Dealership seeking to overturn sheriff’s order for proof in consumer rights case loses Sheriff Appeal Court challenge

About this case:

• Citation:
  [2022] SAC (Civ) 18
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Parks of Hamilton (Townsend Garage) Ltd sold the £141,000 Bentley Bentayga to respondent Elizabeth Deas in February 2020. The respondent sought to exercise her right under section 24 of the Consumer Rights Act 2015 to reject the vehicle after she alleged that the appellant had incorrectly fitted a towbar to it. 

The appeal was heard by Sheriff Principal Aisha Anwar. Tosh, advocate, appeared for the appellant and Oliver, advocate, for the respondent. 

No higher than 420mm

It was the respondent’s position that she had made it known to the appellant that she required a retractable towbar to be fitted to the vehicle for the purpose of towing a caravan. However, the appellant had fitted the towbar with a height in operation of 500mm, which made it too high to be able to be used for that purpose. In addition to repayment of the purchase price the respondent sought payment of £3,000 in respect of loss and enjoyment of the vehicle. 

The appellant had challenged the relevancy and specification of a number of the respondent’s averments, including that any car supplied to tow a caravan must be fitted with a towbar no higher than 420mm in operation. It argued that the sheriff had erred in holding that this averment was suitable for inquiry, along with her averments seeking to support the claim for damages. 

Counsel for the appellant submitted that the respondent had failed to explain why the height of the towbar rendered it unsuitable to tow a caravan, as she had not raised a case under EU Directive 94/20/EC, which specified 420mm as the maximum height in operation. Absent any explanation, the respondent’s averments were so lacking in specification as to be irrelevant. In relation to the second ground of appeal, it was submitted the respondent had failed to give fair notice of the nature and extent of the loss or how it was quantified. 

For the respondent it was submitted that the appellant was a national car retailer that operated at least one Bentley dealership and did not require the same degree of specification that would be required by someone outwith the industry. In respect of the damages claim, the loss of use was clearly the inability to tow a caravan, and the intention was to compensate the respondent for the inconvenience caused by not having a vehicle able to perform the full recreational use she had bargained for. 

Straightforward claim 

In her decision, Sheriff Principal Anwar observed: “The respondent’s pleadings are undoubtedly inelegantly, perhaps even clumsily, expressed. The first averment is general in nature; the second is specific to what are said to be the facts of this case. On a broad reading [however], the material fact which the respondent offers to prove is tolerably clear, and correctly identified by the sheriff, namely that the towbar fitted to the vehicle has a height in operation of 500mm rendering it unfit for the purpose of towing a caravan. The second averment is sufficiently specific to merit enquiry at proof before answer.” 

She continued: “The present case is a straightforward, simple consumer claim, made complicated by the manner of pleading. The appellant can be taken to readily understand that which it has chosen to investigate, that upon which it has sought the opinion of an expert and that which it has chosen to aver in its answers. Viewed from that perspective, it cannot legitimately be said that the respondent has failed to aver her case with sufficient clarity and precision to allow the appellant to understand the case made against it.” 

Addressing the second ground of appeal, Sheriff Principal Anwar said: “At debate, the appellant had argued that this averment was so lacking in material specification that it was irrelevant; the respondent had failed to give fair notice of the amount claimed and the basis of quantification. It would appear that the sheriff had failed to address this attack on the respondent’s averments. While this is regrettable, in light of the plethora of pleadings points the sheriff had been asked to determine, the oversight is understandable.” 

She concluded: “Quantification of the loss may not be capable of being precisely averred; claims for damages arising from the loss of use of amenity in consumer contracts are often stated in general terms. The courts are well accustomed in such cases to putting figures to intangibles in such low value straightforward claims. Counsel for the respondent submitted that what level of damages might be awarded was a mixed issue of fact and law. I agree.” 

The appeal was therefore refused, with the case remitted to the sheriff to proceed as accords.