Court dismisses consumer appeal finding no latent defect and upholding manufacturer warranty exclusions.

THE CIRCUIT COURT AN CHÚIRT CHUARDA

Record No: 2019/05214 Neutral Citation: [2024] IECC 2

DUBLIN CIRCUIT CIVIL COURT COUNTY OF THE CITY OF DUBLIN DISTRICT COURT APPEAL

IN THE MATTER OF

GILLIAN O’CONNOR

Appellant

And

KARL GOODWIN MOTORS LIMITED, KILDARE CAR OUTLET LIMITED TRADING AS N. CONLON & SONS, LAND ROVER IRELAND LIMITED AND JAGUAR LAND ROVER IRELAND LIMITED Defendants

Judgment of Her Honour Judge Jennifer O’Brien delivered this 22nd day of April 2024

Issue under consideration: The issue that arises for consideration in this case - What is the legislative and legal paradigm into which one steps when purchasing a second-hand vehicle from Dealer A while it is still under warranty from the manufacturer and, a defect emerges within 6 months? When is a defect considered latent? Is the product merchantable at the time of purchase? What are the rights and obligations of the purchaser/ dealer in these circumstances vis á vis Dealer A, Dealer B (the manufacturer’s agent) and vis á vis the manufacturer? What are the obligations of each party in contract, under the consumer regulations and are there any additional considerations in tort? Was there any delay on the part of Dealer A or Dealer B or the manufacturer in carrying out repairs to the vehicle? What is considered reasonable in this context for the purpose of compliance with the manufacturer’s warranty? For a car imported from the UK - which warranty applies? Is the purchaser entitled to recover the cost of a service and the cost of an expert, where she chose to take each of these steps of her own volition? Is the purchaser entitled to damages for loss of use of the vehicle for a ten-day period when the car was being repaired, in circumstances where Dealer B had furnished a courtesy car, albeit same was not an equivalent make or model? Is the purchaser entitled to damages for breach of contract, breach of consumer rights and/ or alleged negligence of the defendants in addressing the matter?

Plaintiff’s case: This case comes before the Court by way of appeal from District Court orders, dismissing the plaintiff’s claims. The plaintiff is a solicitor with an address in County Dublin. The first name defendant (“Dealer A”) is a registered company involved in the sale of motor vehicles and operates from Belgard Motor Complex in County Dublin. The second named defendant (“Dealer B”) is a limited liability company involved in the sale and servicing of motor vehicles, operating from Rathangan in County Kildare. The third named defendant (the “Manufacturer”) is a registered company involved in the manufacture of motor vehicles with a registered company address in Dublin. The fourth named defendant is a registered company involved in the importation of motor vehicles and has a registered company address in Dublin.

The plaintiff claims that she is a consumer within the meaning of the Sale of Goods and Supply of Services Acts 1980, as amended. In or about the 13th day of June 2016 the plaintiff attended at the premises of Dealer A and selected a Range Rover Sport Autobiography 5 litre petrol V8, with the car registration number 141-C-xxxx fitted with an automatic transmission (the ‘vehicle’) for the purchase price of €99,950. The plaintiff claims that Dealer A, its servants and/or agents represented or warranted expressly or impliedly that the vehicle was in perfect mechanical order and condition and was free from all defects and was of merchantable quality. It is claimed that the plaintiff entered into an agreement to purchase the vehicle on foot of the said representations and warranties. It is claimed that by virtue of the Sale of Goods and Supply of Services Act 1980 (the “Act of 1980”) that the following were implied conditions/ warranties of the said agreement:

