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hi all

Can i just have a bit of a moan please...:)

ive got a Pro Ceed 59 Plate 2009 and done 32,000 mile in it .. im not a boy racer and a steady driver ... then 2 weeks ago while i was 10 miles away from my house and it was 11pm i couldnt get my car out of gear ... so instead of waiting for a hour for rac to come i phoned my friend to come and towe me to the nearest arrage which was around the corner from my house and left my car there as it was un drive able ... then he had a look and said your clutch has gone and need a new one ... well i dont think it was covered by warrenty due to waer and tear... so then i had a £400 bill for it but he said have a look at it and it wasnt due to wear and tear the middle plate which is held on by 4 rivits ..2 of them had popped out so i then phoned up Kia customer services and they said no money back becase you didnt bring it to the dealer to be fixed .. i said it was 11pm and i was at least 25 miles away from my nearest dealer and all he could say was you should get break down cover and to bring it to the dealers ... at 11pm while no one is there and leave it there as well... id have no car left.. so now im out of pocket and dont know what to do .. it was a fault in the part not due to my driving..!!!

any surgestions guys what to do... :(
 

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Only Kia dealers can do warranty repairs, its as simple as that, its in the manual. Your recovery service should have taken it to the nearest Kia dealer the next day.

We had a Mondeo that broke down at night, Ford dealer was of course closed, the RAC took it away to a safe place and took it to the Ford garage next morning who fixed it FOC.

You cannot blame Kia when you did not adhere to the warranty requirements.
 

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Only Kia dealers can do warranty repairs, its as simple as that, its in the manual. Your recovery service should have taken it to the nearest Kia dealer the next day.

You cannot blame Kia when you did not adhere to the warranty requirements.
Actually in UK Law you can. A lot of people on here do not understand UK Contract Law and how it applies to warranties.

Having seen this subject mis-explained several times I have decided to write a long explanation.

Just because there is a condition in the terms and condition of the warranty which forms part of the Contract you have with Kia DOES NOT make it so that this is an absolute requirement.

There are 3 legal concepts that apply in consideration of whether you or Kia can enforce a contract clause (i.e. any of the Terms and Conditions which are contract clauses) these are, in order of importance:

1.Materiality
2.The reasonable Person Test
3.The Unfair Terms in Consumer Contracts Regulations 1999

Materiality

For either party claim that the other has breached a contract clause they have too prove that such a breach is material i.e. the breach is important. For instance assume I sign a contract that I will pay you £5 on Wed or you can take my house, but I actually I pay you £5 on Thur. If you take me to Court to try and enforce the contract, I will argue that getting the money a day late was not “Material” as it made little or no difference to you and made little difference to what the intent of the contract was. I will win this in court.

So to take a Kia example if is says I must change the oil at 20,000 miles and I do not do it and the engine seizes up then Kia can rightly refuse to pay a claim because it was Material to the problem that I did not change the oil. If however I do not do it and the rear windows fall out and Kia refuse to do the repair, I could go to Court and argue that my breach of the contract (not changing the oil) was not Material to the the claim for the Windows, which is was not unless Kia could prove it was (unlikely?) and I would win even though I did not get the car serviced correctly.

In summary you cannot refuse a claim under a contract because ANY clause has been breached by the other party, you have to prove that breaching the clause was directly significant.

The Reasonable Person Test

When a Court reviews any contract and tries to make sense of how it should be interpreted they will try and use the test of “What would a reasonable person do”. So again to use an extreme example if my terms and conditions says “You must change your oil at 20,000 miles” so I do, I change it with some old oil of the right grade that has been drained from my Tractor and then when the car breaks down Kia refuse to repair it and I go to court. The Court will ask what “How would a reasonable person interpret the requirement to change the oil”. The Court will rule that a reasonable person will interpret that requirement to change the oil for NEW oil not OLD oil. So although I have followed the contract to the letter and changed the oil I will still likely lose.

