Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH NUMBER39
A609/07	OPINION OF LORD MATTHEWS in the cause CMS SCOTLAND LTD Pursuers; against ING LEASE (UK) LIMITED Defenders: and MANN ISLAND FINANCE LIMITED Third Party: ­­­­­­­­­­­­­­­­­________________

Pursuers: Smith, QC; McClure Naismith

Defenders and Third Party: Watt; Morton Fraser LLP and RSC Solicitors respectively

17 March 2010

Background

[1] This case called before me as a Proof before Answer.

[2] On 23 October 2006 the pursuers and the defenders entered into a hire purchase agreement in connection with the purchase of a Bentley Azure convertible motor car, the cash price being £227,410.65. The vehicle was delivered to the pursuers at the premises of the supplier in Edinburgh, the defenders having purchased the vehicle from the third party under a contract dated 29 September 2006 for the same price. The third party are financiers.

[3] The pursuers aver that the vehicle was not of satisfactory quality. It is said that shortly after they took delivery of it, the mechanically operated roof jammed and it required to be returned for repair under warranty. After it was returned to the pursuers it is said to have suffered a complete failure of the braking system while being driven. At the beginning of the proof Mr Smith sought to amend the pleadings by deleting the word "complete" but he dropped that motion on the basis that he might return to it later.

[4] In answer it is averred that in about May 2007 the pursuers returned the car to Bentley Glasgow, complaining of a defect, and it was found that there was a leak in the rear shock absorber unit. The necessary repair work was completed and the shock absorbers were in good working order. After the pursuers ultimately returned the car to the defenders, having rejected it, it was examined and found to have suffered minor damage in the course of use but otherwise was in satisfactory condition. A fail-safe system would operate in the event of there being any defect in the brakes, the car being fitted with a dual tandem brake system, and it was inherently unlikely that the car would suffer from a catastrophic brake failure. At no time did the pursuers inform the defenders or the suppliers of any problem with the roof.

[5] The pursuers claim that the vehicle was not fit for its purpose and was unsafe. By letter dated 18 May 2007, their solicitors rejected the vehicle on their behalf and rescinded the contract. The car was uplifted by the defenders without prejudice to their rights in respect of the dispute.

[6] The defenders claim that if the vehicle was not of satisfactory quality they are entitled to relief from the third party.

[7] They also aver that, prior to the purported rescission of the contract by the pursuers, their managing director had intimated that he did not like the car and wished to change it for a Rolls Royce.

[8] The pursuers seek repayment of the sums of money they have paid in respect of the car, namely a deposit of £56,000, instalment payments amounting to £24,854.52 and an acceptance fee of £250.

Evidence
[9] The first witness for the pursuers, who were haulage contractors and property developers, was their managing director, Mr James Gerard Gaffney. He said that he had had around six Bentleys before the purchase of the one in question. Generally speaking he had various problems with it. The electrically operated hood sometimes jammed and would not come down and sometimes jammed half-way up. It was taken to Bentley and they repaired it, saying that it was a teething problem. The car had been supplied by Bentleys in Edinburgh but there was a dealership not far from his house known as Bentleys in Hamilton, a division of the Parks Group. The problem arose in about the second week after the witness had the car and after each repair the hood would work again for a time. However, it had to go in ten or twelve times because of the problem.

[10] He was never billed for the work, since it was done under warranty, and there was never any job sheet filled out. He agreed with the third party, who said that the car was recalled in February 2007 because of a problem with wheel bolts and insulation was fitted to the boot. It went to Edinburgh and was away for ten days. There was water in the boot and they tried to seal the top of the boot's lid. The witness went on to say that the car would not start on a few occasions and had to be re-programmed but Mr Smith did not pursue that line for which there was no Record, objection having been taken.

