Alison Kynaston-Mainwaring v GVE London Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Phillips,Lord Justice Snowden,Lord Justice Green |
| Judgment Date | 19 October 2022 |
| Neutral Citation | [2022] EWCA Civ 1339 |
| Docket Number | Case No: CA-2022-000662 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1339
Lord Justice Green
Lord Justice Phillips
and
Lord Justice Snowden
Case No: CA-2022-000662
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
HIS HONOUR JUDGE PEARCE
CC-2021-MAN-000029
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Weekes KC and Celia Rooney (instructed by Knights) for the Respondent/Claimant
Edward Levey KC (instructed by Malvern Law) for the Appellant/Defendant
Hearing date: 21 July 2022
Approved Judgment
This judgment was handed down remotely at 2 pm on 19 October by circulation to the parties or their representatives by e-mail and by release to the National Archives,
On 18 March 2022 HHJ Pearce, sitting as a Judge of the High Court (“the judge”), made an order declaring that the respondent had validly rejected a motor car sold to her by the appellant (a company in the business of selling luxury cars) and that title to the car would revest in the appellant on payment of sums due to the respondent. In that regard, the judge ordered that the appellant refund £117,000 to the respondent, being the price paid for the car less a deduction of £5,000 for use pursuant to her rights under the Consumer Rights Act 2015 (“the 2015 Act”) and pay £1,334 in damages.
The appellant appealed that decision, contending that the judge was wrong as a matter of fact and law to find that the car was not of satisfactory quality 1. Permission to proceed was granted by Males LJ. In the event, and as explained below, the appeal ultimately boiled down to a challenge to the judge's central finding of fact, namely, that the car had been properly serviced in May 2019.
The essential facts
On 8 August 2018 the respondent purchased the car, a Mercedes AMG GTC Roadster 2-door convertible registration number S7 ALY, from the appellant for £122,000. After taking delivery on 7 September 2018, the respondent parked the car in a garage at her home except for a few days in November 2019 when she left it outside. On 22 November 2019, when she came to move the vehicle, she found that the footwell on the passenger side had filled with rainwater. This caused extensive damage to the electrical components and wiring of the car. On 30 September 2020 the respondent commenced these proceedings, seeking relief under the 2015 Act for the supply of a vehicle which was not of satisfactory quality.
The case proceeded within the Shorter Trials Scheme. The trial commenced on 14 March 2022, the judge delivering judgment at the end of the trial, on 17 March 2022.
The judgment
The judge identified that the “main issue” was the cause of the “ingress of water” [13], which he described as “catastrophic” [3]. He recorded that the appellant had advanced various explanations for this event, each of which had been rejected by both parties' experts [26]–[27]. The judge instead accepted the explanation provided by the experts, namely, that there was a blockage of a drainage channel which runs from the rear of the roof of the car and exits on the underside of the car [29], [33] that resulted in water overflowing into the footwell [98]. The central question, therefore, was what had caused that blockage such that the flooding occurred in November 2019 [68].
The judge accepted the respondent's evidence that the car had, on the whole, been stored overnight in the garage which the respondent had adapted for that purpose [74]–[75]. At [91] the judge accepted the respondent's statement that the first occasion on which she had left the car outside overnight was the period of a few days prior to the discovery of the water ingress. He also accepted that, whilst outside, the roof was up and the windows were closed [92]. He also accepted that the vehicle was kept in very
There was no reason, in the judge's view, to think that the drainage channel was blocked at the time the vehicle was serviced in May 2018, or at the time of delivery to the respondent in September 2018 [124]–[125]. In February 2019, however, there was “relatively extensive condensation” on the inside of the vehicle which caused misting of the windows [15], [81]–[83]. Then, in April 2019, the car went to RSC, a company which specialises in bodywork. Mr Clapton, a director of RSC, stated that there was “dampness to the carpet” [88]. The judge accepted this evidence and found that there was, at the very least, moisture present in the car on that occasion [89]. As a result, the judge concluded that it was more probable than not that these two incidents were caused by “some blockage in the drain” [90], the cause also of the flooding in November 2019. In particular, he accepted the consensus view of the experts that the grill on the top of the drainage channel allowed small items of organic debris to enter, which could accumulate in the channel due to the rubber diaphragm at the bottom, resulting in the blockage and, ultimately, the flooding [108], [113].