So to take a Kia example if the Terms and Condition say you must take the car to a Kia dealer for repairs and your car breaks down in the middle of the night miles away from a Kia dealer and you therefore take it to a nearby garage, a court would ask was this what a Reasonable Person would do. And if it was then Kia would lose in Court.

The Unfair Terms in Consumer Contracts Regulations 1999

If a contract contains Terms and Conditions that in a particular circumstance are Unfair ( a court will judge if they are unfair) then those Terms and Conditions will be ruled void, however the remainder of the contract will remain in force. So again if a Contract says I must change my oil at 20,000 mile using not just a specific grade but a specific brand that is only available 500 miles away. I could choose to breach this clause and use a different brand and if the car manufacturer tried to void the warranty I could ask a Court to declare that this was an unfair condition and to strike it out. (However I would also claim it was not material and I had acted as a Reasonable Person would do).
 

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So to deal with fatfaz's question.

I assume that a 2009 vehicle like my 2010 one only had one year of Kia provided vehicle recovery and that this had expired. (This is important). So taking my explanation above:

1. The Clutch was broken and had to be repaired (you may have to prove it was broken) and this would have been the same regardless of which garage it went to. It was therefore not Material in UK Contract Law that it was not repaired at a Kia garage, and Kia cannot avoid their warranty responsibilities due to you using a 3rd party garage.

2. The car broke down late at night and miles away from a Kia dealer, needed to be moved and Kia do not provide any free recovery to a dealer. Therefore by having a friend tow you to a nearby garage where the car was repaired was what a "reasonable person" would do in that circumstance. If you put this matter before the court you could be confident a court would rule that you had acted as a Reasonable Person.

3. Given that Kia does not provide free recovery, the dealer was closed and far away, and it was late at night then in this circumstance it was an unfair requirement that the car was taken to a Kia dealer and you are therefore entitled to ignore this requirement under the Unfair Terms in Consumer Contracts Regulations 1999.

What I would do now is WRITE (not email or phone) to the Managing Director of Kia UK (ring customer services and ask for her/his name and address), send the letter recorded delivery stating your claim again and drawing Kia's attention to the 3 points above which you should include in your letter. In my opinion you should also state that if Kia does not honour the warranty then you will have no option but to pursue the claim in the County Court. You can decide at later date if you really want to go to the small claims court.

Your claims is £400, and a claim in the County Court will cost £100. It will cost Kia more than £500 to get their corporate lawyers even to respond to your letter (and it will cost them thousands for their corporate lawyers to have to pitch up at your local court) so they should see that it will be much cheaper to settle. However, I would note that although you paid £400 if Kia show that they pay their dealers a smaller amount to replace a clutch then you will have to accept this lower amount as a claim for a higher amount would fail.

I would also note that if your vehicle did still qualify for Kia's free breakdown recovery then your claim is much much weaker.
 

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Kia breakdown in the UK is only 1st 12 months.

Think a claim in small claims court is £200 now and I did not think either party could have professional representation.
 

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Small claims court does not actually exist. It is simply a claim at the County Court using the Small Claims track and the limit is £5000 and legal representation is optional as it is in all courts. However legal expenses are limited in this track (and also the Fast Track, limit 50k). It is highly unlikly that a corporate would not use a lawyer as a Judgement using the small claims track has the same impact as any civil court judgement.

Sent from my ZTE-BLADE using AutoGuide App
 

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Just found this on line, very different to the system that was previously in use, no idea if its replaced it, but the limit is not £5000 and the fees are not a standard £200.

https://www.gov.uk/make-court-claim-for-money/overview

Still think you would loose since you did not give Kia the oportunity to carry out the repair but you may think its worth a £35 on-line punt.
Its the new on-line system and for up to 5k (small claims track in the County Court) its £100. You need to stay below £5k as then you avoid a claim for costs. But they new system does give you lower costs for even smaller amounts.

But NO I don't think he should go to court yet. He should write to them as suggested and give them a chance to respond or make an offer. Court is the last option. If he goes to Court now it would be rightly chucked out has he has not given them a chance. As minimum he needs to write recorded deliver and give them time to respond, but the threat of County Court may help focus the mind.
 
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