[11] There was a problem with the brakes but he did not remember exact dates and times. He said that he was driving the car by himself on the M74 at around 60-70mph. The first indication of a problem was when a light came on. It was shaped like a brake drum. There had been other electrical problems and the last thing he thought of was that there was an actual brake malfunction. He was coming off the slip road to go home to Bothwell. He applied the brakes and the pedal went further down than it should. He pumped the pedal as if he was bleeding the system and the pedal came up but it travelled back down and something was seriously wrong. He took the car out of "drive" and put it into third gear, then second gear. He was asked whether there was any braking at all and he said that on the first occasion when he pumped it two or three times there was some braking but not very much. He could not have stopped the car using the brakes. He was lucky with the traffic lights at the bottom of the slip road and he managed to get home. When he got home he stopped the vehicle by putting it into "park". He repeated that there was only any braking the first time he pumped the pedal but there was very little. Then the pedal went straight to the floor and there was nothing. His house was about half a mile away from the slip road and he drove there at 10-15mph in first gear.

[12] His firm had around 200 vehicles and he phoned the manager to come over, thinking that the brake pipes had been cut. The manager, Martin McGettigan, came over and the two of them looked at the problem. The witness was a time-served mechanic himself. There was hydraulic fluid at the nearside back wheel. They lifted the bonnet and looked at the reserve to find that there was no fluid in it. It was a dual system, suspension and braking being fed off the one reservoir. The car was settling down on its arches because of the lack of suspension fluid. They took the vehicle to Parks on their own recovery vehicle and he told the people there about the braking problem. They said that they would investigate. It was put onto a ramp and the mechanic saw the fluid at the rear back wheel. He was flabbergasted and said "I don't believe this". The mechanic thought that the fluid was coming from a "banjo" bolt or a leaking shock absorber but did not confirm the diagnosis at that stage. The car was left there. Bentley got back in touch and said that there had been a problem with the suspension and braking system and the car was ready. 7/3 was a computer printout from Bentley Glasgow which bore to be a warranty invoice, the date and tax points being 10 May 2007. The driver was described as Mr T Gaffney, 10 Allanshaw Gardens, Hamilton but there is no doubt that the document referred to this car. The document indicates that work was carried out under warranty. The car was checked and it was found that the near-side rear shocker was leaking. It was stripped out and renewed and the system was bled. It goes on to say "all okay now, duel (sic) system".

[13] The document indicates that Mr Gaffney was served by someone called Russell Graham and the mileage at the time was 527 miles.

[14] After all this he said that he spoke to the service engineer and said that there had been a complete brake failure. He had no confidence in the car. It had been a nightmare. The company had bought over 200 vehicles and they had never had a problem like this. He discussed the matter with Bentley and they said it would go back to the factory. They thought the vehicle was all right. However, they said that every time it went in but it was not. He consulted solicitors on the basis that he did not think that the vehicle was fit for its purpose and a letter was in due course sent to the defenders. The vehicle was then sold by the defenders. He was looking for return of his deposit and the payments which he had made. He was asked what standard of vehicle he was expecting to get. He said that it was a new model that had just come out and they were thin on the ground. There had been a cancelled order and he was telephoned about it. He was over the moon with the car and its appearance and he would still have the car had everything been fine. He had never had a problem before with a Bentley. The hood problem had perhaps resolved itself but he was still terrified to put it down in case it did not come back up again. A friend of his had a similar problem but his had been put right. He was asked whether his lack of confidence only extended to the braking and he said that he had no confidence in the car at all. He was asked whether he had ever driven it after the brakes were fixed and he said he took it to Edinburgh where it came from. It was there about ten times. It was the braking that made him decide that enough was enough because he had four young children and he was not having them going into that car.

[15] In cross-examination it was put to him that he was interested in purchasing the car in about September 2006 but he could not remember the date. He agreed that a pre-delivery inspection was carried out and finance was put in place. He signed an HP agreement on 23 October 2006 on behalf of the pursuers. Shortly after that the vehicle was picked up. He agreed that the first indication in the documentation that anything was wrong related to a recall at the end of February 2007. The manufacturers contacted him to bring it in in order to change the wheel bolts. His position was it was only recalled for the wheels but the boot had water in it. It was suggested that there was a campaign on to fit insulation in the boot because it got so hot that cosmetics were melted and he did not disagree with that, though he did not seem to know anything about it.