1. Firstly, that the vehicle was of merchantable quality,

2. Secondly that the vehicle was free from any defects.

From time-to-time following purchase of the vehicle, the plaintiff brought the vehicle to the premises of Dealer B in order to carry out repairs and services. It is claimed that Dealer B owed to the plaintiff a duty of care to carry out any repairs or servicing in a competent manner and to use replacement parts in the event that repairs or replacements proved necessary. It is claimed that the conditions were not complied with in the sense that the vehicle supplied was not of a merchantable quality, that it was not fit for the purpose for which goods of that kind are commonly bought, it was not durable and it was reasonable to expect, having regard to the high specification of the vehicle and the price of the vehicle it was not free from any defects. Further, it is claimed that the defendants have breached their duties of care towards the plaintiff in failing to ensure the vehicle was of merchantable quality, failing to ensure the vehicle was free from defects, failing to provide an adequate after sales service for the claimant, carrying out attempts at servicing and repairs of the vehicle so negligently as to cause further damage to the vehicle and failing to provide adequate replacement parts for the vehicle. The plaintiff also claims express or implied breach of warranties in failing to promptly or competently repair the defects in the vehicle, failing to provide an adequate after sales service as particularized and the claimant reserves the right to treat the aforesaid breaches of condition as breaches of warranty.

The plaintiff having taken delivery of the vehicle immediately experienced a number of small issues which had been rectified. A more serious issue developed in November 2016, and it seemed as though the vehicle’s gears and gearbox were not working properly. The plaintiff was obliged to bring the vehicle to Dealer B, a Land Rover repair centre (being an authorized agent of the 3rd and 4th named defendants), in order to comply with the terms and conditions of the warranty. The gears appeared to be continuously slipping resulting in a very bumpy drive. The plaintiff requested a full service of the vehicle which occurred and was paid for by the plaintiff on the 2nd of December 2016. The plaintiff decided to take the vehicle back for the Christmas period and as such further tests were not carried out by Dealer B at that time. At that stage the plaintiff was told the car might need a new gear box and she was advised Land Rover would be consulted under the warranty. Further testing would be required by Land Rover. At this stage, the plaintiff thought it prudent to instruct an independent engineer to be present at the testing of the vehicle with Land Rover. The plaintiff left the vehicle with Dealer B on the 9th of January 2017 and various tests were carried out by their mechanics. The plaintiff claims both she and her engineer were continuously advised that various different problems were the issue with the vehicle including a fault pertaining to the transmission, a fault pertaining to the spark plugs, misfire with the engine, misfire with the number 8 cylinder, fault pertaining to the coils of the engine, fault pertaining to the number 8 fuel injector and fault pertaining to the fuel pipe and injector. Throughout this period from 9th January onwards the plaintiff claims that she received little or no satisfaction from the defendants, their servants or their agents in attempt to repair the vehicle. The vehicle was fully repaired by the 19th of January 2017.

The plaintiff claims that by reason of the defects and the conduct of the defendants in servicing and repair of the vehicle and failure to provide a suitable replacement vehicle when the vehicle was being repaired during a protracted period, the plaintiff suffered substantial inconvenience, loss, damage and expense including the manner in which the 3rd and 4th named defendants have dealt with the plaintiff’s legitimate complaints, in particular and including the nature and content of letters from the 3rd and 4th named defendants dated 10th and 20th February 2017. Furthermore, it is claimed the defendants have failed to furnish the plaintiff with the data in relation to the technical mechanical testing in spite of requesting same directly and through her engineer and have failed to provide an extension of the warranty in relation to the parts replaced in the vehicle. As such, the plaintiff seeks damages and extended warranty for the vehicle.

Each of the defendants have filed a defence containing a denial of the claims made by the plaintiff. This Court heard evidence on the 22nd and 23rd of February 2024. Particulars of loss, damages and inconveniences claimed by the plaintiff are as follows:

1. Loss of use of the motor vehicle for 2 weeks: €1,800 (estimate)

2. Inspection and report fee: €615

3. Service: € 675.30

Summary of evidence: The plaintiff gave evidence that she purchased the Land Rover vehicle from Dealer A in June 2016, and that it was the biggest purchase the plaintiff had ever made. She traded in her old car and also provided a sum from her savings. She experienced some initial difficulties with the sunroof and the heated seat. Dealer B had fixed each of these issues. By mid-November 2016 a problem seemed to have developed with the gears and she described that it felt as though she was driving over potholes. She gave evidence that the fault didn't occur as often when the car was in sports mode. She contacted Dealer B, in mid-November and requested that they carry out a service. She was anxious to get the vehicle checked in light of the fact that the warranty ran out in May of the following year. She was very anxious to ensure that an authorized repairer carried out the work as she did not want to jeopardize being covered by the warranty. She gave evidence that she paid the invoice in respect of the service of the vehicle. She was very worried when she was informed that the difficulty might be on account of a problem with the gearbox. On the 9th of December 2016 she sent an email to Dealer B, and she copied Dealer A into the email. She was unhappy that Dealer B responded stating that she should contact the person who sold her the car. There was a dispute as to whether the car was brought into Dealer B on the 7th of December 2016 or not. The plaintiff gave evidence of her correspondence with Dealer A and Dealer B which took place by email between the 9th, 10th of December 2016 and January 2017.

The car was dropped into Dealer B on the 9th of January 2017 and the plaintiff gave evidence that the work was not completed until the 19th of January. The plaintiff gave evidence that Dealer B, on using an app for the petrol vehicle on Friday the 13th of January 2017 finally discovered that the fault lay with the misfire in the engine. The plaintiff claims this technology should have been used earlier in the process, thereby avoiding the delay in fixing the vehicle. The plaintiff gave evidence that the first named defendant had been unwell in December and had made contact with her by telephone on the 16th of January 2017 saying that he would get her a better replacement car, however she did not hear from him again.

The Court heard evidence on behalf of Dealer A and Dealer B and also on behalf of the 3rd and 4th named defendants. The witnesses for Dealer B brought the Court through the technical assistance document which sets out in some detail the work carried out on the vehicle from the time of Dealer B’s first involvement with same. It is apparent that the plaintiff sought the immediate return of the vehicle in December 2016 and as such Dealer B was not in a position to ascertain the source of the problem. The car was then returned to Dealer B’s garage in January 2017 and certain observations were made regarding the manner in which the vehicle was performing.

It is apparent from the technical assistance document and from the evidence given to Court that further extensive tests were carried out on the vehicle on 10th and 11th of January 2017. On 13th of January the technician replaced the coils and plugs which made no difference to the car. There was a contemporaneous note that the plaintiff’s expert was insisting the difficulty was with the gearbox and as such the technician was seeking a second opinion on the matter. Land Rover technicians sought data log files in order to advise further. By 8am on the 13th of January the technician had isolated the fault and found that it was a misfire on cylinder 8 and he swapped the coil from another cylinder and rechecked the wirings. Going on from that discovery, new parts had to be sourced which took a few days to arrive and were fitted immediately. The file notes and indeed, the evidence to the Court was that the fuel injector was replaced on the 19th of January 2017 together with the high-pressure supply line. The customer collected the vehicle on the 20th of January.

Under cross-examination the plaintiff’s expert denied that he was adamant that it was a gearbox issue although he agreed that it appeared to be, and it was not obvious that it was a misfire issue as the engine fault light had not illuminated. He gave evidence that the check carried out with the benefit of the Land Rover software should have been carried out earlier, but he could not provide any basis for this statement. He did not provide any cogent explanation as to the alternative steps that should have been taken by Dealer B in repair of the vehicle.

Dealer B’s expert gave cogent evidence to the effect that work was carried out in a particular order, based firstly on the content of the customer’s complaint. It was for this reason that the enquiry did not initially focus on the engine itself. The software used by Dealer B requires the mechanic to make certain enquiries at different stages of the process. It is apparent from the evidence of each of the defendant’s experts that the usual steps were taken in an orderly manner for the purpose of identifying the source of the problem. Ultimately the source of the problem was ascertained, new parts were ordered and fitted. The vehicle was then returned to the plaintiff.

The plaintiff confirmed in the course of her evidence that she had not informed Dealer B of her dissatisfaction with the replacement vehicle at the time. She gave evidence that she had discussed the matter with Dealer A and that he had said he would assist in getting her a better replacement vehicle. Dealer A gave evidence that very shortly after this conversation with the plaintiff he became aware that her vehicle was about to be returned to her by Dealer B.

The Law: Counsel for the plaintiff referred the Court to Section 16 of the Sale of Goods and Supply of Services Act 1980.

