David Douglas V. Glenvarigill Company Limited
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Neutral Citation | [2010] CSOH 14 |
| Court | Court of Session |
| Published date | 05 February 2010 |
| Year | 2010 |
| Docket Number | CA102/08 |
| Date | 05 February 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 14 | |
| CA102/08 | OPINION OF LORD DRUMMOND YOUNG in the cause DAVID DOUGLAS Pursuer; against GLENVARIGILL COMPANY LIMITED Defenders: ________________ |
Pursuer: Clark, QC; Balfour + Manson
Defender: Gillies, Solicitor; McGrigors
5 February 2010
[1] On 29 November 2004 the pursuer agreed to purchase an Audi car from the defenders, who then traded as Edinburgh Audi. The price agreed for the car, an Audi A4 Avant 54Q, was £41,050, and a deposit of £2,000 was paid on that date. The car was delivered on 22 February 2005, on which date the balance of the price was paid. It is a matter of agreement of the car was purchased by the pursuer for his own individual ownership and use, and that the defenders were acting in the course of a business.
[2] The car subsequently developed faults, and on 14 June 2007 the pursuer purported to reject it on account of material breach of contract on the part of the defenders. The defenders did not accept such rejection, and the pursuer has raised the present action for declarator that he was entitled to reject the car. He further seeks repayment of the price paid by him, £41,050 and payment of a further sum of £15,000 by way of damages for the loss that he claims to have suffered as a result of the defenders' breach of contract. In the alternative, on the hypothesis that the car had not been validly rejected, the pursuer concludes for payment of £25,000 by way of damages for the defenders' breach of contract. Following certain procedure involving a third party, the action proceeded to proof before answer.
Evidence of fact
[3] At the proof the history of events following delivery of the car was not significantly in dispute. Evidence on the matter was given by the pursuer and his wife, and was not seriously challenged. Although both witnesses were at times somewhat vague or inconsistent, the picture of events that emerged was generally clear. From an early stage intermittent problems were encountered; in particular, the car would not start in the morning, and either the garage or the AA was asked to deal with the problem. Nothing major occurred, however. A major problem first appeared in about March 2006. At that time the pursuer and his father-in-law were driving to Skye when the engine management system cut in, slowing the car to approximately 30 mph. The pursuer switched the car off and attempted to restart it, but failed to do so. Eventually it was possible to move the car, but it would not travel at more than 30 to 35 mph. The following morning, however, the car restarted and appeared to operate normally. One of the expert witnesses, Mr Bathgate, explained that the electronic system in the car rebooted when it was switched on; he thought that this would in most cases have corrected the fault that had occurred. A short time afterwards, in April or May 2006, when the car was travelling at speed on the motorway between Edinburgh and Glasgow at approximately 70 mph, the engine management system cut in and rapidly slowed the car down to approximately 30 mph. This caused the pursuer and his wife great concern, for obvious reasons; the pursuer described the experience as "quite frightening" and his wife as "quite scary". Other problems of a lesser nature were encountered. The windows operated erratically and lights would come on for no reason. Somewhat more seriously, on occasion the automatic transmission would not move out of first gear; when the latter problem occurred it could be corrected by switching the engine off and then on again. The car was not in fact used a great deal by the pursuer and his wife; it was their third car, and it travelled slightly in excess of 2,000 miles in the first year of their ownership.
