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Monday, 27 July 2015

Ford, IBM defeat appeal over apartheid abuses -U.S. court | Reuters

Reuters reports that Ford (and IBM) have escaped liability for wrongs done to black South African workers from the 1970s to 1990s - the argument being, that the companies had responsibility for killings, torture and other abuses of human rights. The claimants had not shown that the companies engaged in enough wrongdoing to make them liable. Basically, their actions were limited to supplying equipment to the apartheid government and sharing information. The claim was brought under the Alien Tort Statute of 1879, which enables non-US citizens to claim damages in the US courts for human rights abuses committed abroad. From the reports, it seems that Frod's activity was much less obviously supportive of the regime than IBM's.

The latest judgment was an appeal court decision, and an appeal to the Supreme Court is under consideration.

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Sunday, 26 July 2015

US: Fiat Chrysler to face $105m record fine over recall failure - reports that FCA is facing a huge financial penalty and on-going supervision, following what NHTSA sees as inadequate performance over recent recalls of Jeep products. Automotive News also covers the story here.

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The benefits of TTIP to the industry - from the US side

Industry goal in trade talks: Harmonized regs - is the title of a piece in Automotive News extolling the benefits to the motor industry of the Transatlantic Trade and Investment Partnership. It's a hugely controversial piece of legislation, of course, but the motor industry can be pretty sure that as far as it's concerned the agreement would be a Good Thing, and that harmonising technical legislation would bring benefits for all concerned.

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Friday, 24 July 2015

US: FCA recalls 1.4 million vehicles to install anti-hacking software

Automotive News reports that Fiat Chrysler has recalled 1.4 million cars in the US (and the report does not exclude the possibility of it extending to other territories) to have anti-hacking software installed. It comes shortly after reports of a Jeep vehicle having been "hacked" (from Wired, here). The prospect has clearly got FCA worried, and no doubt other manufacturers are no less uneasy. The Wired article demonstrates the possible extent of the problem, and now that car hacking is a recognised issue the manufacturers are going to have to work as hard as the software industry to keep on top of it. The most recent posting on this blog reposts an article from Automotive News that reports a legislative response to the problem, placing responsibility squarely on the vehicle manufacturers.

Many times I have looked at computer contracts with slight amusement where they obediently (as required by the Unfair Contract Terms Act) exclude from any limitations on liability defects attributable to their negligence that cause death or personal injury. Nowadays, software is perfectly capable of producing those results.

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Monday, 20 July 2015

Citizens Advice impact truly remarkable | Citizens Advice blog

Citizens Advice blog informs us of the publication of an "impact report" by Citizens Advice, the charity which has shouldered a hugely increased proportion of the burden of providing advice to consumers since the Global Financial Crisis. Follow the link to read the report.

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BMW settles suit over demo vehicle warranties

Automotive News reports: "BMW of North America has settled a class-action suit on behalf of buyers of more than 104,000 dealership demo vehicles that were sold as new although the vehicles' four-year warranty periods had already begun." The manufacturer admitted no wrongdoing. The cars involved were sold between September 2006 and October 2014, and the warranties started running when they were sold to dealers as demonstrators.

The case was settled by mediation, with BMW agreeing to extend the warranty for three months and to reimburse customers who had to pay for repair costs which would have been covered.

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Sunday, 19 July 2015

Volvo Cars North American Introduces "Pay Once and Never Pay Again" Lifetime Parts & Labor Warranty

An interesting idea which, unless I am mistake, hasn't yet been used here or over in the USA before by any other manufacturers, though whenever I see the expression "lifetime warranty" I ask myself exactly what does that mean - that the goods will last for as long as they last? But in truth what this is more concerned with is making sure owners repair (as you might say) to the manufacturer's network when they need anything doing to their car, rather than actually guaranteeing the parts and labour, which increasingly should last for the lifetime of the whole car.

The closest I have found to this new idea is Vauxhall's lifetime warranty, which was on the car rather than parts (though obviously they got covered too) - but that has apparently been discontinued, and in any case only protected the first owner (so, a very narrow definition of "lifetime"). Volvo Cars of North America Media Newsroom say in their press release:
Volvo Cars of North America will now offer a lifetime parts and labor warranty for all Volvo vehicles serviced after the factory warranty at any Volvo retailer. Volvo customers can expect to pay once and never pay again for replacement Volvo parts and labor, excluding accessories and wear items, for as long as they own their car.