[16] Reference was made to 22/3/2 of process, a job card in connection with the recall. It appears that the vehicle went in on 27 February 2007 and it went out the same day. He did not remember if those dates were correct but had no reason to think otherwise. The document refers to replacing the wheel bolts as per the recall campaign and also refers to insulating the luggage area. The mileage at that time was 340 miles. When he first purchased it there would have been perhaps up to 7 miles or so on it, certainly less than 50. He and his wife would drive the car between October and February. He never experienced any problem with the wheel bolts or, unsurprisingly, any problem with melting cosmetics.

[17] He was aware that those who worked on the car under warranty would create a job card which would generate an invoice so that they could be paid. 22/4/1 was such an invoice dated 2 March 2007 and relating to the recall campaign. Incidentally, it indicates that wheel bolts and the insulation were part of a campaign. The invoice is fairly detailed and sets out all the work done and the parts which were supplied.

[18] He was asked whether he was surprised that there was never any record of any work done on the hood. He said that there were no parts supplied, the hood being merely reprogrammed. They were good customers of Parks and he would take the vehicle in and just ask them to fix it. Whether they rendered an invoice was a matter for them.

[19] He agreed that around 7 March 2007 or perhaps later on into April he was dissatisfied with the vehicle and that around that time he spoke to Richard Stewart, the sales manager for Bentley. He said that Mr Stewart was the manager for Bentley Edinburgh rather than Bentley Glasgow. It was suggested that he told Mr Stewart that he was dissatisfied because the vehicle was too low and he denied that suggestion, expressing some incredulity. That was his sixth or seventh Bentley and they were all about the same height. He agreed that he asked Mr Stewart for a price to part exchange the vehicle for a Rolls Royce. It was suggested that he was offered a price of £180,000 but he denied receiving any price at all. He did ask about a swap because he was sick of the car. It was not fit for purpose but they did not face the facts. They were thinking of sending the car back to Crewe where the Bentley factory was. It was suggested that they were interested in doing a deal and they exposed the vehicle for sale in a showroom on his behalf. He accepted that he left the vehicle there but not for sale. They were waiting for someone from the factory to check the car and they would neither answer the phone nor return his calls. He wanted satisfaction but they were not trying to accommodate him. Whether or not they tried to sell the vehicle, he did not know. All he could say was that the car was left in Edinburgh. He agreed that some time in mid-April he collected the vehicle. At the end of April 2007, because of the fault, it was back in Edinburgh. The mileage as at 10 May 2007 was 527 per 7/3 of process, having gone up from 349 at the end of February, and it was suggested that he had been driving the car. He said that it went to Edinburgh. He did not think that he drove it on any one day without a problem.

[20] At all events the problem at the end of April was the braking. He agreed that in due course the rear near side shock absorber was replaced and the hydraulic system would have been topped up. The "damper" referred to in 7/3 was a shock absorber and the "central HYD system, F" was the fluid. He did not remember the names of the technicians he spoke to when the car was taken in. It was a Saturday and the place was closing, with a bank holiday coming up on the Monday. The technicians said that they would look at it and one of them thought that there was a leak coming from a shock absorber. He said that it was a substantial leak and denied a suggestion that the leak was not too bad. He agreed that the car had been driven from the car park onto a ramp. He rejected as nonsense a suggestion that the brakes had not failed. It was also nonsense to suggest that the Bentley technician found the brakes working properly when he drove the car onto the ramp. He said that there was a problem with the steering, it being "jerky". There was air in the system because of the fluid drainage. It was suggested to him that the technician was unaware of any steering problem and he said that he put his foot on the brake and it travelled to the floor. They opened up another Bentley and pressed the pedal and it did not move an inch. He, Mr McGettigan and the mechanic were there. It was suggested to him that the technician said the car was not "leaning" and again he professed some difficulty with the question. He agreed that it was not leaning to one side and said that it was all sitting down. He disagreed with a suggestion that the technician did not feel it was sitting down at a low level as a result of fluid loss. He was clear that the brake pedal went down to the floor.

