I've been giving this some further thought today, and I have a bad feeling about Ellie's position.
I should start with a disclaimer that I'm not legally qualified and the opinions I am expressing should not be construed by anyone as advice on how to proceed.
With that out of the way, I'll begin.
I don't think anyone is questioning that Ellie is the innocent victim of whatever has happened here. Sadly being an innocent victim will not, in itself, get her any kind of redress, compensation or resolution.
I'd agree. If no MIAFTR entry has been made in respect of this vehicle (and unless there has been a gross clerical error, it hasn't or it would show up on an HPI check), then it will not be regarded in law as a written off vehicle. IMO Ellie's letter from Fiat does nothing to alter that - they simply chose to sell a damaged vehicle rather than to repair it.
In view of this, it is my opinion that any legal claim based on being sold an undisclosed written off vehicle will fail, since Ellie's car has not in law been written off. There is no legal obligation on any seller, whether trade or private, to disclose repaired unrecorded accident damage (unless specifically asked), providing the vehicle is roadworthy and fit for purpose.
It's also my opinion that, if Ellie wants to get redress through the legal system, she will need evidence that the car was not fit for purpose at the time it was originally sold. Fleet Car Sales will likely say that the combination of the fresh MOT certificate, the clear HPI check and the fact that Ellie has been driving around in the car for months is sufficient evidence that the car was fit for purpose when sold to her. In the absence of any other evidence to the contrary, I doubt that a Court would be able to find in Ellie's favour.
Ellie could challenge this by getting an independent engineer's report on the car (and in this context, I do not think that Fiat Aldershot would be considered independent). If she can get an independent engineer to say in writing that, on balance of probability, the failure of the engine mounting was a direct result of a botched accident repair, then I think she'd have a good legal case to claim for the full cost of repairing the car. If she could additionally get an independent engineer to say that, on balance of probability, the car was so badly repaired that it was unfit for purpose at the time of original sale, then she could also reject the car and get most of her money back. If her claim is successful, she can also claim back the cost of the independent engineer's report.
I'd agree. I like pragmatism.
Ellie could complain to the selling dealer, the finance company, and the credit card company.
Unfortunately I think whoever Ellie complains to will first ask Fleet Car Sales for their side of the story, which is that she bought a used car with a fresh MOT & clear HPI check and no warranty. Without additional evidence of a botched repair, I doubt they'd take it any further.
OTOH, if Fiat are concerned about the consequences of having sold unrecorded salvage (and we still don't know for sure this is what has happened), then they just might make a gesture to get this sorted out.
One way they could do this is if Fiat were to settle Ellie's finance agreement and take back the car, in exchange for Ellie taking out a new Fiat pcp on a brand new 500. Fiat could then dispose of Ellie's old car, hopefully in an appropriate way. This would leave Ellie with a new car for a monthly payment which hopefully would not be much more than she is paying now, and IMO this would also be very good publicity for Fiat.
I'd stress, though, that Fiat have absolutely no legal obligation whatsoever to Ellie - she has no Contract with them, so this would all have to be done on the basis of goodwill.
A final thought when considering the path to take is that you not only have to win your case, you also have to get the money. It might be worth remembering that the price Ellie paid for the car may be more than the total net worth of Fleet Car Sales.
Quite a few rental companies and large fleet users self insure their fleets against first party risks; it's not that unusual.
The ABI Code of Practice for the Disposal of Motor Vehicle Salvage is voluntary; whilst almost all insurance companies have signed up to it, some large fleet users who self insure have not and there is nothing in law to prevent them from selling unrecorded salvage. They have a short term financial incentive to do so; unrecorded salvage will likely command a significantly higher price, because it can be repaired and sold on with no legal requirement of disclosure and a clean HPI certificate.
There is an interesting article on this very subject here.
Finally, and I'm addressing this specifically to Ellie, none of this is a substitute for getting proper independent professional advice, and your plan to seek this next week is a very good one. I sincerely hope that you are able to find a resolution to the problems you are having with your car.
I should start with a disclaimer that I'm not legally qualified and the opinions I am expressing should not be construed by anyone as advice on how to proceed.
With that out of the way, I'll begin.