[4] The pursuer did not know the cause of the faults that had occurred, and in May 2006 he took the car to Edinburgh Audi to discover what was wrong. The car remained with Edinburgh Audi until December 2006, a delay that can only be described as extraordinary. The pursuer sought information as to what was wrong and what was being done to the car, but failed to obtain any proper information. In September 2006 he was told that the car had been repaired and was ready for use. When he collected it, however, it broke down on the way to his home. Consequently it was taken back to Edinburgh Audi. In November 2006 the pursuer spoke at some length to Mr Farrell, the garage manager for Edinburgh Audi. He was informed that during the period when the car was in the garage a number of parts had been replaced and the engine had been stripped down. He was also told that the work had been carried out by an incompetent operative who had been dismissed. The pursuer stated that he wished to reject the vehicle, and in subsequent telephone conversations on 20 and 21 November 2006 he repeated that he did not want the car back. Mr Farrell's response, confirmed in a letter of 22 November (no 6/2 of process), comprised three offers. The first was to replace the car in return for payment by the pursuer of approximately £15,800; that sum was designed to represent the fact that the car sold to the pursuer was no longer new. The second offer was to replace the car with a car of similar age, mileage and specification at "minimal" cost to the pursuer. The third offer was that, if the pursuer accepted return of the car following road testing, he would be given a guarantee that any repeat of the problems with the performance of the car within one month of return would instigate a like-for-like vehicle replacement. These offers were not acceptable to the pursuer. Edinburgh Audi refused to retain the vehicle and dropped it off at the pursuer's house in December 2006. When the car was returned Mr Farrell wrote to the pursuer (letter of 5 December, no 7/4 of process) to state that it had been repaired and extensively road tested, and that the faults had been rectified. Nevertheless the pursuer was not given any specific information as to what had been wrong.
[5] After the return of the car in December it was little used, and the first significant trip was to Paisley in February 2007. On this occasion the pursuer's wife was driving. The car shuddered and almost stopped; it lost power and the automatic gear system dropped to first gear. The pursuer stated that this was exactly the same problem as had been encountered previously. On 23 February the car was returned to the garage (warranty invoice no 7/8 of process). At that point Edinburgh Audi said that nothing was wrong, and the car was returned to the pursuer. The car was returned to the garage on 21 March (warranty invoice no 7/9 of process) for replacement of keys; the keys had not been working properly in the locks, and problems had occurred with the doors and windows. On 4 April the car would not start and experienced electrical problems; the RAC could not fix it, and it was towed into the garage once again. Thereafter Edinburgh Audi informed the pursuer that the vehicle was in working order. Following a telephone call on 17 April Mrs Douglas intimated that she was not willing to accept the car. On 7 May Mr Farrell wrote to the pursuer and his wife (no 6/3 of process) to state that Edinburgh Audi had been unable to find a fault and that they were unwilling to store the car. The car would therefore be delivered to the pursuer on 10 May, and if it was not accepted a storage charge of £50 per day would be imposed. The car was accordingly taken back by the pursuer, but on 29 May Edinburgh Audi agreed to examine it at the pursuer's house and found problems with it, as a result of which they replaced the battery. Thereafter, on 14 June, the pursuer through his solicitors formally rejected the car.
[6] On 1 September 2006 during the time when the car was in the garage for investigation, the business of Edinburgh Audi was sold by the defenders to another company, Lomond Motors (East) Ltd, who were thereafter responsible for all repair work on the car. Nevertheless, Lomond had not sold the car, and they refuse to accept responsibility for any defects in it. Consequently the present action is brought against the original sellers.
[7] Before I leave the evidence of fact, I should record that the defenders lodged witness statements from four individuals, Mr Joe Farrell, who had been Head of Business of Edinburgh Audi from 2003 until 2007, Mrs Janice Carse, who at the relevant time had been Customer Care Manager at Edinburgh Audi, Mr Geoffrey Hunt, who was employed by Volkswagen Group UK Ltd, who explained the Audi warranty scheme, and Mr Kevin Lamb, who is the sole remaining director of the defenders. None of these documents was sworn, and none of those who made statements was available for cross-examination. In these circumstances I am of opinion that the statements can be given little weight. In any event, I did not find that they added anything of value to the other evidence. The main passage in Mr Farrell's statement that was relied on by the defenders related to his letter of 22 November 2006, and I do not think that it adds anything to the substance of the document. Mrs Carse referred to events at about the same time, to the existence of a warranty and to the difficulty in dealing with intermittent faults. I do not think that what she said added anything to the evidence of Mr and Mrs Douglas and the documentary evidence, and what she said about intermittent faults is no more than the obvious. Mr Hunt referred to the warranty invoices that came from Volkswagen Group UK, which were in any event agreed. Mr Lamb referred to the sale of the Edinburgh Audi business by the defenders to Lomond and to the commercial problems that would arise were it possible for the buyer of a vehicle to reject it 15 months after delivery. Any such commercial difficulties are clearly important in any consideration of the reform of the law (although the seller would in most cases have a remedy against the...
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