Egan v Motor Services (Bath) Ltd (Note)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lady Justice Arden,Lord Justice Ward |
| Judgment Date | 18 October 2007 |
| Neutral Citation | [2007] EWCA Civ 1002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2007/0034 |
| Date | 18 October 2007 |
[2007] EWCA Civ 1002
Lord Justice Ward
Lady Justice Arden and
Lady Justice Smith
Case No: B2/2007/0034
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Bristol County Court
HHJ Rutherford DL
5BS04618
Royal Courts of Justice
Strand, London, WC2A 2LL
Gerard McMeel (instructed by Greenwoods) for the Appellant
Louis Weston (instructed by Withy King) for the Respondent
Hearing date: 3 October 2007
Judgement
Introduction
This is the appeal of Darren Egan, brought with the permission of the Rt. Hon. Sir Henry Brooke, against the order made by His Honour Judge Rutherford DL dated 2 January 2007, in which he dismissed the appellant's claim against the respondent, Motor Services (Bath) Ltd.
The appellant took delivery of a brand new Audi motor car from the respondent in March 2004. The following month, he tried to reject it on the ground that it was unsatisfactory. The respondent refused to accept the rejection and, in due course, the appellant sued for the return of the purchase price and damages. His claim failed because the judge held that there had been nothing wrong with the Audi and the appellant had not been entitled to reject it.
The History
In July 2003, the appellant agreed to purchase an Audi TT 3.2 litre V6 motor car from the respondent for £32, 300. The car was supplied on 5 March 2004. He soon formed the view that the steering was unsatisfactory, that the vehicle veered to the left when being driven at speed and was therefore unsafe. He complained about this to the respondent. During March and April, two of the respondent's employees test drove the vehicle. Mr Simon Woollard, a technician, drove it on 2 nd April and Mr Peter Nicholls, the Operations Director, drove it on or about 12 April. They formed the view that the car handled normally. However the respondent made various adjustments to the tracking of the front wheels and supplied a new set of tyres. At the trial there was a dispute as to whether the respondent had ever accepted that the steering was unsatisfactory. The appellant claimed that Mr Woollard had agreed that there was a problem. The respondent said that it had not; it had merely made adjustments in an attempt to satisfy its customer.
The appellant remained dissatisfied. He returned the vehicle to the respondent on 24 April. On the following day, after test driving two similar vehicles and finding them satisfactory, he wrote to the respondent rejecting the vehicle and requesting a replacement car of the same description. The respondent did not reply and on 1 May, the appellant asked for return of the purchase price. On 6 May, Mr Steve Grigg, the respondent's Brand Manager, replied. He said that the respondent did not accept that there was anything wrong with the steering or suspension of the vehicle. The respondent had undertaken three full 'geometry/alignment checks', all of which had demonstrated that the settings were 'well within the manufacturer's tolerances and specifications'. These tests had been carried out on Audi approved equipment which was fully calibrated. Moreover, a full geometry check had been carried out at an Audi centre independent of the respondent. (I interpose to say that, at the trial, the respondent accepted that the rear wheel alignment readings were not within the manufacturer's specification, although the front wheels were. It contended that the equipment on which the tests had been carried out was unsuitable for testing the particular model concerned, which was new, and that the results were unreliable.)
Mr Grigg went on to say that, in view of the ongoing dispute, he proposed to arrange a full AA inspection of the car's steering and suspension system, which would be viewed as completely independent and 'arbitory' (sic). As I understand this expression, Mr Grigg was saying that this test would settle the dispute. Mr Grigg also said that he had arranged a test drive by an Audi UK representative on 12 May. In the event, the respondent did not arrange for an inspection by the AA or by any other independent person. The test drive took place on 12 May and the driver, Mr Kevin Parry, found that the vehicle handled normally. He noted that when he took his hands off the wheel completely, the car drifted slightly to the left. This he considered was normal on most vehicles.