Ellie has bought a 500 which has turned out to be a lemon. It is not her fault...
I don't think anyone is questioning that Ellie is the innocent victim of whatever has happened here. Sadly being an innocent victim will not, in itself, get her any kind of redress, compensation or resolution.
Question is then who has 'written off' the vehicle. As far as I'm concerned, and potentially legally, if it's not an insurance company then it's not technically written off. In which case Fiat might be on dodgy ground in saying that it has.
I'd agree. If no MIAFTR entry has been made in respect of this vehicle (and unless there has been a gross clerical error, it hasn't or it would show up on an HPI check), then it will not be regarded in law as a written off vehicle. IMO Ellie's letter from Fiat does nothing to alter that - they simply chose to sell a damaged vehicle rather than to repair it.
In view of this, it is my opinion that any legal claim based on being sold an undisclosed written off vehicle will fail, since Ellie's car has not in law been written off. There is no legal obligation on any seller, whether trade or private, to disclose repaired unrecorded accident damage (unless specifically asked), providing the vehicle is roadworthy and fit for purpose.
It's also my opinion that, if Ellie wants to get redress through the legal system, she will need evidence that the car was not fit for purpose at the time it was originally sold. Fleet Car Sales will likely say that the combination of the fresh MOT certificate, the clear HPI check and the fact that Ellie has been driving around in the car for months is sufficient evidence that the car was fit for purpose when sold to her. In the absence of any other evidence to the contrary, I doubt that a Court would be able to find in Ellie's favour.
Ellie could challenge this by getting an independent engineer's report on the car (and in this context, I do not think that Fiat Aldershot would be considered independent). If she can get an independent engineer to say in writing that, on balance of probability, the failure of the engine mounting was a direct result of a botched accident repair, then I think she'd have a good legal case to claim for the full cost of repairing the car. If she could additionally get an independent engineer to say that, on balance of probability, the car was so badly repaired that it was unfit for purpose at the time of original sale, then she could also reject the car and get most of her money back. If her claim is successful, she can also claim back the cost of the independent engineer's report.
... my motto is "find the path of least resistance" ...
I'd agree. I like pragmatism.
Ellie could complain to the selling dealer, the finance company, and the credit card company.
Unfortunately I think whoever Ellie complains to will first ask Fleet Car Sales for their side of the story, which is that she bought a used car with a fresh MOT & clear HPI check and no warranty. Without additional evidence of a botched repair, I doubt they'd take it any further.
OTOH, if Fiat are concerned about the consequences of having sold unrecorded salvage (and we still don't know for sure this is what has happened), then they just might make a gesture to get this sorted out.
One way they could do this is if Fiat were to settle Ellie's finance agreement and take back the car, in exchange for Ellie taking out a new Fiat pcp on a brand new 500. Fiat could then dispose of Ellie's old car, hopefully in an appropriate way. This would leave Ellie with a new car for a monthly payment which hopefully would not be much more than she is paying now, and IMO this would also be very good publicity for Fiat.
I'd stress, though, that Fiat have absolutely no legal obligation whatsoever to Ellie - she has no Contract with them, so this would all have to be done on the basis of goodwill.
A final thought when considering the path to take is that you not only have to win your case, you also have to get the money. It might be worth remembering that the price Ellie paid for the car may be more than the total net worth of Fleet Car Sales.
So how do these come about then? As if subject to an insurance claim they're either repaired or written off. Or are there lots of people taking massive losses having insured their newish cars third party only
Quite a few rental companies and large fleet users self insure their fleets against first party risks; it's not that unusual.
The ABI Code of Practice for the Disposal of Motor Vehicle Salvage is voluntary; whilst almost all insurance companies have signed up to it, some large fleet users who self insure have not and there is nothing in law to prevent them from selling unrecorded salvage. They have a short term financial incentive to do so; unrecorded salvage will likely command a significantly higher price, because it can be repaired and sold on with no legal requirement of disclosure and a clean HPI certificate.
There is an interesting article on this very subject here.
Finally, and I'm addressing this specifically to Ellie, none of this is a substitute for getting proper independent professional advice, and your plan to seek this next week is a very good one. I sincerely hope that you are able to find a resolution to the problems you are having with your car.
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