SIMI ARBITRATION CLAUSES

Caroline Fanning Solicitors together with Michael P McGrath SC and Eamon Shanahan BL acted for the car owner in a recent 2019 High Court Case of Cavanaghs of Charleville Ltd. & anor -v- Fitzpatrick which gives an insight into the law relating to Arbitration Clauses and the 3 reasons that the Court will refuse to uphold them 1. arbitration agreement is null and void or 2. the clause is inoperative or 3. the clause is incapable of being performed.  In this case Circuit Court Judge O’Brien made an Order refusing to stay the car owners’ legal proceedings and remit them to arbitration but the dealer and Ford Ireland brought a Judicial Review (JR) of this Court Order and succeeded in quashing it on the basis the learned Judge had not given adequate reasons in open court for his refusal to uphold the SIMI arbitration clause. ref: http://www.courts.ie/Judgments.nsf/

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What are the rights of a consumer where something goes wrong with your car?

Caroline Fanning Solicitors has acted in the area of motor trade law since 2007 and been involved in successfully resolving a vast number of cases from both a dealer/manufacturer perspective and a consumer perspective.

Most people accept that going to Court carries a risk with the general rule of costs being that the losing party pays all.

Motor trade law cases could be held to fall into the David and Goliath category of cases. It is imperative that a motor assessor/engineers’ opinion is sought in these cases and the full service, repair and/or accident history of the vehicle should be provided to the motor assessor in advance of any legal case. Set out below various legal protections available.

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Manufacturers’ Warranty

Check the terms of the warranty such as duration/mileage/exclusions etc.

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Consumer Protection Act 2007

The Consumer Protection Act 2007 makes it an offence for a trader to engage in a misleading commercial practice, which would include the provision of false information in relation to a products usage or prior history to the extent that the information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make. The Competition and Consumer Protection Commission (amalgamation of the National Consumer Agency and Competition Authority) enforces this legislation.

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Sale of Goods and Supply of Services Act 1980

Rights include fitness for purpose, merchantability, free from defects etc.

Section 13(2) of the Sale of Goods and Supply of Services Act 1980 contains an implied condition in the sale of a motor vehicle that at the time of delivery the vehicle is free from any defect that would render it a danger to the public and to people travelling in the vehicle.  Section 13(7) of the 1980 Act goes further by providing that if a person using the vehicle with the consent of the buyer suffers a loss because of a breach of section 13(2), they may maintain an action for damages against the seller as if they were the buyer.

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Section 82 of the Consumer Credit Act 1995

Where a motor vehicle is let under a hire-purchase agreement, section 13 (which relates to an implied condition on sale of motor vehicles) of the Sale of Goods and Supply of Services Act 1980 gives the hirer of the vehicle rights to sue the owner of the vehicle in addition to all other rights against the dealer/manufacturer etc. for breaches of certain implied conditions.

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Liability For Defective Products Act, 1991

Section 7 of this Act states that:-

“(1) An action for the recovery of damages under this Act shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date (if later) on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer.

(2) (a) A right of action under this Act shall be extinguished upon the expiration of the period of ten years from the date on which the producer put into circulation the actual product which caused the damage unless the injured person has in the meantime instituted proceedings against the producer.

DEFENCES

s6.—A producer shall not be liable under this Act if he proves—

( a ) that he did not put the product into circulation, or

( b ) that, having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that that defect came into being afterwards, or

( c ) that the product was neither manufactured by him for sale or any form of distribution for an economic purpose nor manufactured or distributed by him in the course of his business, or

( d ) that the defect concerned is due to compliance by the product with any requirement imposed by or under any enactment or any requirement of the law of the European Communities, or

( e ) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered, or

( f ) in the case of the manufacturer of a component or the producer of a raw material, that the defect is attributable entirely to the design of the product in which the component has been fitted or the raw material has been incorporated or to the instructions given by the manufacturer of the product.

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REMEDIES

Remedies can include rescission of contract and full refund, replacement/repair, monetary compensation (to include  include depreciation and loss of resale value), general damages for inconvenience, anxiety, irritation, mental strain and frustration, legal costs and outlays. There is also caselaw where the Court awarded a doctor compensation for loss of  time (which was held to have a “pecuniary value”) where he was delayed at a bridge was a result of a road traffic accident.

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The MIBI Agreement, dated 21st December, 1988 and made between the Minister for the Environment and the Motor Insurers Bureau of Ireland, was entered into to ensure that persons suffering personal injury in road accidents involving uninsured or stolen vehicles and unidentified or untraced drivers would be adequately compensated. The relevant Clause in that Agreement under which the Plaintiff is claiming reads as follows:-

“6. In the case of an accident occurring on or after the 31st day of December, 1988, the liability of M.I.B. of I. shall extend to the payment of compensation for the personal injury or death of any person caused by the negligent driving of a vehicle in a public place, where the owner or user of the vehicle remains unidentified or untraced.”

The MIBI may also seek to recover damages which it has paid to an injured person from an uninsured driver or his estate.

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Section 26 of the Civil Liability and Courts Act 2004 allows the Court in certain circumstances to dismiss tort(personal injury) claims where the plaintiff has exaggerated his or her injuries, save where injustice would result.

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CASE LAW EXAMPLES

A company that leased a high end €73,000.00 Mercedes E200 was awarded more than €17,000.00 in the Civil Circuit Court after the engine seized up as a result of an interior leak in the engine. The warning in the car had kept telling the driver to top up the coolant.

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A High Court case has held that where there is not a complete failure of consideration (meaning the car could be driven although there were issues with it (relating in this case to fuel consumption) rescission is not a remedy available to a plaintiff.

MISSTATEMENTS

The Irish High Court case has HELD

“As to the liability that arises in law from a  misrepresentation , whether  innocent , negligent or fraudulent, and whether made by parties to a contract or made in other circumstances, the law in Ireland appears to be as follows:

A fraudulent  misrepresentation  will unquestionably give rise to an action for damages for deceit.

An  innocent misrepresentation  will not in general give rise to any action for damages, although it may afford grounds for rescission of a contract or a defence to an action for specific performance. There are, however, two broad categories of cases in which a person may be entitled to recover damages for an  innocent misrepresentation . They are:

(a) Where a representation is made for the purpose of inducing a person to enter into a contract, and it actually induces him or her to act on it by entering into the contract;

(b) Where the representation is made negligently by a person owing a duty of care in relation to the making of such a statement to the person to whom the representation is made.”

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Whilst the sums at stake in disputes involving motor vehicles may not be “substantial” for many motor dealers and motor manufacturers the reputation of their brand has an importance which overrides the monetary value of a claim.

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EXHAUST FUMES/CARBON MONOXIDE EXPOSURE CLAIMS

Caroline Fanning Solicitors has acted in the defence of alleged claims of carbon monoxide exposure (commonly associated with a sense of a headache and vague neurological symptomatology which can often be difficult to categorise). 

Carbon monoxide fumes are well documented in exhaust emissions.  Where the exhaust fumes are proved to have leaked into the passenger compartment, carbon monoxide poisoning is a medical concern both from the point of view of acute toxicity (it can be fatal if inhaled in sufficient quantities) and also because of the suspicion held by some (but not all) neurologists and toxicologists that chronic low grade carbon monoxide exposure can result in permanent psychological impairments with lifelong implications for the sufferer.