“Section 16 provides

(1) that a guarantee shall be clearly legible and shall refer only to specific goods or to one category of goods.

(2) A guarantee shall state clearly the name and address of the person supplying the guarantee.

(3) A guarantee shall state clearly the duration of the guarantee from the date of purchase, but different periods may be stated for different components of any goods.

(4) A guarantee shall state clearly the procedure for presenting a claim under the guarantee which procedure shall not be more difficult than ordinary or normal commercial procedure.

(5) A guarantee shall state clearly what the manufacturer or other supplier undertakes to do in relation to the goods and what charges, if any, including the cost of carriage, the buyer must meet in relation to such undertakings.

(6) It shall be an offence for the manufacturer or other supplier of goods to supply in connection with the goods a guarantee which fails to comply with this section.”

Reference was also made to Section 17 of the Act which provides:

17(1) Where the seller of goods delivers a guarantee to the buyer, irrespective of when or how it is delivered, the seller shall be liable to the buyer for the observance of the terms of the guarantee as if he were the guarantor, unless he expressly indicates the contrary to the buyer at the time of delivery.

(2) Where, however, the seller, being a retailer, gives the buyer his own written undertaking that he will service, repair or otherwise deal with the goods following purchase, it shall be presumed, unless the contrary is proved, that he has not made himself liable to the buyer under the guarantee so delivered.

(3) Sections 16, 18 and 19 should apply to any such undertaking as they apply to a guarantee.

(4) The liability of a seller to a buyer under this section is without prejudice to the rights conferred on the buyer under Section 19.”

Section 19 (1) provides: “the buyer of goods may maintain an action against manufacturer/ supplier who fails to observe any of the terms of the guarantee as if that manufacturer or supplier had sold the goods to the buyer and had committed a breach of warranty, and the Court may order the manufacturer or supplier to take such action as may be necessary to observe the terms of the guarantee, or to pay damages to the buyer.

In this subsection “buyer” includes all persons who acquire title to the goods within the duration of the guarantee and, where goods are imported, “manufacturer” includes the importer.

(2) In any case in which a guarantor is liable to an owner in damages, the Court, may at it’s discretion and on such terms as the Court may deem just, afford the guarantor the opportunity of performing these obligations under the guarantee to the satisfaction of the Court within a time to be limited by the Court.”

It was submitted on behalf of the plaintiff that the high standard of after sales care expected by the plaintiff was not met by either Dealer A or Dealer B, as such both are liable under the provisions of the regulations. Reference was also made to the legal guarantee to which every European consumer is entitled to, introduced by Directive 1999/44/ EC on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees (“The Consumer Sales and Guarantees Directive”). This directive provides for a two-year legal guarantee of conformity from the date of delivery of the item to the consumer. The EU legal guarantee allows customers to request repair or replacement of defective vehicles or in some cases a refund. In the event that lost time is covered by the warranty and in this case, it is claimed there was an unreasonable delay in the repair of the vehicle.

The plaintiff also claims for loss of use of the vehicle and that the replacement vehicle was not of a similar standard. The plaintiff submitted that it is an implied term of the warranty that the repair of the vehicle would take place within a reasonable time period. Counsel for the plaintiff submits that Dealer B’s own expert refers to a misfire being identified in December 2016 and as such there is no valid explanation for the delay in diagnosing the defect with this vehicle. The plaintiff relies on Section 17 of the 1980 Act, such that the seller is liable as if he is the guarantor. It is submitted that from receipt of the email on the 16th of December, Dealer A’s company is on notice of the plaintiff’s predicament, and he failed to follow up on same including provision of a replacement vehicle.

Reference is made to Section 19 of the 1980 Act, which outlines that the buyer can sue under the guarantee and the manufacturers are in the same position and as such the buyer can sue both Dealer A and the manufacturer. Nothing in Section 19 limits the plaintiff’s rights to do so. The plaintiff also relies on Section 39 and the fact that the supplier must have the skill to provide the service with care and diligence and within a reasonable time frame. Counsel for the plaintiff submitted that there is a presumption that the defect was present at the time of delivery where same occurs within six months of the purchase.

