Consumer Protection
Cases
Kane -v- Massey Ferguson (Ireland) Ltd & Ors
[2007] IEHC 457
Irvine J
Insofar as the third named defendant is concerned, the court does not propose to restate the law in relation to the Sale of Goods Act, 1980 and the Consumer Credit Act, 1995 in relation to “consumers” who are defined in both Acts so as to exclude certain categories of persons including those who enter into contractual relationships in the course of their business from certain statutory rights. The position in relation to the law in this issue is, in the opinion of this court, correctly stated by O’Neill J. in Patrick G. Flynn v. Dermot Kelly Limited and New Holland Finance (Ireland) Limited [2007] IEHC 103. This court concludes that the agreement between the plaintiff and the third named defendant for the leasing of this Massey Ferguson tractor was not a “consumer hire agreement” within the meaning of the Consumer Credit Act, 1995 as the plaintiff was hiring the goods for business use. This fact is further confirmed by the plaintiff in the terms and conditions which are attached to the lease agreement dated 18th January, 1998. For these reasons the Court holds that the Plaintiff has no claim against the Third named defendant.
Damages
In the course of the trial, evidence was led to the effect that the plaintiff had failed to make a number of payments on foot of the lease agreement entered into with the third named defendant. This being so, the court the Court needs to be appraised of the rights, if any, being asserted by the Third named Defendant regarding ownership of the tractor and /or the extent of any liability they contend remains outstanding by the Plaintiff as a condition precedent to his entitlement to ownership thereof. The Court is therefore not in a position at present to deal with the issue of damages and will need to hear all parties regarding these matters. For the purposes of dealing with the issue of damages, the court will also require evidence as to:-
1. The location of the tractor, the subject matter of the agreement and its current value.
2. The present day cost of the most similar model of Massey Ferguson tractor to that the subject matter of this claim.
Consequently, the court will deal with the issue of quantum at a time to be agreed between the parties who should, if at all possible, to avoid further unnecessary costs endeavour to reach agreement on the above matters with fairly immediate effect.
The Court will deal with the Costs of all parties after the issue of Damages has been disposed of.
Jones & Anor v Gallagher & Anor (t/a Gallery Kitchens And Bathrooms)
[2004] EWCA Civ 10
Thomas LJ
The terms upon which a consumer is entitled to reject in circumstances such as this are set out in section 35 of the Sale of Goods Act 1979 as amended. The relevant terms of section 35 are:
“(1) The buyer is deemed to have accepted the goods, subject to subsection (2) below-
(a) when he intimates to the seller that he has accepted them; or
(b) 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.
(2) Where goods are delivered to a buyer, and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose-
(a) of ascertaining whether they in conformity with the contract ….
(3) Where the buyer deals as a consumer (or in Scotland the contract of sale is a consumer contract) the buyer cannot lose his right to rely on subsection (2) above by agreement, waiver or otherwise.
(4) The buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he retains them without intimating to the seller that he has rejected them.
(5) The questions that are material in determining for the purposes of subsection (4) above whether a reasonable time has elapsed include whether the buyer has had a reasonable opportunity of examining the goods for the purpose mentioned in subsection (2) above.
(6) The buyer is not by virtue of this section deemed to have accepted the goods merely because-
(a) he asks for, or agrees to, their repair by or under an arrangement with the seller.”
Section 59 of the Act makes it clear that where reference is made to “a reasonable time”, the question of what is a reasonable time is a question of fact.
The scope of section 35 was considered recently by this court in Clegg v Andersson [2003] EWCA Civ 320. Sir Andrew Morritt V-C pointed out at paragraph 63 of his judgment the effect of the change that been made to section 35 as a result of the amendment of the 1994 Act. He said:
“As originally enacted s 35(1) provided that a buyer was deemed to have accepted goods, inter alia, ‘when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them’. Section 59 provided then, as it does now, that what is a reasonable time is a question of fact. The material difference arises from the removal of that part of sub-s (1) to sub-s(4) and the addition of sub-ss(5) and (6). Thus sub-s(5) provides that whether or not the buyer has had a reasonable time to inspect the goods is only one of the questions to be answered in ascertaining whether there has been acceptance in accordance with sub-s(4). Subsection (6)(a) shows that time taken merely in requesting or agreeing to repairs, and, I would hold, for carrying them out, is not to be counted.