[21] It was put to him that he told someone called Peter Gentles that there had been a total brake failure. He recalled telling him that the brakes had failed but he did not remember saying that it was total. It was suggested that Mr Gentles' reaction was that the brakes had not failed and he said that he did not remember that. He did not say that. He told him about the dual system but would have been non-committal. He was flying the Bentley flag and he understood that. He was asked again whether the brake failure was total and he said perhaps there was about 5-10% of braking.

[22] He agreed that the vehicle was in for work on the shock absorber on 10 May 2007 or thereby and the work was done. He was told that the vehicle was fixed and he collected it and took it away.

[23] The car weighed around 3000 kilos and its top speed was said to be close to 200 mph. The consequences were obviously potentially lethal if the brakes failed at speed. It was put to him that it was implausible that he should take the vehicle away after the shock absorbers were fixed if the brakes had failed as he had said they had done. However he said that the vehicle was road tested and he drove it to his house. The vehicle was rejected by letter dated 17 May 2007. That was some 19 days after it went into the garage for the brake problem. In the meantime he had taken it away. He denied telling someone called Gary Bagley of Bentley that the brakes had failed twice. The only reason he was speaking to Gary Bagley was in connection with the registration plate which had been on a vehicle he had traded in and which they had lost. He had been invited to a meeting with their insurers and his solicitor. During the course of that meeting he told Mr Bagley that he was going to intimate to the finance company that he was rejecting the vehicle and that his solicitor would be in contact. Between 28 April and 17 May he was trying to get in touch with Bentley but getting no satisfaction and was also discussing with his solicitor the best course of action.

[24] 22/2/1 was the letter from his solicitors, McClure Naismith, rejecting the vehicle. It was dated 18 May 2007 and inter alia said the following:

"The vehicle has been returned to the dealers on several occasions to allow them to address various problems. The most recent and most serious problem which has been experienced is a catastrophic brake failure."

He agreed with that description of the symptoms. He also agreed that it had been returned to the dealers on various occasions. He did not see the letter before it was sent out but he agreed with its terms.

[25] The vehicle was collected by the defenders on 2 July 2007. 22/3/3 was a job card for Bentley Edinburgh showing a mileage of 835 and confirming that certain checks were carried out. It was put to him that around 300 miles had been driven from the date of rejection and the inspection and he said that the vehicle had been damaged by his son's bike and had to be taken to Carlisle to be repaired before it went back to the defenders.

[26] In terms of finance he was paying monthly instalments of around £4,100 up to and including April 2007. The May instalment was stopped. It was suggested to him that the car nonetheless remained in his possession until July. He said that he contacted the people and told them what they were doing, at least his solicitor did. He was only following procedures. It was driven because the damage had to be fixed and they were fully insured. He agreed that when it was returned to Bentley on 2 July 2007 a check was carried out, reference being made to 22/3/4, a checklist.

[27] Mr Smith at this point indicated that he was prepared to agree that the vehicle was checked and found to be in order. The witness agreed with Mr Watt that a check on 6 July found the vehicle, including the brakes and hood, to be in order and a further check on a road test on 18 October found that the brakes were in order as well as the hood. He said that he would have put up with the hood had it not been for the brakes. Again it was put to him that there was no record of any work on the hood having been carried out and he said that they fixed it. It was suggested that it was not in their interests to carry out work on a vehicle which was under warranty without generating invoices and that if there was a problem with the hood it was not so significant that he required to take it into the garage. He denied this.

[28] In re-examination it was put to him that the suggestion appeared to be that he was making up his evidence about braking and he said that it did happen. I was referred to 22/2/1, the letter of 18 May 2007 from his solicitors. Amongst other things that letter was in the following terms:

"We understand that the vehicle is being collected by Edinburgh Bentley today, you should make any future arrangements for custody of the vehicle with them."

22/2/4 contained an email of 26 June 2007 addressed to Mr Craik, his solicitor. It was from another firm of solicitors and indicated that the vehicle was being collected from the pursuers' address at 10am by a named individual. It appeared from that that it was due to be collected on 27 June. That was his recollection of how things were panning out.

