Motor Consumers - Defence is the best form of attack

We are often asked to advise on matters where parties claim that they had agreed something either over the telephone or in person but there is no written record of that agreement. In the recent case of Pebble v Costa, the Court of Appeal stated that where there is no evidence of an agreement in writing, it was open to a judge to decide what had been agreed based only on what appeared likely in the circumstances and how the witnesses appeared in court.

Consumer law in England is heavily weighted in favour of the consumer since they are considered to be in need of greater protection under the law than businesses. Therefore in any dispute involving consumers, businesses need to ensure that their procedures are as solid as possible to refute any claims against them.

A key recurring issue when we act for dealers is the lack of available documents to prove the case, which leaves the way clear for the consumer`s story to be accepted. Contemporaneous documents absolve clients.

We therefore set out some simple advice for motor dealers to assist them in resisting spurious claims.

Self Help

There is no better way to refute allegations than to be able to produce some written evidence that proves that no issue exists. Even if the advice or information is over the telephone, remember to make a note of what was said in the customer`s file. Even a handwritten note with the date is better than nothing. A couple of practical examples are:

• If you sell a car with a specific defect (such as a scratch), ensure that you meticulously record the defect on the order form or receipt.
• If a customer tells you that they wish to buy a product for a particular purpose, and you do not think that that product will not meet that purpose, note this fact on the order form or receipt and get the customer to sign it.
• An estimate for repairs is not binding on the repairer, whereas a quotation will be. It is therefore very important that you differentiate between the two and make sure you get express permission (preferably again in writing) from the customer of exactly what repairs they want you to carry out.
• When carrying out diagnostic work, agree in writing with the client an upper limit on the value of work to be carried out. Only if you get express permission from the client should you exceed this value (or you may not get paid).
• A customer may ask you to carry out work for a particular purpose, such as adding particular parts that the customer believes will have a specific effect. If you do not believe that the work will have the desired effect, be sure to tell the customer and record that you have done so, especially if the customer insists on having the work done anyway.

Record keeping

Obviously, getting things in writing is useless if it subsequently cannot be found and used. Therefore it is imperative that all records are kept up to date and stored in dry, safe places for a period of time. We normally recommend that our clients keep all written records for at least six years before disposing of them because that is the deadline for most claims. It is also best to have a filing system allowing you to locate old records with ease.

If you do end up in proceedings, the records will almost certainly have to be disclosed and this runs to electronic records which nowadays have to be searched as well. 

In conclusion,

• Defence is the best form of attack - keep your records and use common sense.
• Most dealers know when a customer is a risk and appropriate steps should be taken.
• Be careful what you write down - it could be used against you so stick to the facts.
• Keep records for 6 years or more.