SOGA Rules Supreme

[Dustydog]

With courtesy of Daily Telegraph's Honest John I came across this piece at the weekend.

The ultimate Law on SOGA matters was determined in the Supreme Court Ruling in Clegg v Olle Anderson ( trading as Nordic Marine) 2003;

Where a fault is present from date of sale, this ruling compels the vendor to take the goods back and refund the purchaser's money even after attempts have been made to rectify the fault.

Nothing overules the Supreme Court in English Law.
Dealers are generally scared stiff of this ruling. As usual it is the Seller / dealer who is liable not the manufacturer.

So who will be the first to invoke this piece of Law this year??

 

[ProfJohnL]

Hello Dusty,

I do hope someone does use the clarification, but before emarking on such action, consumers should be aware that the ruling will only apply where the circumstances are essentially the same.

It is unlikely to apply for instance if a bulb failure was not urered by changing the bulb, where the fault is ultimately a connection in the light fitting. Simplistic I know but it demonstrates the principal.

 

[Parksy]

The drawback is that it could be difficult to prove conclusively that an item was faulty from the date of sale.
In the case of the forum user with an eight month old caravan which has water ingress how could he prove conclusively that the caravan was faulty at the point of sale now that the 6 month SOGA time limit for an automatic replacement or refund has lapsed?

 

[Dustydog]

Morning John
Strange no one on here has ever come across this case before. We take the Which? magazine and they have never mentioned it.
As far as I can gleen the defect must be something more than the trivial lightbulb. There are some new caravans out there where the door frames and side panels are bulging because the manufacturer used insufficient timber support. That scenario will qualify for a full refund IMO.
I think you were up too late last night , you did of course mean "principle"

.

 

[Surfer]

I would assume that the probablity that caravanwas faulty at point of sale is very strong considering that it should have a 6 year warranty against leaks even befroe the first service. I don't think the poster refers to a specific time at which a leak was discovered.
Maybe an initial leak was found after a month and repaired, but over subsequent months more leaks were found. Until poster clarifies, it is just assumptions however the ruling will be a good benchmark to use in any case. Click on the link if you want to read it in full. I have bookmarked it in case ti can be of use to someone, hopefully not me.

 

[Dustydog]

The Judge may well say to the Manufacture,a caravan should remain water tight longer than 8 months if it had been constructed correctly in the first place. The sealants and bondings are designed to last 6 - 10 years depending who the manufacturer is.
Do manufacturers boast their caravans will leak after 8 months light use??
I suspect any good caravan engineer would soon see the original joint was not made correctly otherwise why did it leak? It can't be too much usage , or can it

Parksy
It is important to remember that the Legal Precedent in the Judges "Obiter Dictum" ,is that set out in the Supreme Court Ruling which expanded legally on the T&Cs of SOGA.

On leaks in general I wonder what causations Damian has seen over the years?

 

[DeliDave_]

Interesting reading,good post to keep imho

 

[ProfJohnL]

Thank you Surfer for finding the actual judgment.

Having read it, it certainly gives some increased hope and clarity to the powers of SoGA.

There are however some important differences between the yacht scenario and the leaking 8 month old caravan for which I think expecting a refund on the caravan is not a foregone conclusion.

In the court case it was agreed by all parties the product was not to specification at the point of sale even though this may have come to light after the sale. In the case of the caravan there is no real suggestion it was not to specification just the possibility it may have had a leak path present, which might be contested by the seller. Which means at 8 months old the customer has to positively show the fault was present.

It is implied but not covered in any detail in the courts ruling that as a result of the yacht's excess weight/draft, the customer may be charged more to keep and licence/insure the vessel over one of the correct specification so a potential consequential loss. For the caravan there is no similar consequential penalty.

In the case of the yacht there was agreement on both sides that the product safety margin was reduced. A water leak is unlikely to affect the overall safety of the caravan package.

And as a result of the none conformity the working life of the yacht's rigging was also impaired. this is an issue of fitness for purpose, and durability. The leak in the caravans could be construed to affect its durability.

I repeat I think it not a foregone conclusion that the ruling will actually help Peter with his caravan. However if he can show that on balance it's likely the fault existed at PoS, then the ruling may open a channel for him to reject the caravan even at this late stage. Its worth seeking professional legal advice, and bringing the courts judgment to the attention of his advisers.

I hope his case is resolved satisfactorily.

 

[Guest]

I think SOGA should hold no worries for the honest retailer, however, what bugs me is he is more often not the perpertrator. Only IMO can this good law be seen as totally fair when the perpertrator is along side him in the dock, at least, taking his fair share of the blame and resulting costs?!