Dealer A: Counsel for Dealer A states that there is no valid claim against their client and sought a direction in the matter, to which the Court did not accede. Counsel for Dealer A submitted that it is difficult to discern what claim was made against Dealer A. It is submitted that the vehicle was of merchantable quality at the time of the sale and that Dealer A took appropriate steps with regard to servicing same prior to sale of same to the plaintiff. Counsel submitted that the misfire part that required replacing is a wear and tear part and as such this was not established as a latent defect in the vehicle at the time of purchase. The evidence of the plaintiff's own expert was that there was no warning light on the engine in the middle of November or in December or January 2017. It is submitted that no guarantee is provided by Dealer A and that there is no breach of a warranty which he did not provide. It is submitted that “annoyance” doesn’t give rise to a cause of action. While Dealer A was ill at the time perhaps, he could have given the situation more attention however, his actions or inactions did not give rise to a breach of statutory obligations as alleged. On the 16th of January 2017 Dealer A was informed that the vehicle had been repaired and it was for this reason that he did not pursue obtaining an alternative vehicle for the plaintiff.

Dealer B (the manufacturer & the importer: Counsel for Dealer B (the manufacturer & the importer) referred the Court to Section 12 of the 1980 Act and the implied warranty by the seller which is not provided by the manufacturer. Counsel submitted that Dealer B carried out the service as Land Rover’s agent for the purpose of the warranty, given by Land Rover. It was submitted that the evidence given by the plaintiff’s own expert was that the latent defect could have been there but not that this particular defect was there at the time of purchase. It is submitted that the contract for sale is not relevant to Dealer B, just the terms of the warranty. It is further submitted that there's no tortious liability on the part of Dealer B or the third named defendant and that no evidence of negligence has been given with regard to the manufacture of the vehicle. It is further submitted that Section 12 provides an implied warranty on the part of the seller only and not on the part of the manufacturer. Section 16 deals with the guarantee supplied by the manufacturer and it's critical to look at Section 12 (3) “notwithstanding section 55(1) of the Act of 1893 (Section 22 of this Act) any term of a contract exempting from all or any of the provisions of this Section shall be void.”

The Sale of Goods and the Supply of Services Act 1980 sets out at Section 3 the concept of dealing with a party as a consumer, that Section provides:

“(3) In the Act of 1893 and this Act, a party to a contract is said to deal as consumer in relation to another party if:

(a) He neither makes the contract in the course of a business nor holds himself out as doing so,

(b) The other party does make the contract in the course of a business,

(c) The goods or services supplied under or in pursuance of the contract are of a type ordinarily supplied for private use or consumption.”

Section 13 of the Act provides for implied undertakings as to title and related matters. Section

13 provides for the sale of goods by description, such that there is an implied condition that the goods should correspond with the description. Section 14 (2) as amended by Section 10 of the 1980 Act provides:

“Where the seller sells goods in the course of a business there is an implied condition that the goods supplied under the contract are of merchantable quality, except that there is no such condition:

(a) as regards defects specifically drawn to the buyer’s attention before the contract is made, or

(b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to have revealed.

(3) Goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought and as durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances, and any reference in this Act to unmerchantable goods shall be construed accordingly.”

Section 11 deals with statements purporting to restrict rights of the buyer and provides that it shall be an offence in certain circumstances to restrict the rights of the buyer under the Act. Section 12 deals with an implied warranty for spare parts and servicing. This Section provides:

“12(1) In a contract for the sale of goods there is an implied warranty that spare parts and an adequate after sales service will be made available by the seller in such circumstances as are stated in an offer, description or advertising by the seller on behalf of the manufacturer or on

his own behalf and for such period as is so stated or, if no period is so stated, for a reasonable period.”

At Section 12(3), notwithstanding Section 55 (1) of the 1893 Act (inserted by Section 22 of this Act) any term of a contract exempting from all or any of the provisions of this Section shall be void.”