This addition to the Volvo Service Advantage program is part of the company’s definition of premium service, a philosophy that is designed around the customer’s needs and lifetime love of Volvo Cars. All Volvo owners can expect to receive the premium service experience when servicing at their local Volvo retailer. In addition to the lifetime parts and labor warranty, customers will receive free software updates, complimentary diagnostics, personal service, alternative transportation and a complimentary car wash.

“We look forward to redefining the way manufacturers service and support their vehicles” says Scott Doering, Vice President of Customer Service, Volvo Cars of North America, “the lifetime parts and labor warranty is a best in class offer from a luxury automaker.”

All Volvo owners are invited to experience this new definition of luxury service at their local Volvo retailer. All Volvo models are eligible for the Volvo Service Advantage program and the new lifetime parts and labor warranty.

“The lifetime parts and labor warranty is a commitment to both quality vehicles and quality customer relationships,” says Lex Kerssemakers, President and CEO of Volvo Cars of North America, “everyone should feel confident that Volvo is here to support our customers throughout the ownership of their vehicle.”
A pretty obvious way to drive business to authorised workshops, but perhaps a rather expensive one. Let's see how long it lasts, and whether anyone else imitates it. Commentators in the US appear to think that it's what Volvo need to do to address some quality problems they have had in recent years ...

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New car-buying website - how will it affect dealers?

In an article rather sensationally entitled Website plans to leave car showrooms in the dust, the Financial Times* reports the launch of a new car-buying website, Carwow (slogan: "Let car dealers compete over you"), which it describes as doing for the new car market what Expedia has done for travel. It will farm out consumers' requirements to dealers, who will make a best and final offer, and the website will take a commission of £250 from the dealer. That doesn't sound to me as if it will leave showrooms in the dust.

Bemoaning the fact that the Internet has never taken off as a platform for selling new cars, while for second-hand cars it it suggests that the Internet is very widely-used, the FT mentions the deterrent effect of the 14-day cooling-off period for distance selling transactions. Given the enormous drop in value of a car the instant it is first registered, then driven away from the dealer's premises, this is more than a deterrent: it must be almost a complete block. Add to that the fact that people still, rather quaintly, like to look at cars, sit in them, and take test drives - none of these matters for which the Internet is well-adapted - and I think you have your reason. That's not to say that online sales will never take off, just that they will remain a small proportion, for the time being at least.

Anyway, even for second-hand cars it must be true to say that the Internet is used as an advertising medium rather than an e-commerce platform, and on that basis the new-car market isn't far behind. The FT article notes other changes in the market, citing "Apple-style" outlets where consumers can look at the cars and engage with non-sales staff to learn about them before buying online (thus creating the distance-selling problems that dealers are understandably worried about).

The dealer system as we know it might be a long way from perfect, and there are surely more efficient ways to get cars to buyers, but it still seems to be the best choice for a way to handle new car sales. Will Carwow make much difference? Actually, it looks as if it might help the present dealer network model, perhaps even giving it a boost which will help it to stave off a shift towards full e-commerce. So long, of course, as it doesn't get too carried away like TrueCar in the States.

* The FT is usually a model of sober reporting, but the headline-writer has got a bit carried away here, like his or her predecessor (it can't have been the same person, it's too long ago, 30 years to be precise) who headed an editorial comment on the block exemption "Feather beds on wheels". Obviously very memorable, if it has stuck this long in mine!

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Friday, 17 July 2015

Rescission or damages in a misrep case?

Salt v Stratstone Specialist Ltd (t/a Stratstone Cadillac Newcastle) [2015] EWCA Civ 745 (16 July 2015) concerned a car sold as "brand new" when in fact it had been manufactured a couple of years earlier, and in the interim although it had not been registered had suffered significant accident damage, which had been repaired. Suffice to say that the claimant said that if he had been aware of the history he would not have bought it.

