Legal advice - rad

[gorillaonabik...]

My rad blew on my bike. It is a new rad, 9 months old - March of last year and the main dealer has been excellent - very supportive as they have rounded up a courtesy bike for me, helped me get home and did the little things like offer me a coffee when I was soaking wet. They went the extra mile, even before I'd committed to getting the rad replaced.

However, the manufacturer (big motorbike company) has told me the rad is 9 months old and out of warranty (6 months). Therefore, I can pay for it myself.

Naturally, my plan is to take them to a small claims court. The law is clear. If I can prove it is a manufacturing defect, I can have the item replaced within a 2 year period. The dealer tells me it is clearly a defect, the area damaged is behind the radiator so it is not a stone that has been thrown up by the front wheel and the radiator core failed. In addition, there are no outward visible signs of damage.

However, have never been to a small claims court so does anyone have any experience of this and can advise what to expect?
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FZR400 (blown engine), ZXR750 (blown engine), ZX6R (accident), CBR600 which had engine issues after which I learned to change gear..., CBR900, CBR924 (stolen), CB600, CB1300 (everything blew up), BMW K1300GT (written off, hit from rear while stationary), Bandit 1250 for a couple of months, Triumph Sprint ST 1050 (nicked) and somewhere in there, I wrote off a Ducati 748 at Cadwell.

[Rogerborg]

I can only tell you that I didn't make it to the Scotch Sheriff court, as the defendant folded and agreed to pay up literally the night before.

What I did was go to an independent garage and get an estimate for the time and money to source the parts and sort the problem - a sticky clutch.

I sent that to the selling dealer and to the manufacturer, inviting either of them to do the work themselves within two weeks, or I'd get it done at the other garage and bill them.

Both of them ignored it, as they'd been shrugging and saying "2 1/2 years old, out of warranty, not our problem" up to then.

I got the work done, and then sent them both an invoice (referencing each other) requiring payment within 2 weeks.

Both ignored it.

I then sent a notice before action, again to both of them telling them that I may file a small court action against either of them for the value of the invoice, and start adding on costs, if I didn't receive payment in full within another 2 weeks.

Both ignored it.

I then filed a case against the manufacturer - having to pick one, I went for the deeper pockets. Back then, that was a trip to the court to fill in a bunch of paperwork and pay a fee. In Englandandwales, you can now do it online.

They ignored it, as far as I knew.

Some months () later, on the night before the case, sometime after 5pm, I got a call from their solicitors. After I explained what I'd done and what I'd be presenting in court the next day, they agreed to pay the full value of the invoice plus the court filing fees and my posting costs, by cheque, within 5 days, and they did so.

Today, I'd want that in an email or immediate payment. I was a bit trusting, but it worked out OK. It was quite civilised, they were actually fairly cheery and I reckon had no intention of even showing up, they were just checking that I was going to show and not come across as a mong or nutter and therefore win by default.

I warn you that it's a long process and takes some time. You definitely want them to settle out of court, because getting a judgement is only the start of yet another process to actually wring money out of them. I probably made a mistake going after the English based manufacturer in a Scotch court, as that would have complicated the recovery procedure. I'm actually a little surprised that the Sheriff Court accepted the case, now that I've belatedly read the procedure on it, but a win is a win.

tl;dr - get an independent written opinion, keep records, do everything in writing, be polite but firm, be prepared for a long siege.
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Biking is 1/20th as dangerous as horse riding.
GONE: HN125-8, LF-250B, GPz 305, GPZ 500S, Burgman 400 // RIDING: F650GS (800 twin), Royal Enfield Bullet Electra 500 AVL, Ninja 250R because racebike

[...]

Pretty sure most items are covered by a mandatory 2-year warranty now. Apple got stung for saying the warranty was only a year long when in fact consumers were legally covered for 2 years post purchase.

I'm not sure if it applies to vehicles/vehicle parts, but you might want to look that up. With your dealer's opinion that the damage was not from the front of the radiator I'd say you have a good argument.