 

[ProfJohnL]

Hello Gary,

I totally agree.

The dislocation of responsibility generated through the SoGA concentration on the contractual arrangement certainly means manufacturers can often 'hide' behind a dealer. I do wish there was simple legal procedure that could be invoked to challenge manufacturers when end users are clearly being wronged.

However, sellers are and should be culpable, its part of their business risk, and the reason they generally have quite substantial mark ups on the trade price of goods they sell. They should perhaps be more prepared to negotiate less restrictive deals with manufacturers so when a customer has a problem, the dealer can more effectively reverse the supply chain to transfer the problem or the cost of the problem back to its point of origin - in effect an commercial version of SoGA.

Only when business really start to feel the commercial/financial/social pain their mistakes cause their customers will they start to concentrate on sorting out the silly repetitive errors they seem to make.

 

[Raywood]

There are various court cases on this subject and repudiation of the contract is not always upheld. There are various things taken into account and the result is never a forgone conclusion. The best attack with a leaking caravan is that the leak has to be through a leaking seal and that is the result of faulty workmanship. This means that even if the leak is not discovered for some time the fault still existed at the time of purchase. To take it to court you may need independant expert evidence which would generally mean that they would need to inspect it once the area involved had been exposed which may be difficult if the selling dealer is doing the work under guarantee and there is also the cost of the inspection running to several hundred pounds to consider. This makes the whole thing rather risky and probably accounts for the low number of reported cases.
If you do pursue this line you need a two pronged attack asking for the courtn to allow you to reject the goods i.e the caravan and as an alternative award damages for inconveniance, loss of use and other costs involved. The guarantee might exclude this last item but you should be pursuing the dealer as well and if possible any HP company, you might allege the terms of the guarantee fall foul of the Unfair Contract Terms Act but I cannot be sure that thjis will work.
If you do this you should get a sensible offer of compensation you would almost certainly have to seriously consider it as if you do not beat it you could be landed with the costs from the date of the offer. It is this last point where the risk comes back on the claimant that prevents many cases going further.

 

[ProfJohnL]

If you do pursue this line you need a two pronged attack asking for the courtn to allow you to reject the goods i.e the caravan and as an alternative award damages for inconveniance, loss of use and other costs involved. The guarantee might exclude this last item but you should be pursuing the dealer as well and if possible any HP company, you might allege the terms of the guarantee fall foul of the Unfair Contract Terms Act but I cannot be sure that thjis will work.

Hello Raywood,
As you point out the burden of proving a fault existed can be quite difficult and expensive, and with no guarantee of wining, sometimes withdrawal is the most prudent course of action. This is why its much better to tackle these issue within 6 month if possible.

But your second paragraph (quoted above) does not seem right. No guarantee or warranty can prevent a legitimate legal claim under SoGA for any customers directly related costs/losses incurred as a direct result of a product failure. Consequential losses are different matter and would have to be claimed under different legislation and they may be limited by guarantee or warranty T&Cs.

Interestingly, a point which is often overlooked or conveniently swept under the carpet, relates to the the duty of the seller under SoGA to collect faulty goods from the customer with the minimum of inconvenience and zero cost.

In the case of a caravan, if you have a fault which is being handled under SoGA, then the dealer/seller should collect the caravan from you. If the dealer refuses to collect, or asks you to deliver the caravan then you can recover your (fair and reasonable) costs of returning/collecting the caravan to them, The same applies to postage and phone calls, and even loss of earnings if unpaid time HAS to be taken of work to facilitate the sellers activity.

Why should you be out of pocket for a fault not of your making?

 

[Dustydog]

Ray does make a very valid point that apart from SOGA there may a case to answer under the Unfair Contract Terms Act. Again until this gets tested in Court we will never know.
What is encouraging looking at the bigger picture is that the tools now available to the customer for redress are much better than before. Equally it is pretty common place today that Contractual Terms imposed upon a customer cannot necessarily modify their Common Law Rights. I say this in the context a seller or manufacturer cannot hide behind a T&C where there has been a blatant failure that has prejudiced the buyer.

IMO any caravan that leaks within the manufacturers water ingress guarantee must have contained an inherent or latent defect at the time of manufacture and original point of sale; extraneous accident damage excepted. I am no caravan engineer but it does seem the joints fail because either they were badly made in the first place or the bonding material was defective.

 

[ProfJohnL]

Equally it is pretty common place today that Contractual Terms imposed upon a customer cannot necessarily modify their Common Law Rights.

