Sheriff Appeal Court: Alan King V Black Horse Limited + Park's (Ayr) Limited

The Sheriff Appeal Court (SAC) recently considered whether a hirer under a hire purchase agreement was entitled to rely upon his rejection of a motor vehicle when he had continued to use the vehicle after rejecting it.

Background

Black Horse supplied Mr King with a motor vehicle under a hire purchase agreement in June 2019. In October 2020, Mr King sent an email to Black Horse claiming that the car was not of satisfactory quality and was not fit for purpose. Black Horse disagreed and Mr King commenced proceedings against Black Horse arguing that, under section 9 of the Consumer Rights Act 2015 (CRA), he was entitled to reject the car supplied to him.

During the litigation in Kilmarnock Sheriff Court, the supplying dealer, Park's (Ayr) Limited, was brought in as a third party. This was on the basis that, if Mr King was entitled to reject the car, Black Horse would have a right of relief against Park's. However, Black Horse also argued that Mr King had continued to use the vehicle after he informed Black Horse that he wished to reject it. It was not disputed that Mr King had driven some 6,231 miles in the period October 2020 to November 2021. Black Horse moved for summary decree (judgment) on the basis that the Pursuer was barred (estopped) from rejecting the car because of his continued use of it. The court found for Black Horse and granted summary decree against Mr King. Mr King appealed to the Sheriff Appeal Court.

The Appeal Hearing

The SAC confirmed the long standing rule that a person cannot use goods after rejecting them. In quoting a case from 1898, the SAC noted that to allow a party to reject goods and then continue to use them "would be a very strange theory of law". The CRA did nothing to change that rule. Whilst the concept of personal bar may apply in certain circumstances under the CRA, such circumstances were not present in this case. In addition, the SAC rejected Mr King's argument that to impose personal bar on a consumer in these circumstances would impose a significant burden which would be disproportionate and would not be consistent with the CRA, which was designed to give clear and simple rules for consumer protection.

The SAC refused the appeal, found that the sheriff at Kilmarnock Sheriff Court was correct to grant summary decree against Mr King, dismissed the action against Black Horse and found Mr King liable to Black Horse in the expenses of the appeal.

What does the decision mean for finance companies and motor retailers?

This is a useful decision for motor finance companies and motor retailers where the vehicle is supplied under the CRA. It confirms that the hirer or buyer cannot purport to reject a car and then continue to use it. Enquiries should be made to ascertain if a consumer is continuing to use a vehicle after seeking to reject it. It will also be interesting to see how those acting on behalf of consumers respond. We are already seeing claims where consumers, unable to use a vehicle and unable to finance a replacement until their rejection has been accepted, are seeking the costs of a replacement vehicle on credit hire terms. This will undoubtedly increase the complexity, and expense, of such actions. It is understood that Mr King will ask the SAC for permission to appeal to the Inner House of the Court of Session so it may be some time before the final position becomes known in this case.