Disappointed with the respondent's failure to arrange an AA inspection, the appellant arranged one himself. On 18 May, the vehicle was inspected at the respondent's premises by Mr A Sanders MSOE MIRTE of Automobile Association Car Inspections. Mr Grigg was present. The appellant and Mr Sanders then took the car out for a test drive but it appears that Mr Grigg did not accompany them. Mr Sanders' hand written report stated that the vehicle handled satisfactorily, except that a drift to the left was exhibited. This was more apparent at higher speeds. The report stated that the test had been conducted on roads with different cambers. Where the camber was to the left, the car drifted to the left but where the camber was to the right, the car went straight ahead. The report said that the cause of 'this' was not investigated but it was advised that an independent full alignment check should be carried out and 'further investigation as highlighted by these findings'. A copy of this report was left with Mr Grigg that day.
The parties remained in dispute. The car remained at the respondent's premises. On 25 th October 2004, Mr Sanders provided an addendum to his report. He stated that, in his opinion:
“the vehicle exhibited what I believe was an uncharacteristic drift to the left. The handling characteristic exhibited by this vehicle, in my opinion, was considered to be uncharacteristic and unacceptable for this particular vehicle considering its age and recorded mileage.”
The recorded mileage at the time was about 1300 miles.
In November 2004, the respondent obtained some new equipment for the testing of wheel alignment. It carried out more tests on the car and concluded that the wheel alignment was within the manufacturer's specification. The results of these tests were not communicated to the appellant. They were disclosed in the course of the subsequent proceedings.
On 19 January 2005, Mr Andrew Clarke, a Technical Support Engineer for Audi UK Ltd, test drove the car. He drove the car at 40 mph on a road with varying camber. He reported that, when he took his hands off the steering wheel, the car drifted in the direction of the camber. This effect could be corrected by keeping one finger on the steering wheel. He expressed the opinion that the car was operating correctly and as the manufacturer intended.
The Proceedings
The parties' positions had become entrenched and proceedings were begun in the Bristol County Court in April 2005. The particulars of claim alleged a breach of the implied condition (pursuant to section 14 of the Sale of Goods Act 1979, as amended) that the car should be of satisfactory quality. The claim was for the return of the purchase price plus various incidental expenses which together came to about £35,000. Since the proceedings, the car has been returned to the appellant, who has sold it. The amount now in issue in this appeal is very modest, being limited to the difference between the purchase price and the second hand sale price, together with the incidental expenses. We were told that only about £6,000 is at stake.
The defence denied that the car was of unsatisfactory quality or was in any way defective. The car had been tested and had been found to be set up within the appropriate engineering tolerances. The buyer was not entitled to reject it.
At a case management conference in October 2005, the action was allocated to the multitrack and the parties were given permission to rely on the evidence of experts whose reports had already been obtained. Disclosure was ordered. The appellant's expert was to be Dr Graham and the respondent's was Mr Timbrell of HJ Wiltshire & Son. Later, in February 2006, the respondent obtained permission to rely on a different expert, Mr PJ Childs. As part of his consideration of the case, Mr Childs drove the car in early 2006. He expressed the view that the car handled in a normal way and drifted slightly to one side or the other, following the camber, only if the driver took his hands off the steering wheel. Dr Graham did not drive the car at all. His evidence related mainly to the data derived from the wheel alignment tests and the question of whether the settings were within the manufacturer's specification.
The hearing began on 26 April 2006. The claimant and Mr Sanders gave evidence; so did Mr Parry and Mr Nicholls on behalf of the respondent. The witness statement of Mr Clarke was unchallenged and was received in writing. Thus, the appellant had accepted that the car was handling normally at the time of his test drive in January 2005. This acceptance was, in turn, based upon Dr Graham's acceptance that the data from the tests carried out in November 2004, on the new testing equipment, showed that, at that time, the settings were within specification. He was therefore content to accept that the car would at that time and thereafter handle in a normal way. Thus, the appellant also accepted Mr Child's opinion that the car had handled normally when he drove it in early 2006. It was the appellant's contention that the alignments had been secretly adjusted between April (when the tests were 'out of specification') and November (when they were 'in specification').
Dr Graham and Mr Childs gave...
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