[29] As far as 7/3 was concerned, he said that the vehicle was in the premises for about a week or so and it was only about a week or so after the date of the invoice (7/3) that his solicitor was rejecting the vehicle. Mr Smith then explored with the witness the question of the lost registration plate. After that matter was resolved the question of the Bentley came up. He said that he was asked what he was doing with the car and he said that he was rejecting it. They were messing him about from pillar to post. His solicitor Mr Craik was there at the time.

[30] The next witness for the pursuers was Mr Martin McGettigan who was employed by a firm by the name of Martin Tipper Hire Limited in Bellshill. That was a company owned by Mr Gaffney. He was the fleet engineer and had been employed there for about five years. He said that Mr Gaffney phoned him and sounded quite distressed. There was a problem with the brakes. He was asked to go and see the car and give his professional opinion. He looked after over 100 vehicles and was a qualified mechanic. So was Mr Gaffney. Mr Gaffney said, as far as he could remember, that he was on the motorway and had to come off. The pedal went all the way to the floor and there were no brakes. This was all said to him on the phone. The yard where he was working was about five minutes from Mr Gaffney's house. He saw the Bentley and noticed that there was fluid at the rear nearside wheel. It was immediately obvious. Mr Gaffney had a monoblock driveway and he saw a damp patch but he did not physically go down to see exactly where the fluid was coming from. He started the engine and put the vehicle into drive, moving it around two yards. The pedal went to the floor. He opened up the bonnet and the reservoirs were empty. As soon as he put the pedal right down he realised that the vehicle was not going to stop. He put it into neutral and put the handbrake on. He repeated that the reservoirs were completely empty. As he put it, the brakes were "non-functional at all". He told Mr Gaffney straight away that he could not drive it and that it needed to go back to Bentley. He was not being asked to fix it himself. He took it back to Bentley on the back of a recovery vehicle, which he drove to Parks in Hamilton and Mr Gaffney went with him. He took the vehicle off the loader in the yard and thought that he spoke to a mechanic to say that the brakes were non-existent. He saw the vehicle being taken inside and it was driven around 15-20 metres. It was more nursed in than driven, at a snail's pace. The technician put the car onto the ramp and raised it, and as he did so the fluid could be seen dripping from the same spot. He did not see exactly where the fluid was coming from. He could not remember word for word what the mechanic said but the latter went straight to where the fluid was leaking from. The mechanic showed them another Bentley in the yard. The witness was explaining about the pedal going straight to the floor and the mechanic said that maybe it was a Bentley thing. He went to try another car to see how the pedal worked and the pedal was solid. The car was not started at the time. He was 100% clear that the pedals on the two cars felt different. He was also in no doubt that the pedal on the Bentley in question had gone. He thought that the mechanic was trying to say that it was a Bentley thing and that was why he was going to the other car and he was playing along with the mechanic. He told the other mechanic that the pedal in the second Bentley was solid but he did not remember the mechanic's response. He was asked if there was any connection between the braking system and the suspension and he said that he believed it was a dual system. The same fluid serviced the hydraulic suspension and the brakes. Hydraulic oil was needed in order to have braking and if there was no fluid then the brakes would be non-existent.

[31] After that he and Mr Gaffney went away and he did not see the Bentley again.

[32] In cross-examination he agreed that he had mainly worked on commercial vehicles for the last ten years and his experience of the Bentley Azure was limited. There was no doubt that the pedal went to the floor. It was put to him that that was far from the truth but he disagreed. It was also put to him that after the car was driven into the garage at Parks, the technician found no problem with the brakes but he said that that was not the case. It was suggested that that might explain why he was asked to look at another Bentley and he said that he knew when a brake was a brake. He went into the other car and that was how a brake should feel. The brakes in the Bentley were not like that. It was suggested that the mechanic was trying to persuade him that there was no problem by showing him another car and he said he could not answer that. He agreed that it was unlikely that it would have persuaded him that Bentleys were supplied without working brakes. He had no personal knowledge of what happened before he had arrived at Mr Gaffney's house. He took it for granted that his distress was because of the brakes. If there had been nothing wrong with the brakes he would not have taken the car in. He agreed that some fluid was found at the house and that caused some concern. If, allied to that, he was told that the brakes had failed he agreed that that might have been sufficient to persuade him to take the vehicle in. He denied a suggestion that he tested the brakes and simply found them slightly less efficient than expected. The brakes were non-existent.