In these circumstances I consider that time taken to ascertain that would be required to effect modification or repair is to be taken into account in resolving the question of fact which arises under sub-s(4).”
The same issue was considered by Hale LJ at paragraphs 73-74.
It is clear that when considering under section (4) what is a reasonable time, regard must be had to the time taken to effect modifications and repairs. However, in the end, what time is a reasonable time is a question of fact. That must be decided in the circumstances of each particular case.
During the course of argument before us counsel for the appellant sought to rely on specific periods of time set out in other cases. In my view that is not the correct approach. It is necessary to consider the facts in each particular case and to decide, applying the law as set out in section 35 of the Act, what is a reasonable time.
On that basis, the question that arises in this appeal is whether the learned judge directed himself correctly as to the law and whether there was evidence on which he was entitled to conclude that a reasonable time had elapsed. In my view he did not direct himself correctly and there was ample evidence on which the judge was entitled to conclude that a reasonable time had elapsed.
It is important, first, to consider the most important of the issues raised at the trial, namely the colour. It is clear that the mis-match in colour must have been apparent on delivery of the kitchen cabinets. No complaint was made until 9 May 2000. Allowing time for the request then made to be considered and remedied, there was a complaint again on 3 August 2000. Even at that time, there was no mention of any intimation of rejection, despite the concluding words of the letter to which I have referred. A further seven weeks elapsed from that time before rejection was first intimated.
Considering that evidence, and considering the very detailed evidence that was heard by the learned judge over two days, it is clear to me that there was ample evidence in respect of the principal complaint (and I stress that it appears to us that from the judge’s judgment that was the principal complaint at the trial) upon which he was entitled to come to a view as a question of fact that a reasonable time elapsed.
It is also important to have regard to the other defects to which I have referred. It was obvious what they were. None of the defects were latent, they were all patent. Quite clearly, in asking for the defects to remedied and by allowing time for the remedies and repairs to be made, that time was not to count against the appellants when the question of reasonable time for the purposes of section 35(4) was considered. However, how those detailed questions were to be taken into account was a question of fact. It is correct to say that the judge did not set out in his judgment details of the way in which he had taken into account the matters set out in section 35(5) and (6). However, it is clear from the evidence before us that some repairs were carried out and that some items were accepted with recompense. It is also clear that there were some items of which the appellants were initially aware and about which no complaint was made, but in respect of which it was later intimated that the goods should be rejected.
The judge set out the material provisions of section 35. As we understand it, the matters were argued fully before him. Looking at those passages of the transcript to which our attention has been directed and to the correspondence in the case, I am quite satisfied that there was ample evidence upon which the judge was entitled to conclude that there had been a reasonable time in which the appellant had not intimated the rejection of the goods.
The suggestion was made before us that some of the defects required an expert to identify them. That point was not raised in the Notice of Appeal, nor, in my view, having looked at the expert’s report, was there any issue raised in that report where the judge should have taken the view that the defects set out therein would not have been obvious to a consumer.
In the course of argument before us, a number of complaints relating to the goods were identified. It was suggested to us that in respect of those items nothing had been done or, if something had been done, it had not been adequate. In essence, we were asked to review the evidence that had been heard over two days before the learned judge and reach the detailed findings of fact, in relation to each of the various items, as to when the complaint had first be made, what had been done, whether that was adequate and the time that had elapsed. None of those items, and none of that detail, was identified in the Notice of Appeal. It seems to me quite impermissible for those issues to have been raised at this stage, even if it were ever apposite, given the fact that these were essentially matters of fact for the judge to decide on the basis of a proper understanding of the law.
It is right to observe that the judge’s judgment could have been more detailed. But, having regard to the way the judge approached the case, to the careful way in which he set out his findings, to the way which the case was argued before him, I am satisfied that he directed himself properly on the law and in relation to the question under section 35(4) of the Act there was ample evidence upon which he could have reached his conclusion. That, in my view, is sufficient to uphold the finding of the learned judge.