Section 13 deals with an implied condition on sale of motor vehicles and provides as follows:

“13(1) in this section “motor vehicle” means a vehicle intended or adapted for propulsion by mechanical means, including:

(a) a bicycle or tricycle with an attachment for propelling it by mechanical power, and

(b) A vehicle, the means of propulsion of which are electrical or partly electrical and partly mechanical.

(2) Without prejudice to any other condition or warranty, in every contract for the sale of a motor vehicle (except a contract where the buyer is a person whose business it is to deal in motor vehicles), there is an implied condition that at the time of delivery of the vehicle under the contract it is free from any defect which could render it a danger to the public, including persons travelling in the vehicle.”

Section 15 provides a definition of “guarantee” which “means any document, notice or other written statement, howsoever described, supplied by a manufacturer or other supplier, other than a retailer, in connection with the supply of any goods and indicating that the manufacturer or other supplier will service, and repair or otherwise deal with the goods following purchase.”

Section 16 (1) and Sections 17 are relied on the provisions of which are already set out earlier in this judgment.

Section 18 deals with exclusion of the buyer’s rights under guarantee and provides:

“18(1) Rights under a guarantee shall not in any way exclude or limit the rights of the buyer at common law or pursuant to statute and every provision in a guarantee which imposes obligations on the buyer which are additional to his obligations under the contract shall be void.

(2) A provision in a guarantee which purports to make the guarantor or any person acting on his behalf the sole authority to decide whether goods are defective or whether the buyer is otherwise entitled to present a claim shall be void.”

Under Section 19(1) The buyer of goods may maintain an action against a manufacturer or other supplier who fails to observe any of the terms of the guarantee as if that manufacturer or supplier had sold the goods to the buyer and had committed a breach of warranty, and the Court may order the manufacturer or supplier to take such action as may be necessary to observe the terms of the guarantee, or to pay damages to the buyer. In this subsection, “buyer” includes all persons who acquired title to the goods within the duration of the guarantee and, where goods are imported, “manufacturer” includes the importer.

(2) In any case in which a guarantor is liable to an owner in damages, the Court, may at it’s discretion and on such terms as the Court may deem just afford the guarantor the opportunity of performing these obligations under the guarantee to the satisfaction of the Court within a time to be limited by the Court.

Section 20 provides an amendment of Section 35 of the Act of 1893 to read as follows:

“Acceptance” in paragraph 35: The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or, subject to Section 34 of this Act, when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller or when, without good and sufficient reason, he retains the goods without intimating to the seller that he has rejected them.”

Section 21 deals with remedies for breach of contract and amends Section 53 of the 1893 Act as follows:

“53(1) Subject to subsection (2), where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods, but he may:

(a) set up against the seller the breach of warranty in diminution or extinction of the price, or

(b) maintain an action against the seller for damages for the breach of the warranty.

(2) Where:

(a) The buyer deals as a consumer and there is a breach of a condition by the seller which, but for this subsection, the buyer would be compelled to treat as a breach of warranty,

(b) The buyer, promptly upon discovering the breach, makes a request to the seller that he either remedy the breach or replace any goods which are not in conformity with the condition, and, if the seller refuses to comply with their request or fails to do so within a reasonable time, the buyer is entitled:

(i) to reject the goods and repudiate the contract, or

(ii) to have the defect constituting the breach remedied elsewhere and to maintain an action against the seller for the costs thereby incurred by him.

(3) The onus of proving that the buyer acted with promptness under Section 2 shall lie on him.

(4) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

(5) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.

(6) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price or that the seller has replaced goods or remedied a breach does not of itself prevent the buyer from maintaining an action for the same breach of warranty if he has suffered further damage.”

Section 22 deals with an amendment of Section 55 of the 1893 Act to read as follows:

“55(1)Subject to the subsequent provisions of this Section, where any right, duty or liability shall arise under a contract of sale of goods by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by usage if the usage is such as to bind both parties to the contract.

(2) An express condition or warranty does not negative a condition or warranty implied by this Act unless inconsistent therewith.

(3) In the case of a contract for sale of goods, any term of that or any other contract exempting from all or any of the provisions of Section 12 of this Act shall be void.