The car suffered from a classic congeries of small defects, and a year after buying it the owner purported to reject it, later issuing proceedings and taking it off the road. In May 2011 - a couple of years after proceedings were issued, and nearly 4 years after the purchase - Stratstone disclosed documents that revealed that the car had not been new when sold, and the claimant amended his claim accordingly. The district judge decided that he could not order rescission under the Misrepresentation Act 1967, because the parties could not be restored to their original position: there had been too much use of the car, and too much time had elapsed. He also took into account that the car could not be restored to unregistered condition, which seems a rather unrealistic condition to apply: it would surely make rescission unavailable in any new car case. He awarded damages, based on the value of the car at the time of the sale and the sale price. HHJ Charles Harris, to whom the first appeal went, differed from this assessment and ordered rescission. (He also awarded the claimant his costs, later amending the award so costs were to be on a more generous indemnity basis because the claimant had offered to accept £4000 in settlement.)

On appeal to the Court of Appeal, it was noted that the question of whether section 2(1) of the 1967 Act was available at all if there were a bar to rescission was "open"  at the CA level - there were authorities both ways. The court concluded that the correct view was that if rescission were not available, damages could not be awarded because they were in lieu of rescission: and in lieu of nothing must mean nothing (my words, not the court's, but you see what I mean). The Court of Appeal held that restitution was indeed possible and therefore rescission was the appropriate remedy, that damages could not adequately compensate the claimant, and that the delay was not a problem especially as it was only on disclosure that the nature of the claim became clear. All of which seems to make good sense, unfortunately for Stratstone whose employee had made such an optimistic claim about the car in the first place. It points to a need for training and caution more than anything else.

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Wednesday, 15 July 2015

Honda's U.S. auto finance arm to pay $24 million over loan pricing problems | Reuters

Honda's U.S. auto finance arm to pay $24 million over loan pricing problems | Reuters: "A U.S. auto finance arm of Honda Motor Co (7267.T) will pay $24 million in restitution over allegations that its loan pricing practices caused minority customers to pay higher interest rates than white borrowers did, U.S. regulators said on Tuesday."

This has been a controversial matter for some time, and the size of the penalty surely indicates that the authorities consider this behaviour unacceptable.

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TVR Automotive v OHMI - TVR Italia (TVR ITALIA) (Judgment) [2015] EUECJ T-398/13 (15 July 2015)

In TVR Automotive v OHMI - TVR Italia (TVR ITALIA) (Judgment) [2015] EUECJ T-398/13 (15 July 2015) the General Court held that the OHIM Board of Appeal had been wrong to conclude that there was no genuine use of the TVR trade mark at the material time (February 2007) when the application in suit was filed by the applicant, an Italian company claiming somehow (and very optimisitically) to be the successor to the business of the then-defunct British sports car manufacturer. Its trade mark comprised a TVR logo (in familiar form) with the word "Italia" appended in smaller letters.

The true successor to TVR's business opposed the application, and the Italian company demanded evidence of use. The opposition was rejected in relation to the goods for which use had been shown - which was not all the goods in the application, but it was the important ones. The Italian company appealed, and then filed for revocation. The appeal was stayed while that was sorted out. The Cancellation Division rejected the application for revocation on the grounds that genuine use had been shown, and the Italian company appealed against that, but out of time so the opposition proceedings then went ahead: the appeal was upheld, on the basis that genuine use from 28 January 2003 to 27 January 2008 had not been proved.

The case was based on the non-use of the TVR trade mark, although there appears to be no allegation that such non-use had lasted for five years: and in any case one of the trade marks involved had not even been registered for five years at the time. It received short shrift from the Court, which took a rather different view of what constitutes "genuine use" in relation to specialised, low-volume motor cars, making me wonder how the case ever got to Luxembourg in the first place.

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BVRLA calls for emergency braking action as safety rises up fleet agenda

Fleet Leasing reports BVRLA calls for emergency braking action as safety rises up fleet agenda: "The Government is being urged to incentivise the uptake of autonomous emergency braking (AEB) systems, which have the potential to significantly reduce rear-end crashes and, ultimately, save lives."

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USA: contract dispute between Autonation and Truecar

Autonation, the largest dealer group in the USA, has fallen out with TrueCar, the car-shopping website that has already been involved in legal disputes about whether it is a dealer or not. It seems from reports that Truecar demanded data from Autonation relating to more transactions than just those introduced by Truecar, and to no great surprise Autonation dug its heels on - in fact, more than that, it treated the demand as a breach of contract and announced that from the end of July the 226 of its 240 outlets that use the service would stop. Truecar responded with allegations that Autonation has been underreporting sales resulting from introductions. This one could run and run ...

