True Blue - I decided it was about time i had my 2 p's worth on this one!
Undoubdably I know a lot less than many people on here about elans (not all, but many!), and if Clemo thinks there is a problem, then even without seeing the car I'd bet my pension on it (i can afford to lose £30

)
However, now that a diagnosis of the state of affairs has been conducted, and we are left with a series of facts, I can throw myself into the 'conversation' with (a little bit of) authority.
There are a number of things which have concerned me throughout the 'story' so far, many of which could/will have a good explanation, but to a suspicious/cynical bugger like me, leads to some questions.
Firstly, was the car sold with any 'official' warranty? If not, the seller (as a trader) has a number of legal obligations - The first one is (as you know) the Sale of Goods Act.
Two bits of the Act may apply - obviously the item is not fit for purpose, so you are entitled to redress for this.
There is also something known as 'Loss of bargain' which basically means that, even if they offer to refund the original purchase price, you can actually claim the market price for a similar (but legal/roadworthy/none bent) item. You need to base your claim on the fact that you were offered something at what you considered to be a good price, and took advantage of the free market economy to grab a good deal.
Nowhere in the Act does it say anything about 'buyer beware' (or even the posh Latin version of caveat emptor).
Now, this may seem all well and good, but the 'Sale of Goods Act' only gives mere mortals (members of the public) Civil redress, which is a double-edged sword. On one hand the level of proof needed for success is 'on the balance of probability', so as long as your argument is better than the other guy, you will win. On the other hand, it is a lengthy process to get to a County Court, and legal fees can outweigh winnings - there is no absolute right to get your costs awarded against the loser. Often a well worded letter and a spirit of compromise gets things achieved in a better and quicker way.
Having got the wishy-washy Civil Law out of the way, we come onto my specialized subject, Criminal Law.
There appear to be a few angles of attack from what I understand, so I'll deal with them in no particular order (cos I aint that bright to do it any other way).
Section 75 of the Road Traffic Act 1988 makes it a specific offence to sell (or offer to sell) a vehicle (includes a trailer) in an unroadworthy condition. There is no mention of an MOT certificate in this part of the Act, and just because there is an MOT on the car, it makes no difference, and certainly does not guarantee ‘roadworthiness’. I have brought quite a few successful prosecutions under this section, and although it is a higher standard of proof (‘beyond reasonable doubt’) it is quite easy to prove with an ‘expert’ witness examination (your local Old Bill, or VOSA will provide the necessary report FOC if they think there is any chance of success). It doesn’t matter how much mechanical knowledge the seller has or hasn’t got, it’s a purely objective test – it’s either good enough or it isn’t! Do not be put off with the usual phrases of ‘Sold as seen’ or ‘sold without warranty’, ‘Untested’ etc etc etc on any receipt you have – they aint worth the cost of the ink, let alone the paper they’re written on!
You must be careful to differentiate between ‘unroadworthy’, ‘unfit’ ‘dangerous’ and the equally upsetting, but not altogether illegal, duff cars which are better described as ‘cosmetically challenged’, scruffy and plain old knackered!
Remember that since the RTA 1988 was written, emissions tests have been absorbed into the Act, therefore, if the engine is knackered to the extent that it can’t pass an emissions test, the vehicle is ‘unroadworthy’ for the purposes of Section 75.
It is important to fully document your actions all the way through the process, eg It wouldn’t help your Criminal or Civil case if you suspect a problem, but still use the car (and even worse, if you publicise the use on a public forum like LEC) – this obviously, doesn’t preclude reasonable use – like going to another garage or place of inspection – but if you put it on a racetrack or went for a scenic drive, your chances diminish!!!!
Keep a list of all reasonably incurred costs – it’s all recoverable at court! Includes taxi fares, fuel use, experts’ reports (They can get expensive!), loss of use, hire of other transport etc etc.
Perhaps the fact that the car was delivered by trailer and not driven down to you could be used in the argument that the dealer knew it was dangerous (even if not the actual case, it can often cast a bit of doubt!)
Then we come onto my favourite one – the one that gets most (if not all) traders reaching for their cheque books:-
Fraud
Before the beginning of this year, it would have been difficult to actually prove any sort of illegality in the dealers’ actions or omissions, as different sections of the old Acts were subject to different ‘rules’.
However, since Feb 2007, the ‘Fraud Act 2006’ has applied, and basically, he is in the $h1t if he has done, or failed to do, or omitted to do (or say) something which he has a duty to say/do/disclose in any words or actions.
By stating that the car is good, he has committed fraud. (section 2)
By providing the wrong service record, he has committed fraud. (section 2)
By removing (or selling with it removed) the CEL bulb, he has committed fraud. (section 3)
It is important to remember that for the offence to be fully made-out, there is no need for anyone to actually be deceived (unlike the old Act), just that there is an act or omission with intent to cause gain or loss. The gain or loss does not need to succeed, so long as the intent is there.
All offences under the Act are indictable (Crown Court), and therefore arrestable.
As a trader, should he be convicted of fraud, he will be shafted by everyone – not only will he (probably) get a custodial sentence, he will be banned from owning, running or holding office in any Limited company, PLC or partnership for at least 5 years. He will be banned from trading in the EU, Commonwealth, USA and many other places for 8 years. He will lose any reputation he currently has, and could end up bankrupt!!!
As the Act is new, the Police and CPS are still taking on lots of ‘test cases’ to see where the judiciary are going to draw the lines with it, but at the moment, most are getting to court.
PS – just in case I come across as a barrack-room lawyer, I have been a Police vehicle examiner (both Forensic and Accident) for 15 years, I am a qualified MOT tester and VOSA examiner, I spent 10 years as a Traffic cop (some of which was spent at the regional school, teaching). Since then I have been involved in the investigative side of Policing, including lots of Fraud and Finance jobs, (currently, I’m on the Major Crime Investigation Unit).
So, although some might say I’m an opinionated gob-shite, there are some things I do know a bit about!
Good luck.