(4) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of Section 13, 14 or 15 of this Act shall be void where the

buyer deals as a consumer and shall, in any other case, not be enforceable unless it is shown that it is fair and reasonable.

(5) Subsection (4) shall not prevent the Court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of Section 13, 14 or

15 of this Act is not a term of the contract.

(6) Any reference in this Section to a term exempting from all or any of the provisions of any Section of this Act is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of the provisions of that Section, or the exercise of a right conferred by any provision of that section, or any liability of the seller for breach of a condition or warranty implied by any provision of that Section.”

S.I. Number 11 of 2003 of the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003 deals with certain aspects of the sale of consumer goods and associated guarantees. That regulation provides for a definition of the word “repair” which means “in the event of lack of conformity of consumer goods, to bring the goods into conformity with the contract of sale”. Section 3 of the regulation provides that “these regulations are in addition to, and not in substitution for, any other enactment relating to the sale of goods or the terms of contracts concluded with consumers, and in particular (a) The Sale of Goods and Supply of Services Acts 1893 and 1980, and (b) The European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. number

27 of 1995).”

Subsection 3(3) provides “in a case where the level of protection for the consumer afforded by a particular provision of these regulations is greater than that afforded by a particular provision of another enactment, or to the extent that the invocation of a latter such provision by the consumer would diminish the first mentioned level of protection for him or her:

(a) The consumer may opt to invoke the particular provision of these Regulations to the exclusion of the other provision,

(b) The other provision may be invoked, and shall be construed and operate so as to be capable of being invoked, by the consumer in a manner that does not diminish the first mentioned level of protection for him or her,

Nothing in this paragraph operates to extend the application of these Regulations to a person who is not a consumer within the meaning of these Regulations or to goods that are not consumer goods within the meaning of these Regulations.”

Regulation 5(1) provides “The consumer goods delivered under contract of sale to the consumer must be in conformity with that contract.

(2) For the purposes of these Regulations, consumer goods are presumed to be in conformity with the contract of sale if they:

(a) Comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model.

(b) Are fit for any particular purpose for which the consumer requires them and which he or she made known to the seller at the time of conclusion of the contract on which the seller has accepted,

(c) Are fit for the purposes for which goods of the same type are normally used,

(d) Show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or their representative particularly in relation to advertising or labelling.

Section 7(1) provides that “the seller shall be liable to the consumer for any lack of conformity referred to in Regulation 5 which exists at the time the goods were delivered.

(2) In the case of such a lack of conformity, the consumer shall, subject to, and, in accordance with, this Regulation, be entitled to have:

(a) The goods brought into conformity free of charge by repair or replacement, or

(b) The appropriate reduction made in the price, or

(c)The contract rescinded with regard to those goods.

(3) In the first place, the consumer may require the seller to repair the goods or to replace them (in either case free of charge) unless this is impossible or disproportionate…

(5) Where the remedy of repair or replacement is provided, the repair or replacement shall be completed within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required them…..

(8) The consumer is not entitled to have the contract rescinded if the lack of conformity is minor…………

Regulation 8(1) provides “Subject to paragraph (2), any lack of conformity which becomes apparent within six months from the date of delivery of the goods shall, unless the contrary is proved, be presumed to have existed at the time of delivery of the goods.

(2) Paragraph (1) should not apply if, by reason of-

(a) The nature of goods concerned, or

(b)The nature of the lack of conformity concerned, it would not be a reasonable inference that the lack of conformity existed at the time of delivery.”

Regulation 9 deals with the position in relation to guarantees and provides as follows:

“(9)(1) A guarantee shall be legally binding on the offeror under the conditions laid down in the guarantee statement and the associated advertising,

(2) The guarantee shall:

(a) State that the consumer has legal rights under these Regulations and the other enactments governing the sale of consumer goods and make clear that those rights are not affected by the guarantee, and

(b) Set out in plain intelligible language the contents of the guarantee and the essential particulars necessary for making claims under the guarantee, including the duration and territorial scope of the guarantee as well as the name and address of the guarantor.