Tuesday, 14 July 2015

1954 Ferrari Racer Pits Lingerie Tycoon Against Bonhams - Bloomberg Business

1954 Ferrari Racer Pits Lingerie Tycoon Against Bonhams, Bloomberg Business reports. The story concerns an ownership dispute over a Ferrari 375 Plus, the star of Bonham's auction at last year's Goodwood Festival of Speed. It probably won't make exciting new law, but it is definitely a piece of litigation of interest to the motor industry with Bonham's the auctioneers being sued and in turn suing a dealer in Paraguay - it isn't clear where the legal actions are taking place, but perhaps we'll learn more about the matter in time.

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Bodyshop fined by HSE for failure to comply with improvement notices

Bodyshop fined by HSE for failure to comply with improvement notices: "[A bodyshop proprietor from] Chesterfield, has been prosecuted by the Health and Safety Executive (HSE) for failing to comply with two improvement notices.", reports Fleet News. He was fined a total of £4,000 and ordered to pay costs of £1,600 after pleading guilty of breaching Section 33(1)(g) of the Health and Safety at Work etc. Act 1974.

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CMA to review New Cars Order

I seems like only yesterday that I was writing about the New Cars Order as if it was an old friend that I had recently met again after an interval of several years - and now I find that the Competition and Markets Authority is consulting on whether it is still needed (along with a number of other remedies set up by the CMA's predecessors, which are of less interest to the motor industry). Judging by the number of reports (small but significant) in the trade press about breaches or alleged breaches of teh Order, it still serves a useful purpose - unless one feels that what appear to be breaches should not be, of course.

Responses should be received by 5pm on Friday 28 August 2015, by email or in writing to:

Review of monopoly remedies
Competition and Markets Authority
7 th Floor North Victoria House
37 Southampton Row
London WC1B 4AD


Let them know how you feel about it!

Thursday, 9 July 2015

Wednesday, 8 July 2015

AA welcomes move to simplify insurance legislation - Car Dealer Magazine

AA welcomes move to simplify insurance legislation - Car Dealer Magazine: "AA Cars has welcomed the final simplification and little-noticed change of legislation concerning motor insurance certificates, brought about by the Deregulation Act, which came into force yesterday"

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US: Michigan Chevy store wins dispute with customer over $10,000 down payment

Michigan Chevy store wins dispute with customer over $10,000 down payment: "A suburban Detroit Chevrolet dealership is entitled to the $10,000 down payment it failed to collect from a customer on a vehicle sale, but it can’t recoup attorney fees from him, the Michigan Court of Appeals has ruled."

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Budget 2015: Vehicle Excise Duty reform for new cars - BBC News

Budget 2015: Vehicle Excise Duty reform for new cars - BBC News: "New Vehicle Excise Duty (VED) bands are to be introduced, with revenues eventually going towards a new Roads Fund, the chancellor has announced."

Read the SMMT's take here. They express 'considerable concern' about the changes.

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France to unify electric vehicle-charging networks-paper | Reuters

France to unify electric vehicle-charging networks-paper | Reuters: "The French government plans to impose the interoperability of the country's various electric vehicle-charging networks by decree before the end of this year, financial daily Les Echos reported on Monday."

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NFDA's dispute and resolution service receives accreditation - Car Dealer Magazine

NFDA's dispute and resolution service receives accreditation - Car Dealer Magazine: "The National Franchised Dealers Association’s Alternative Disputes Resolution Service (ADR) has received approval from the Chartered Trading Standards Institute (TSI). The service is independently run by the National Conciliation Service (NCS)."

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More than 10 million illegal tyres on British roads

More than 10 million illegal tyres on British roads, Fleet News tells us:

"More than a quarter of drivers had an illegal tyre on their vehicle at the time they were replaced, according to results from a survey conducted by TyreSafe in partnership with Highways England."