[33] A Joint Minute was then read agreeing certain formal matters such as the dates of the agreement and the sums paid by the various parties and the pursuers' case was closed.

[34] The first witness for the defenders was Garry Bagley, the managing director of Bentley Edinburgh. The company were manufacturer approved retailers of new and used Bentleys. It was a separate entity from Bentley itself and they were part of a larger group. The vehicle had been supplied by the second third party.

[35] He had been involved in the motor industry for some 33 years and trained as a mechanic before moving into a managerial position. He had been the managing director for ten years. Bentley Glasgow were based in Hamilton at Parks. They were authorised repairers and were licensed to repair under warranty. They charged for the work by sending to the manufacturers an invoice for labour and parts.

[36] 23/3/2 was a job card in relation to a campaign for the replacement of wheel bolts. It would be generated when the vehicle was brought in and the date on it was 27 February 2007. He said that there would be a "clocking" on the back which indicated when the work was done but the copy in court did not have it. He then said that the work would have been done on the date of the invoice. Before delivery the car would have had a pre-delivery inspection. The car was bought on 4 October 2006 and the mileage in March was 349, which was taken from the milometer.

[37] 22/4/1 was the warranty invoice dated 7 March 2007 in relation to the campaign work. He was asked if that corresponded to the date the work was carried out and he said it related to the date the work was claimed for. That was not the date the work was carried out. That contradicted his previous position, which was probably based on a misunderstanding. 7 March 2007 was the date which would go on the warranty history of the car and that history would appear on the dealer's management system, which was computerised. Their system would not have details of work done by all Bentley dealers but that should be on the mainframe held by Bentley GB and they would have access to it. Thus if Bentley in Glasgow had carried out work under warranty then it should be on the warranty history if they claimed for it. He was asked if it was normal to create an invoice before the work was carried out and he said that it was. However, he corrected himself and said that was not the case. In fact, a job card was created before the work was carried out. A job card was created, the customer signed it if he was there when the vehicle came, and the vehicle would then be worked on, after which the invoice would be created. Thereafter, a claim would be made for the work online. The job card was dated 27 February 2007 and that was the date the car would have arrived in Edinburgh. The date on the invoice (7 March 2007) was the date of the claim to Bentley. All the labour and the parts involved were recorded on it. It was the normal practice of Bentley Edinburgh to carry out repairs under warranty and create a record of it. Otherwise they would not be able to get paid.

[38] The vehicle in question was delivered to the customer in late October 2006.

[39] After the recall repairs it was taken away. He had heard of a conversation that took place between Mr Gaffney and Richard Stewart, Mr Stewart being the former general sales manager of Bentley Edinburgh. According to Mr Stewart, Mr Gaffney was saying that he and his partner were unhappy with the Bentley because it was too low and he had enquired about trading in the car for a Rolls Royce Phantom. The next thing that happened was that Bentley Edinburgh attempted to source a Rolls Royce Phantom through a sister branch. The witness himself had some involvement with that. The price was not discussed with him but between Mr Stewart and Mr Gaffney. He was, though, involved in discussions with Mr Stewart, vis a vis the price, which were contemporaneous with the discussions between Mr Stewart and Mr Gaffney. They had been able to source a Rolls Royce Phantom down south for £180,000. As it happened the matter was not taken any further. Mr Gaffney must have decided that he did not want to go ahead and there were no further discussions. The vehicle did not come back to Bentley Edinburgh thereafter under Mr Gaffney's ownership.

[40] On 17 May 2007 he met Mr Gaffney and his solicitor. The main meeting was in connection with the registration plate which had been sold. At the very end of the meeting Mr Gaffney's solicitor indicated that he wished to reject the vehicle under the Sale of Goods Act on the basis of brake failure.