Hello Dusty.
Its more definative than tha. A customers stautory retail rights CANNOT be diminished by any commercial contract. Any attemt to remove a customers rights is illegal.
I am also inclined to agree that any caravan that leaks within the normal life expectancy of the caravan (not including damage) is almost certain to have faulty materials or workmanship.

 

[Raywood]

The rights under SOGA are against the dealer, and if there is one, any HP company and you do have better rights against them than under the guarantee assuming the dealer is still there. If you paid the deposit on a credit card you might find you have rights against the card company as well.
The guarantee usually excludes consequential losses so your rights for anything other than the repair costs are not on the face of it covered by it and this is the Unfair Contract Terms point that has not been tested in a reported case that I know of.

 

[ProfJohnL]

Hello Ray

Perhaps I've not made my self as clear as is needed, We must be very careful to differentiate between Statutory rights and any guarantees/warranty. They are not the same.

A guarantee/warranty is a commercial offer made by the seller or the manufacture to undertake defined actions if certain defined faults arise after the point of sale. They are not legally required to offer these services and they can be laced with as many restrictions as the supplier wishes, including no liability for consequential losses, no refunds on cost of transport etc..

But the Statutory rights relates to the condition of the caravan at the point of sale and are defined in SoGA and similar Acts. If the fault was present or can be shown to have been present at the point of sale, then the consumer can choose whether to pursue the issue through SoGA where the legislation requires there to be minimal inconvenience to the customer, but can be harder to prove, or to use the simpler process of manufacture guarantee, where the offset is there may be less scope for refunds of consequential losses.

No guarantee/warranty or any commercial commercial or retail contract can diminish the consumers rights under SoGA, which is why most guarantee statement include a phrase to that effect.

 

[Raywood]

I agree with your summing up but therer is no reason why you should not get the repair done under the guarantee and pursue a claim for other losses under SOGA but against the dealer and lender.

 

[Surfer]

The rights under SOGA are against the dealer, and if there is one, any HP company and you do have better rights against them than under the guarantee assuming the dealer is still there. If you paid the deposit on a credit card you might find you have rights against the card company as well.
The guarantee usually excludes consequential losses so your rights for anything other than the repair costs are not on the face of it covered by it and this is the Unfair Contract Terms point that has not been tested in a reported case that I know of.

Having bought cash once and then having hassles with warranty work, we now always buy on HP with a large deposit, low repayments and over at least 3 years. Previously when we needed some warranty work in 2007 the dealer was reluctant to do it as the caravan was almost 3 years old and the manufactuer was giving the dealer a hard time. A letter to the HP company and the job was done in less than a week! This is when it pays to buy on HP as you have someone else who can put pressure on a dealer or the manufacturer!

 

[Raywood]

The rights under SOGA are against the dealer, and if there is one, any HP company and you do have better rights against them than under the guarantee assuming the dealer is still there. If you paid the deposit on a credit card you might find you have rights against the card company as well.
The guarantee usually excludes consequential losses so your rights for anything other than the repair costs are not on the face of it covered by it and this is the Unfair Contract Terms point that has not been tested in a reported case that I know of.

Having bought cash once and then having hassles with warranty work, we now always buy on HP with a large deposit, low repayments and over at least 3 years. Previously when we needed some warranty work in 2007 the dealer was reluctant to do it as the caravan was almost 3 years old and the manufactuer was giving the dealer a hard time. A letter to the HP company and the job was done in less than a week! This is when it pays to buy on HP as you have someone else who can put pressure on a dealer or the manufacturer!

An interesting idea and well worth considering. If you put down a deposit use a credit card and you should get the same protection as I understand it.

 

[Surfer]

The rights under SOGA are against the dealer, and if there is one, any HP company and you do have better rights against them than under the guarantee assuming the dealer is still there. If you paid the deposit on a credit card you might find you have rights against the card company as well.
The guarantee usually excludes consequential losses so your rights for anything other than the repair costs are not on the face of it covered by it and this is the Unfair Contract Terms point that has not been tested in a reported case that I know of.

Having bought cash once and then having hassles with warranty work, we now always buy on HP with a large deposit, low repayments and over at least 3 years. Previously when we needed some warranty work in 2007 the dealer was reluctant to do it as the caravan was almost 3 years old and the manufactuer was giving the dealer a hard time. A letter to the HP company and the job was done in less than a week! This is when it pays to buy on HP as you have someone else who can put pressure on a dealer or the manufacturer!

An interesting idea and well worth considering. If you put down a deposit use a credit card and you should get the same protection as I understand it.

Not for warranty work.

 

[ProfJohnL]

Not for warranty work.