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Transport Secretary signs new Uninsured Drivers’ Agreement

The Motor Insurers’ Bureau has announced the implementation of a new Uninsured Drivers’
Agreement which will come into force for accidents occurring on or after 1 August 2015.
The 1999 Uninsured Drivers’ Agreement and prior Agreements still continue to be in force for accidents
occurring before 1 August 2015. The new one simplifies the arrangement and aligns it with EU law. The press release goes on:

The Uninsured Drivers’ Agreement provides a framework within which the MIB provides compensation
to innocent victims of accidents with uninsured drivers in Great Britain. The Agreement is made with
the Secretary of State for Transport and is reviewed periodically to incorporate any necessary changes. 
The current Uninsured Drivers’ Agreement has been in operation for the past 16 years. A review was
carried out in partnership with the Department for Transport (DfT), which conducted a consultation in
2013 with a range of claimant and insurer stakeholders. The new Agreement now reflects: 
 Changes to domestic and EU law
 Developments in case law
 Changes in MIB working practices
 A simplification or deletion of some clauses 
Some of the principal changes are: 
 Simplified notice provisions, involving the mandatory joinder of MIB into proceedings as a
named party from the outset.
 The passenger knowledge exclusions have been amended in several ways: 
o The current wording “ought to have known” has been replaced by “had reason to
believe”. This better reflects the legal position following White v White and also follows
the wording in the Road Traffic Act 1988.
o The exclusion relating to passenger knowledge of use in furtherance of a crime is
deleted as a result of Delaney v Secretary of State 2015. In addition, the related clause dealing with knowledge of escaping from or avoiding lawful apprehension is also
 The formal incorporation of the £1m property damage limit from the Supplementary
Agreement, together with wording as to how to apply the limit, if claims are received from an
accident which total more than the limit.
 In the clause dealing with “other sources of recovery”, not only are true subrogated claims
excluded, but also claims where the claimant has other sources of redress available to him. If,
for example, the claimant has a comprehensive insurance policy available to cover the cost of
repair to his vehicle, then MIB will not be able to pay that cost.
 The Agreement has been extended to recognise the common practise of settlement of a
claimants claim using a form of assignment.
Ashton West, Chief Executive at MIB commentated: “Following on from the review various changes and
improvements were made and the new Agreement is now easier to understand and better reflects the
world we live in today. Obviously there have been a myriad of changes over the past 16 years, in
particular to domestic and EU law. What hasn’t changed though is our promise to deliver a prompt,
open and fair service to everyone we deal with.
“We are now turning our attention to completing the review of the Untraced Agreement and working
with the DfT to produce a new text. In the meantime, a Supplementary Agreement comes into force for
accidents on or after 1 August 2015. This harmonises the two Agreements in relation to the issues dealt
with by the Delaney case, and also in respect of ‘other sources of recovery’.”
The supplementary Untraced Agreement, the new Uninsured Agreement, Notes for Guidance and a
Correlation Table easily highlighting the differences between the 1999 and new Agreement can be
found on the MIB’s website at The Government’s response to the consultation can be
found at 

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Brazil watchdog names Takata, Autoliv in price-fixing probe | Reuters

Brazil watchdog names Takata, Autoliv in price-fixing probe | Reuters: "Brazil's antitrust watchdog has opened an investigation into a suspected cartel involving local units of Japanese auto parts maker Takata Corp and Swedish-American rival Autoliv Inc, citing potential price collusion in safety belts, airbags and steering wheels."

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Monday, 6 July 2015

Chinese copies: now it's Porsche Macan - Automotive World

Automotive World reports that Chinese car-maker Zotye has produced a new SUV that looks very like a Porsche Macan. (There are many images, and other reports in the motoring press, which you will find with a Google or other search.)

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Thursday, 2 July 2015

BMW v Deenik appears on BAILII after 16 years

Bayerische Motorenwerke AG v Deenik [1999] EUECJ C-63/97 (23 February 1999) EU:C:1999:82, [1999] ECR I-905, [1999] EUECJ C-63/97, ECLI:EU:C:1999:82, [1999] ETMR 339, which is perhaps more celebrated as a trade marks case than specifically a motor industry one, has just appeared on the free online resource BAILII, here. It is, however, concerned with the use of a car manufacturer's trade mark to announce that a garage is specialised in servicing the manufacturer's products. The Court's interpretation was that such use of the trade mark was OK provided it did not suggest that there is a commercial connection between manufacturer and garage, in particular that the garage is part of the manufacturer's network or that there is some special relationship between them. That, of course, was then, and this is now, and whether the sales-servicing schism imposed by the block exemption in the interim, and the emergence of authorised repairers who may be selected qualitatively but not quantitatively, makes any difference is an interesting question - though I suspect the answer is that it makes no difference.

Volume 14 number 10

The latest edition of Motor Law is now on its way to subscribers by post, and electronic subscribers have already received the download link. If you haven't, or if you would like to in future, please let me know.