[41] 22/3/1 contained an email written by the witness to an Alan Pretsel and dated 14 June 2007. In the second paragraph it referred to the meeting on 17 May. The third paragraph is in the following terms:

"He arrived with his unannounced solicitor acting on his behalf in relation to this dispute, once the dispute was settled and agreed that day his solicitor proceeded to advise me that he has written to the finance company advising that on behalf of Mr Gaffney he is rejecting the car under the sale of goods act and would like 'all his money back - please'!" (sic)

The email goes on:

"I enquired as to what grounds to which Mr Gaffney responded that he has had brake failure twice and that the roof doesn't work intermittently, he went on to state that Peter Gentles (After sales manager at Bentley Glasgow) advised him that it was impossible for the brakes to fail as the Azure is designed with a dual (tandem) brake system and that the (sic) would always be a secondary brake working in the event of a failure - Mr Gaffney then went on to state that he is a time-served 'plant' technician and he knows that that's 'just a lot of crap'!" The witness said that that was what happened at the meeting.

The email then goes on:

"I went on to advise that I was totally unaware that there a problem had existed (sic) and that the car had been in for repair with Bentley Glasgow to which the solicitor appeared perplexed - he then asked me had we not had the car here in Edinburgh to which I replied no, this is the first time I have heard anything of any fault with the car since we carried out a recall on March 6, 2007.

After the recall was completed Mr Gaffney stated to Richard Stewart that he hated the car and wanted out of it and to get him the price to part exchange against a Rolls Royce Phantom. The part exchange price later was given to Mr Gaffney was £180k (sic), Mr Gaffney was left to think about it and approximately 10 days later said he was coming through to collect his Bentley - he then called again later asking for it to be driven back to him in Glasgow. I stated to the solicitor that on these grounds we would not accept a rejection of Mr Gaffney's vehicle as 'he didn't have a legal right to do so'!"

The witness said that that was what happened.

[42] In cross-examination he indicated that he was quite clear that Mr Gaffney said the brakes had failed twice. As far as the part exchange on the Rolls Royce was concerned, he said that to the best of his recollection the discussions were some time in April. It was put to him that Mr Gaffney's position was that he was interested in a Rolls Royce after the brake problem and the witness was asked if he was saying that these discussions were earlier than that. Again he said that to the best of his recollection it was some time in April.

[43] He was referred to the email which said that the discussions took place "after the recall was completed". The suggestion that Mr Gaffney and his partner hated the Rolls Royce was not something which was said at the meeting. This was something which Mr Gaffney had said to Richard Stewart and was some time after the recall. The reference to hating the car was a reference to hating it because it was too low. It was put to him that Mr Gaffney said that it was after a series of problems, including the brake failure, that he wanted rid of the car and he was waiting for a price which was never produced. The witness could not dispute that. He was asked whether a garage might do some minor work on a car without claiming it under warranty and he said that that was not the procedure. They might do if they were just blowing up a tyre.

[44] A Bentley was one of the best vehicles in the world and cost a lot of money. He agreed that if a person had to keep coming back ten or twelve times with a fault in the hood they would not be very proud of the Bentley brand. It was suggested that if one factored in the recall that would make it worse but he said that the recall was a separate issue. He could not tell how long the Bentley was in the garage when the recall work was being attended to. It would have been available for collection no later than after the vehicle was invoiced. He thought that it was unlikely that it was in for a week. . According to the job card the work would only take about one hour twenty minutes The parts would have been available before the work was done. It took a week to raise the invoice because that was a clerical matter. He could not, however, dispute Mr Gaffney's account that it was in for some days. He agreed that if there was a problem with the hood and there was then a recall and then it was discovered that there was a fluid leak all in a short space of time, it was not what one would expect from Bentley. He also agreed that if there was a total brake failure coming off the motorway then that would be unacceptable for a Bentley. There was a fail-safe mechanism but nonetheless if there was a total brake failure then that was unacceptable.