Can you explain please?

 

[Surfer]

Not for warranty work.

Can you explain please?

Reference was for using credit card as deposit.

 

[Raywood]

Providing you use a credit card when paying your deposit for a caravan or anything else you do get certain rights under the Consumer Credit Act which will helpif the product turns out to be faulty. My main reason for using one however is the protection you get if the retailer goes bust as you would then have a right of recovery from the bank for the deposit and using my CC credit card I do build up points for free nights on site. In these uncertain times how many of us can be sure the retailer will still be there when the time to hand over the caravan arrives so a little extra protection always helps.

 

[ProfJohnL]

Hello Surfer,

As Raywood has pointed out, it is certainly another method of maximising your protection if a seller goes bust, But even if the seller is still operating, if they are not playing by the rules, then you have another method of bringing legitimate pressure to bear to get the work carried out properly.

Part of the issue is that whilst the general public may not fully understand their rights under SoGA and other related legislation which is why we can get such bad service form unscrupulous sellers, its also the case that some sellers don't understand their legal obligations.

 

[Surfer]

Hello Surfer,

As Raywood has pointed out, it is certainly another method of maximising your protection if a seller goes bust, But even if the seller is still operating, if they are not playing by the rules, then you have another method of bringing legitimate pressure to bear to get the work carried out properly.

Part of the issue is that whilst the general public may not fully understand their rights under SoGA and other related legislation which is why we can get such bad service form unscrupulous sellers, its also the case that some sellers don't understand their legal obligations.

I thought that there is a time limit on a credit card claim, but not according to section 75.

75. — (1) If the debtor under a
debtor-creditor-supplier agreement falling within section 12(b) or (c)
has, in relation to a transaction financed by the agreement, any claim
against the supplier in respect of a misrepresentation or breach of
contract, he shall have a like claim against the creditor, who, with the
supplier, shall accordingly be jointly and severally liable to the
debtor. less info

(2) Subject to any agreement between them, the creditor shall
be entitled to be indemnified by the supplier for loss suffered by the
creditor in satisfying his liability under sub-section (1), including
costs reasonably incurred by him in defending proceedings instituted by
the debtor.

(3) Sub-section (1) does not apply to a claim:

(a) under a non-commercial agreement,

(b) so far as the claim relates to a single item to which the supplier
has attached a cash price not exceeding £100 or more than £30,000, or

(c) under a debtor-creditor-supplier agreement for running-account credit:

(i) which provides for the making of payments by the debtor in relation
to specified periods which, in the case of an agreement which is not
secured on land, do not exceed three months, and

(ii) which requires that the number of payments to be made by the debtor
in repayments of the whole amount of the credit provided in each such
period shall not exceed one.

(4) This section applies notwithstanding that the debtor, in entering
into the transaction, exceeded the credit limit or otherwise contravened
any term of the agreement.

(5) In an action brought against the creditor under sub-section (1) he
shall be entitled, in accordance with rules of court, to have the
supplier made a party in the proceedings.

75A (1)If the debtor under a linked credit agreement has a claim
against the supplier in respect of a breach of contract the debtor may
pursue that claim against the creditor where any of the conditions in
subsection (2) are met.

(2)The conditions in subsection (1) are—

(a)that the supplier cannot be traced,

(b)that the debtor has contacted the supplier but the supplier has not responded,

(c)that the supplier is insolvent, or

(d)that the debtor has taken reasonable steps to pursue his
claim against the supplier but has not obtained satisfaction for his
claim.

(3)The steps referred to in subsection (2)(d) need not include litigation.

(4)For the purposes of subsection (2)(d) a debtor is to be deemed
to have obtained satisfaction where he has accepted a replacement
product or service or other compensation from the supplier in
settlement of his claim.

(5)In this section “linked credit agreement” means a regulated
consumer credit agreement which serves exclusively to finance an
agreement for the supply of specific goods or the provision of a
specific service and where—

(a)the creditor uses the services of the supplier in connection
with the preparation or making of the credit agreement, or

(b)the specific goods or provision of a specific service are explicitly specified in the credit agreement.

(6)This section does not apply where—

(a)the cash value of the goods or service is £30, 000 or less,

(b)the linked credit agreement is for credit which exceeds £60, 260, or

(c)the linked credit agreement is entered into by the debtor
wholly or predominantly for the purposes of a business carried on, or
intended to be carried on, by him.

(7)Subsections (2) to (5) of section 16B (declaration by the
debtor as to the purposes of the agreement) apply for the purposes of
subsection (6)(c).

(8)This section does not apply to an agreement secured on land.