recovering costs in a claim?

One one hand if the judge believes them then they were not negligent, but on the other hand they are still ultimately responsible for replacing a functioning console.

I'm hoping that it should theoretically be a case of me claiming off the garage, and the garage claiming back off the specialist, but is this so?

old thread: linky
 
The big question you are going to have to prepare for is why this has taken you so long to begin civil proceedings against the company?

I see you tried to initially challenge this by way of a chargeback through Visa - but it doesn't take 3 years for a chargeback to go through. In fact, if I recall correctly, the merchant has 45 days to dispute the chargeback and if they do not it remains as a permanent credit.

What was wrong with the car in the end?
 
Seems far too much effort to me for a few hundred quid, but I also admire people who go after people who are swinging the lead, if that is what is happening. Good luck.
 
I'd take their offer too. My time is worth so much more than holding people to perfect pricipals.
 
Gaygle said:
The big question you are going to have to prepare for is why this has taken you so long to begin civil proceedings against the company?

I see you tried to initially challenge this by way of a chargeback through Visa - but it doesn't take 3 years for a chargeback to go through. In fact, if I recall correctly, the merchant has 45 days to dispute the chargeback and if they do not it remains as a permanent credit.

What was wrong with the car in the end?
Click to expand...

I have reasons although they're not really important since there isn't a statute of limitations. However, Mum getting terminally ill and dying, dealing with the estate for over a year including a house sale and further legal threats against the estate solicitors for mishandling the house sale, plus buying and moving into my own house, plus a new born baby. These are all things that were top of the queue.

The actual problem was a connection to the fuse box in the engine bay.
 
Sirrel Squirrel said:
I'd accept their offer to be honest, it'll cost you about £200 to get a small claims case to judgement and it'd be hard to prove one way or the other.
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It wont be hard to prove... it's already proven that the console that was replaced was working correctly. I'm just not sure how liable they are given they delegated the diagnosis.
 
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You won't win this. Especially if they have codes or a print out from a reputable diagnostics manufacturer that the codes related to a fault in the console. It's unreasonable to ask a garage to ignore fault codes and go hunting in the car blindly for what is causing an intermittent issue.
 
pepsilol said:
You won't win this. Especially if they have codes or a print out from a reputable diagnostics manufacturer that the codes related to a fault in the console. It's unreasonable to ask a garage to ignore fault codes and go hunting in the car blindly for what is causing an intermittent issue.
Click to expand...

I agree with you but it's equally unreasonable for a garage to go randomly firing parts at a car at the expense of the customer because 'herp derp computer says this' and then expecting them to pay for the brand new replacement parts that the car never needed and didn't fix the problem.
 
[TW]Fox;29789734 said:
I agree with you but it's equally unreasonable for a garage to go randomly firing parts at a car at the expense of the customer because 'herp derp computer says this' and then expecting them to pay for the brand new replacement parts that the car never needed and didn't fix the problem.
Click to expand...

Exactly the garage is right to use diagnostics on the console but they should have then tested the console to fault find, not just chuck a new one in and hope for the best.

Was the fault found in the end OP?
 
Just hope the judge hasn't had any personal dealings with BBA, they are absolutely useless.

We have sent them ECU's, power steering columns, dashs and ABS units to them to be told that they were working fine only to end up many many hours later in fitting new ones and fixing the cars. They have cost us thousands through man hours spent tracking phantom faults because that lot couldn't test a lightbulb.

Also 3 years? Sorry mate, you left it too long.
 
pepsilol said:
You won't win this. Especially if they have codes or a print out from a reputable diagnostics manufacturer that the codes related to a fault in the console. It's unreasonable to ask a garage to ignore fault codes and go hunting in the car blindly for what is causing an intermittent issue.
Click to expand...
They don't... it's in the op.

adam cool dude said:
Exactly the garage is right to use diagnostics on the console but they should have then tested the console to fault find, not just chuck a new one in and hope for the best.

Was the fault found in the end OP?
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Yes, but not by them. It was a fuse box connection in engine bay.

dalin80 said:
Also 3 years? Sorry mate, you left it too long.
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According to what law?
 
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You won't win, unless you have evidence to prove your claim.
The Judge will ask you what is the basis of your claim, and to show your proof.
Then give the defendant the oppurtunity to refute your claim.
It is not up to the third party to prove your claim in wrong it is up to you to prove it is right.

Was your contract for the to fix the fault or not just an invoice saying they replaced the part (which it sounds like they did)?
 
If it goes like this then I'm golden:
Claim - they replaced a correctly functioning console which is contrary to their obligations under soga/consumer rights laws. They should therefore repay costs associated with unnecessary work.

Proof: Independent test result of console determines that it is working as expected.

My contract (verbal) was always to fix the electrical fault. Only after they confirmed it was fixed (they were wrong...) was the invoice settled, which only itemised work done.

I know where you're coming from, but frankly it's not as simple as what's on the invoice.
 
OK, but your case it not very straightforward and may be rather difficult as a first claim and the Judge will ask why you waited 3 years to bring this case and when you first realised there was a problem. I big gap will not be in your favour.
If you use the report to say the original console was working, then you will have to take the person who carried it out as a witness, otherwise it is classed as hearsay and cannot be considered.
You cannot normally use testomony made by a third party who is not there, an example of an exception would be if they worked at a company and had passed away and their replacement had all of the same documentation and procedures and they could verify it.
The witness will be asked if they have qualifications or accreditation in this area so that they may be deemed an Expert Witness. If they are a layperson, their testamony will have little value.

If you file a claim (I recommend online via googling MCOL), your best hope would be fore a refund and you would have to return one of the consoles back to the Defendant.

There is also the ADR (Alternative Despute Resolution) track which you can try before going to court. You could in fact suggest the above via that.

For anyone having remedial work carried out, always have the receipt say what the problem was and the remedy, such as:
Customer reported black smoke from exhaust.
Replaced EGR.

NB. I do not give these opinions as Legal Advice.
 
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"otherwise it is classed as hearsay and cannot be considered."
Incorrect for civil cases from what I can see - It's down to the judge to apply whatever weight is appropriate. There is a hearsay exception for business documents so I may see if I can get a copy of that rather than the custom letter that I have now.
 
You would have to give notice and a copy to the Court and the Defendant of any hearsay evidence when you make your claim.
If you elaborate on it you will probably get told off.
If the third party wants to cross-examine, they you will have to get them to come or the Judge can discount it.
As this is pretty much your only piece of evidence you need to think about it from the Judge and other parties shoes and pre-empt all their questions.
 
3 years is too long ago!

We might keep job cards for a few years at work, but the very specific print outs from the diagnostic machine etc will be long gone. We as a garage just don't have the space to keep all the paperwork.

It sounds like the garage owner is trying his best to keep you as a customer, offering you the MOT/services. I would except and leave it at that. That's very generous of him.

You go into the garage and say, "3 years ago you replaced a part, it didn't fix it, I want £500." What do you expect them to do?? "My bad sir, have your money back". I don't think so.
 
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