The judge also referred to the fact that the appellants had accepted the goods by using them. Had that been the only matter and no lapse of time, I am not persuaded that that would have been sufficient. But it is not necessary for me to consider that matter further because there was sufficient in the lapse of time that had occurred for the judge to have been entitled to find that a reasonable time had elapsed before the intimation of rejection was made.
On that basis, therefore, I would uphold the judge’s judgment and dismiss this appeal.
LORD JUSTICE BUXTON: I agree. I would add only one further short point. Possibly because he perceived the difficulties facing him in seeking to reverse what, as my Lord has pointed out, was the factual assessment of the judge, Mr Rich at one point of his argument submitted that, as a matter of law, it was not open to the district judge to find that the right of rejection had been lost. That submission was not to be found anywhere in the Notice of Appeal but, nonetheless, we permitted it to be opened before us.
The submission was principally based on paragraph 75 of the seminal judgment of Hale LJ (as she then was) in Clegg v Andersson [2003] 1 All ER Commercial 271 to which my Lord has already referred. It is important to bear two points in mind. The first is the nature of the facts in Clegg v Andersson, which related to a large and extremely specialist piece of equipment, a yacht, which did not perform as the buyer wished, and in respect of which the buyer engaged in substantial correspondence with the seller: not in the first instance to make complaint in detail, but rather to examine with the seller what options were open to rectify the difficulties that had appeared. Secondly, Clegg v Andersson was important because it was the first case that came before this court after the amendment of the Sale of Goods Act to which my Lord has referred. It is understandable that in her judgment Hale LJ emphasised the effect of that amendment.
The section relevant to our consideration here, as they were relevant to Hale LJ’s consideration, is section 35(6):
“The buyer is not by virtue of this section deemed to have accepted the goods merely because —
(a) he asks for, or agrees to, their repair by or under an arrangement with the seller.”
Mr Rich argued that the effect of that, as understood by Hale LJ, was that, while a period of repair was in progress, or alternatively as in our present case a period of complaint and request for remuneration was in progress, it was not possible for the buyer to have lost his right to reject. That is not a correct construction either of the Act or of what was said by her Ladyship. The Act stresses that the buyer is not deemed to have accepted the goods merely because he asks for or agrees to their repair. The purpose of that subsection was to correct what had previously been thought, rightly or wrongly, to be the law, that the right to reject was lost automatically if one engaged in discussion or activity about repair. That is no longer the law. Such delay is simply a factor to be taken into account in the factual assessment that is placed on the court. That is plainly what her Ladyship was referring to in paragraph 75 where she does no more than set out the terms of the new Act.
When she said at the end of that paragraph, in a passage relied on by Mr Rich:
“It follows that if a buyer is seeking information which the seller has agreed to supply which will enable the buyer to make a properly informed choice between acceptance, rejection or cure, and if cure in what way, he cannot have lost his right to reject”,
I would venture two comments. First, that formulation is closely directed to the facts in Clegg v Andersson: that is to say, where there was uncertainty as to what was wrong and the buyer was seeking professional information from the seller as to what might be done to put it right. That is a long way from our present case, where there were apparent and easily ascertained defects in the goods, more particularly in the nature of the wood and its colour, that were apparent on the very day of delivery, and further defects in the goods in relation to the use of straightforward kitchen equipment: which, as my Lord has said, did not need discussion or an expert to identify what was wrong.
Secondly, I am sure that Hale LJ did not intend to go so far as to say that it was generally impossible to lose the right to reject while a buyer was still seeking information. As the next paragraph of the judgment shows, she was clearly relating that formulation to the particular facts of that case, which was a difficult and complicated (and I would add extremely expensive) problem but the consideration extending over a period of only three weeks. There is no absolute rule that a situation in which information was sought cannot involve the loss of a right to reject: because that would be inconsistent with the guiding principle in this Act that assessment of loss of right to reject is a matter of fact to be considered in all the circumstances.
As my Lord has set out, it was plainly open to the judge to reach the conclusion that he did and I would therefore equally dismiss this appeal for the same reasons as are set out by my Lord.
Order: Appeal dismissed with costs assessed in the sum of £4,200. Application to be filed within 7 days for appointment to apply to District Judge Hoffman for directions in respect of the costs below.