[bezzabsa]

so is the Rad the original??? and is this a NEW bike (9months)??
if so I'd say they're pulling the proverbial!!!!

[gorillaonabik...]

[Derek1943]

Hi

Your contact was with the garage that you paid for supplying and doing the repair therefore you cannot sue the manufacturer as you would need to sue for breach of contract and you do not have a contract with the manufacturer.
The manufacturer does have a duty of care but I think the sensible avenue is to write, by recorded post, to the garage given them 10 working days in which to respond. State clearly that after taking legal advice I am informed that the supplying garage is liable for the cost of repairs as it is clear the part you supplied and fitted was not fit for it purpose as required under the Sale of Goods Act 1979.
Failure to confirm in writing to me that you will rectify the fault at your cost will result in my issueing a summons in my local County Court. If this becomes necessary I will also seek compensation resulting from loss of use and other expenses incurred by me including my legal costs.

Head your letter with “without prejudice” which basically means the contents of the letter cannot be used in court so it will not restrict the amount of a final claim.

I am sure this letter will do the trick but if not it is very easy to issue a summons in your local county court and if you are required to do so I will tell you how.

I have many years ago studied the Law of Contract and I just mention this not to be big headed but to stop a few that think they know from clouding the waters.

Derek

[pdg]

To add to the above from Derek...

The '2 year warranty' that gets thrown about is an EU ruling, not a UK one (although, it wouldn't hurt).

Under UK sale of goods act, there is no set limit of 2 years, or even 5 years, or 7 years... It is the amount of time the product could be reasonably expected to last.

Is it reasonable to expect a relatively simple piece of equipment, i.e. a radiator, to last more than 9 months? I'd say most certainly.

As I very recently confirmed, the manufacturer themselves have absolutely no compulsion to offer any warranty or guarantee at all unless you purchase the item directly with them - as has been stated previously any warranty/guarantee is a contract and you hold no contract with the manufacturer.
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Any and all advice given should not be followed - if you have to ask it means you don't know so get a man in to do it for you.

[Derek1943]

Hi PDG

Correct

Derek

[Rogerborg]

I'll note that while I do agree with the above, there's a pragmatic consideration of who has deeper pockets and is more likely to pay out.

While going after the "manufacturer" (UK importer, really) did work out for me, it was with hindsight the wrong decision, and knowing what I know now, I'd go after the retail seller.

[lihp]

To follow on from Rogers point.

Reading the thread with regards to Rikki and his shocking rusty service from VICTOR DEVINE MOTORCYCLES often the retailer isn't willing to play ball, and will point blank refuse to follow law.

While the manufacturer has more of an interest to protect a brand than a retailer does.
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covent.gardens: lihp is my most favourite member ever

[Derek1943]

Hi

You can only sue to Company you bought the goods or services from.

If after your letter to the garage you can then have the bike repaired elsewhere and claim the cost from the original garage. The above two posts are just a little off the mark but not totally.

All claims must be for ones damages and it is clear the damage is not the cost you paid the original garage but the cost to put your bike in the condition it should have been following the original repair.

Here is an easy example. You agree to repair my bike for £50 and I agree. (Area of law offer and acceptance). You either refuse to complete the repair or as above you use faulty materials. My cost and therefore damages are the cost required by me to be in the position I would have been had you not breached the contract.

Before actually taking out a summons it is wise to check if the other side has the means to pay if you are sure they do the cost of the summons is added to the amount you claim. It will never go all the way to court if you are in the right as it will only add cost and stress and is likely to damage their reputation.


As said before time has no bearing whatsoever in law. The manufacturer cannot limit the period of time. Therefore the garage claiming a period of six months would not count one bit if the case came before the court (Judge). Terms and condition cannot write out statutory law and therefore the garage can say what they want as to how long a period they would repair or not repair but under the Sale of Goods act an item or a repair must fit for its purpose and of merchantable quality. Therefore the question would be should the item have lasted longer or not. The garage have told you it should therefore end of message. The garage are in breach of contract.

Derek