The consumer’s issue:
“I ordered a campervan in November, which was due to be delivered in March ready for spring and summer use. After periods of poor communication, I am informed that it would now be late August for the delivery, thereby causing me losses due to pre-booked holiday costs, depreciation and wear on my existing vehicle.”
The accredited business’ response:
- The campervan was due to arrive from the manufacturer on 28thAugust, but it has not yet arrived and we have been told that there has been a delivery block pending a software update.
- This is beyond our control to influence this, but we will update the customer as soon as we can. Apparently, it is one of many vehicles subject to this restriction.
- With regards to this summer, I understand that the customer was in a replacement vehicle with the cost covered.
The adjudication outcome:
- The Motor Ombudsman adjudicator noted that the consumer’s rights under the Consumer Rights Act 2015 (CRA) and the Motor Industry Code of Practice for Vehicle Sales might allow them to claim for any reasonably demonstrated cost so long as it can be suitably linked to a breach of a duty that the business owed to the consumer.
- The most obvious of this is that which the business accommodated i.e. the loss that would have been incurred from not having the vehicle over the summer. This would extend to any such costs which are demonstrated if the business is unable to fulfil their side of the contract of sale.
- The adjudicator did not have a copy of the contract of sale and its expressed terms, and the adjudicator requested a need to see this to definitively determine the impact of these delays on the consumer and their rights.
- The adjudicator noted broadly speaking, save for any act out of either parties’ control (known as force majeure ) if the business fails to complete an express term of the contract, then costs may be claimed for.
- What had to be established is whether the current delays constituted being out of the business’ control and whether the agreement contained an estimated date of delivery, an expressed date or any other.
Conclusion:
- The ‘contract’ requested was supplied in full to the adjudicator, showing no expressed terms relating to the delivery date. What was also shown, is that there was until the point of delivery, no penalty for the consumer to withdraw from the agreement as no money had in fact changed hands.
- The adjudicator therefore communicated to the parties that the choice lay with the consumer, as there was no sanction to rescind the agreement. This meant that:
- The consumer could essentially choose to walk away and commence action to take delivery of another vehicle and one from another brand.
- He could continue to wait for the delivery of the campervan. However, as there was no term stating delivery, no formal exchange between the parties, and no terms to it, he may not be able to claim further losses due to the vehicle’s delivery than what was already provided to him.
The case remains ongoing whilst the customer makes a decision based on the above options.
