Purchaser of second-hand car that suffered clutch failure two months after MOT loses appeal against sheriff’s decision

About this case:

• Citation:
  [2025] SAC (Civ) 43
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal S F Murphy KC

Paul Hopkinson entered into the hire purchase agreement with Black Horse Ltd on 24 February 2022 for a BMW X-Drive vehicle first registered in March 2018. He argued that, as the sheriff had made no mention of durability in his judgment despite there being evidence on the point, he had failed to consider it appropriately.

The appeal was heard by Sheriff Principal Sean Murphy KC, with the appellant represented by Skelly, solicitor, and the respondent by Tosh, advocate.

Lifetime components

On or about 20 November 2022, the appellant’s vehicle, which had successfully passed its MOT in September of that year, suffered a failure of two of its clutch packs. These were located within a sealed transmission case, so the reason for their failure could not be ascertained and they could not be replaced. The appellant complained to the respondent and sought to reject the vehicle and to claim a refund and damages on the basis that the vehicle was not of satisfactory quality, but his complaint was rejected.

At proof before the sheriff at Dumbarton, the defender’s expert Mr Bathgate testified that the expected lifespan of a vehicle of that type was around 200,000 miles, and that as the components that failed were not serviceable items. From this, the appellant submitted that they were lifetime components which ought to have lasted as long as the rest of the vehicle.

The appellant further referred to the unreported case of McElroy v BMW Financial Services (GB) Ltd (2025), which related to a quality car which should reasonably have been expected to have lasted for longer in relation to a major component. Such a car could not reasonably be said to be durable when it required a £10,000 repair after 30,000 miles of use. Mr Bathgate’s evidence was no more than his own opinion, and the appellant could have done nothing in respect of items located within a sealed unit.

For the respondent it was submitted that purchasers of second-hand vehicles would not expect the same level of durability as a new vehicle. The failure of the clutch packs occurred nine months after delivery, and there was no evidence of the defect being present at the point of delivery. The question of whether goods were of satisfactory quality was a mixed question of fact and law, and the sheriff’s decision was correct as to both.

Contrasting position

In his decision, Sheriff Principal Murphy noted that most of the facts were agreed by the parties and added: “In his ex tempore judgment the sheriff stated that the appellant was the only witness for the pursuer at proof. He considered him to be ‘patently honest’. He had described the car as being ‘very good …perfect for our purposes’ from the time of delivery until the clutch failure occurred some nine months later. Accordingly there was no evidence led with regard to the question of durability of the vehicle other than the appellant’s own testimony that it was a quality vehicle which had suffered a major failure some nine months after delivery.”

He added: “He concluded from Mr Bathgate’s testimony and from the appellant’s own account that the car had been of satisfactory quality at time of delivery. He rejected the appellant’s argument relating to durability on the basis of Mr Bathgate’s evidence that the clutch packs were not items which might be expected to last for the overall lifespan of the vehicle.”

Considering the cases cited by the appellant to be of no real assistance, Sheriff Principal Murphy explained: “What Sheriff Reid held in McElroy was that there had been a latent defect in the timing belt of a vehicle at its time of purchase with the result that it had gradually disintegrated over time, causing an accumulation of debris in the sump which had caused the vehicle to break down. The sheriff had been able to conclude that the latent defect which had led to that failure had existed at time of delivery - and he had reached that conclusion on the basis of expert testimony from a vehicle inspector who had been led by the pursuer.”

In contrast, he said of the current case: “The real difficulty which the appellant faces in this appeal is that no evidence was led on his behalf to demonstrate that there was a latent defect present at time of delivery which led to the ultimate failure of the clutch packs in his car. In essence his argument was this: the clutch failed, that should not have happened as it was designed in such a way that it should have lasted as long as the rest of the car in a vehicle of this type, so that the court should infer that it must have had a latent defect at the time of delivery. The contrasting position lies in the evidence that the car performed well for nine months and passed an MOT inspection prior to the clutch failure.”

The Sheriff Principal concluded: “The absence of any evidence on the question of durability was fatal to the appellant’s position before the sheriff: that is a clear reason for his decision. The sheriff preferred the respondent’s position, based on the testimony of Mr Bathgate, and in the absence of any evidence being led to the contrary I cannot conclude that he was in error when he did so.”

On this basis, the appeal was therefore refused.