(3) On request by the consumer, the guarantee shall be made available in writing or another durable medium available and accessible to him or her.

(4) If such a guarantee does not comply with any of the requirements of paragraph (2) or (3) shall not affect the validity of the guarantee and, accordingly, the consumer may invoke and enforce the guarantee despite any such noncompliance.

Regulation 11 provides for jurisdiction to order the repair or replacement of consumer goods.

The Court was also asked by counsel for Dealer B to consider the decision of the Supreme Court in the case of Pat O’Donnell & Company Limited v Truck & Machinery Sales Limited [1998] 4IR 191 which deals with liability in tort where a claim under the warranty was unsuccessful. In that case the High Court found that the goods were of merchantable quality and were reasonably fit for purpose or at least no realistic appraisal of the proven defects proved otherwise. The Supreme Court was of the view that “In light of these very positive findings of fact I find it difficult to see how a finding could be made of negligent and statutory misrepresentation …” “As long as the defendant received the rentals from those customers to whom it hired out the machines, the machines achieved the purpose for which they were bought…”

The warranty: An examination of the warranty documents reveals a territorial limit clause on the UK warranty such that same only applies to individuals residing in the UK. Further, same is governed by the laws of England and Wales. As such, the warranty provided to such vehicles for the Irish market is applicable in this case. This document states clearly that the warranty supplements and does not affect legal rights under the vehicle purchase agreement or under applicable national legislation governing the sale of consumer goods. The vehicle warranty provides that should any part of the vehicle require repair or replacement as a result of a manufacturing defect, the part will be repaired or replaced completely free of charge by any Land Rover authorised repairer, regardless of any change of vehicle ownership during the period of cover.

Decision: This Court has carefully considered all of the evidence adduced at the hearing and what was offered by counsel for each litigant. The Court finds as follows:

1. The plaintiff is a consumer within the meaning of the Sale of Goods and Supply of Services Acts 1980, as amended.

2. The vehicle was of merchantable quality at the time of purchase and was free from defects. Dealer A had taken appropriate steps (such as servicing) so as to ensure that the vehicle was fit for purpose. This is also evident from the fact that the plaintiff took the vehicle back over the Christmas period for the purpose of using same. Such ordinary use of the vehicle is a compelling indication of the vehicle being fit for its usual purpose.

3. Under the warranty, Dealer B owed the plaintiff a duty of care to carry out any repairs or servicing in a competent manner and to use replacement parts in the event that repairs or replacements proved necessary.

4. Dealer A provided an adequate after sales service to the plaintiff. At no time did the plaintiff request Dealer A to carry out any repairs.

5. Dealer B carried out repairs to the vehicle as requested and without causing further damage to the vehicle and provided adequate replacement parts for the vehicle.

6. The Court accepts that the parts requiring replacement (cylinder 8 & other parts) were wear and tear parts and as such there was no latent defect at the time of purchase.

7. Dealer B promptly and competently repaired the defects in the vehicle once the vehicle was made available. The plaintiff’s expert witness provided no alternative process by which diagnosis of the problem could have occurred within an earlier time frame other than knowing where to look for it. The Court accepts the technical evidence given on behalf of the defendants with regard to the repairs carried out to the vehicle. It is clear that Dealer B and Land Rover have a well thought out and methodical approach to assessing a vehicle which takes account of the company’s worldwide knowhow and experience. Diagnosis starts with looking firstly into the complaint made by the customer, prior to moving on to other probable causes.

8. Dealer B and the other defendants provided an adequate after sales service. The plaintiff was provided with an alternative vehicle albeit not of the same standard. The plaintiff made no complaint at the time to Dealer B. Dealer A had sought to assist however the vehicle was fixed at that stage. The warranty provides that a replacement vehicle would be provided subject to availability.

9. The plaintiff chose to pay for a service and for her own expert. The warranty specifically excludes responsibility for these types of payments.

10. There was no negligence on the part of any of the defendants.

As such the Court dismisses the appeal and the claims made by the plaintiff.

The Court grants an order directing the plaintiff discharge the party-party costs of the other parties, to be taxed in default of agreement.