It was accepted by both sides' experts that this constituted a “potential weakness” of design [113]. It was the appellant's contention, however, that this should be managed by routine servicing and that the problem in this case was that the blockage, which was evidenced by the incidents in February and April 2019, had not been dealt with at the service conducted by the Mercedes-Benz dealer, Lookers, in May 2019 [89], [122]. The judge's decision, therefore, ultimately turned on his finding as to what happened (or did not happen) at the service in May 2019. The appellant supported its submission that the drain cannot have been cleared by reference to the inability of Mr Roberts, the appellant's expert, to find, in an internet search, any references to such a problem apart from this incident [109]. Indeed, the appellant submitted that there are thousands of cars in the world with this feature and yet there appears to be no other recorded incident of this kind [121]. Mr Roberts also mentioned in evidence that he had seen (but could not produce) a “manufacturer's service list” (also referred to by the judge as the “service schedule”) which showed the need to clear the body drains to the car during a service [107].
The judge addressed the critical issue in the following way:
“127. I have referred already to the slightly unsatisfactory feature of this case that there is not before the Court the schedule that says that the drain should be cleared annually on the service, or at least checked annually on the service and cleared if it is blocked. It is more likely than not that Mr Roberts is right about what that says. Given my other assessment of him, I have no reason to think that he would be making up reference to a service schedule that did not actually exist.
128. However, then if he is right, that that is what the service schedule said, it is obviously more likely than not that the drain was cleared, if blocked, in May 2019. Of course, the problem occurred in November, as we know, when it might be thought, applying Occam's Razor if nothing else, that it was most likely a continuous problem. However, if it was a continuous problem, why was there no water ingress at any other time?
129. The answer, of course, might depend on when the vehicle was actually in the rain. However, given that we know from what actually happened that it was possible for this problem to arise between a May 2018 service and February 2019, it is equally possible that it arose between a May 2019 service and November 2019.
130. On that basis, one should not assume that those who carried out the service in May 2019 failed to clear blockage. It is rather more likely that they did clear a blockage, which is why the problem was not apparent again for several months”.
The judge expressed caution at drawing any inferences from the lack of evidence of any other such incidents given that, as Mr Roberts accepted, a manufacturer would be unlikely to reveal this unless they had to, and one would not necessarily expect the problem to come to light unless it had reached the level at which a recall of the vehicle was being considered [131]–[132].
The judge then considered the relevant provisions of the 2015 Act:
“135. I turn then to the question as to whether that is indicative of this vehicle not being of satisfactory quality. Section 9 of the Consumer Rights Act 2015 provides that:
“Every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory.
(2) The quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory, taking account of –
(a) any description of the goods,
(b) the price or other consideration for the goods (if relevant), and
(c) all the other relevant circumstances.
(3) The quality of goods includes their state and condition; and the following aspects (among others) are in appropriate cases aspects of the quality of goods –
(a) fitness for all the purposes for which goods of that kind are usually supplied;
(b) appearance and finish;
(c) freedom from minor defects;
(d) safety;
(e) durability”.
136. What is of satisfactory quality is, of course, an evaluative judgement.”
In light of his earlier findings, the judge concluded that a car that is capable of flooding in this way cannot be said to be of satisfactory quality [143].
As to remedy, the judge preferred the reasoning of the respondent's expert, Mr Law, on valuation to that of Mr Roberts. He therefore found that the car would only command a salvage valuation in the region of £8,500 [159], [166]. Given this conclusion, the judge held that the respondent's remedy under the 2015 Act ought to be the final right to reject, with the return of the purchase price [168]–[173], subject to a...
To continue reading
Request your trial
-
Andrew McCarthy v William Allan Jones
...or a contract.” 20 Those principles have since been applied by this court in other cases: Kynaston-Mainwaring v GVE London Ltd [2022] EWCA Civ 1339; Re T (Fact-Finding: Second Appeal) [2023] EWCA Civ 21 Mr Sims KC pointed to a number of features in the language of the email itself and in ......
-
Darty Holdings SAS v Geoffrey Carton-Kelly (as additional liquidator of CGL Realisations Ltd)
...Civ 589 at [18] and [19]. Those principles have since been applied by this court in other cases: Kynaston-Mainwaring v GVE London Ltd [2022] EWCA Civ 1339; Deutsche Bank AG v Sebastian Holdings Inc [2023] EWCA Civ 191; Re T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475. The only poin......