[45] The next witness was John Cherry, the after sales manager at Bentley Edinburgh. He had been in the motor business for around 30 years. He was aware of the Bentley. A gentleman called Robert Vass carried out a pre-delivery inspection before it went out. There was a checklist which had to be followed and it included looking at the brakes and the hood. There were no faults with either of these. The vehicle was recalled in around March 2007. There was a campaign and also a recall. The campaign dealt with putting insulation below the carpet in the boot area to reduce the amount of warmth transferring from the exhaust to the boot because it possibly melted cosmetics or chocolate. He had never come across the cosmetics problem personally. A campaign was something which was dealt with if the vehicle was in for some other specific purpose. The recall was safety driven. They were duty bound to contact the owners when there was a recall. There was no particular problem with the wheel bolts but the job was carried out to ensure that the problem did not develop. He thought that the vehicle was in for the recall for a couple of days but he did not remember exactly. He had no further dealings with the vehicle between the end of March and the beginning of July 2007. He did not remember it coming back but he heard that it had a fluid leak from the rear.

[56] It came back for a check on 2 July. 22/3/3 was a job card from Bentley Edinburgh, when 835 miles were on the clock. He created the job card. From recollection they were asked to check the car over. It was something to do with the finance company. He did not check it personally. There was some additional work noted on it but that was written by the technician working on the car. The checks to be done included the suspension, the brakes and the operation of the convertible hood. The additional work related to a loose trim, some damage to the nearside front wheel, and some paint scratches. It was noted that an early life service was not done, that the main battery was a bit low and that there was a slight clicking on the steering column.

[57] 23/3/4 was a pre-owned motor car preparation checklist dated 2 July 2007, which was when the check would have been carried out. Someone called V. Archibald inspected the car and the hood and brakes were found to be satisfactory. The brakes were tested during a road test.

[58] On 6 July he was present when the vehicle was tested at Wilson's Car Auctions in Ayrshire. He was asked to go along and it was tested by someone from a company by the name of TNT Technical Services. The hood was tested by operating it and there were no faults. He drove the vehicle and the brakes were found to be in order.

[59] He was asked in cross-examination why he tested the brakes. He drove it himself because the person from TNT was not sure if he was insured but it was all being done because TNT had been asked to do a thorough check.

[60] The next witness was David John Bellamy, a qualified inspector of motor vehicles. His CV and qualifications are set out in his report, 7/6 of process. He had been involved in the field since 1974 and ran his own company for around 15 years. He inspected some 5-15 vehicles a week and was plainly well qualified. Over the years he had inspected a number of Rolls Royces and Bentleys. This particular car was the first of the very latest models of the Azure he had inspected. There were some technical innovations but the braking and suspension systems remained the same.

[61] The mileage, when he inspected the car, was 855. He was asked to carry out a number of specific checks as set out at paragraph 2 on page 2. In particular he was asked to see if there was any evidence of a catastrophic brake failure having occurred, if there was any evidence of there having been any problems with the brakes, whether the convertible hood worked satisfactorily, whether there was any evidence of any repair work to the hood or any other repairs and whether there were any outstanding problems with the vehicle and if so, how they had arisen. There were other matters which he had to report on but I need not concern myself with those.

[62] He took a number of photographs of the vehicle. It showed the vehicle standing on the road. A roadside inspection was carried out rather than under workshop conditions. He said that if there was something wrong with the brakes a warning light would come on.

[63] He carried out a visual inspection but the vehicle was not on a ramp. He also carried out a road test in the auction premises and he was able to get up to at least 30mph. He drove round for three or four miles to get the temperature up so that he could check the hydraulic system. He also tested the brakes. He pressed the pedal to see if it stopped and it did. He also tested the ABS system and that was found to be in order. He also carried out checks of the levels of the hydraulic system.

[64] At this point Mr Smith indicated that he had no problem with agreeing that the vehicle was in tip top condition when Mr Bellamy inspected it.

[65] Paragraph 14 of his report was read. It dealt with an engine examination. It was necessary to remove the engine cover to gain access to the fluid reservoirs. This could be seen in photographs 16 and 17, the latter being a photograph in the handbook. The hydraulic system is in the top right hand corner with a silver cap and the brake system is in a white plastic reservoir at the side of and below it. The driver's information panel was showing in photograph 6 and in the handbook in photograph 20. It gave instant warning to the driver of any problems which might occur. Other warning signs were shown in photograph 21. As far as the low brake pressure warning was concerned the handbook indicated as follows:

"Illustration of this panel indicates an inadequate reserve of hydraulic pressure. If BRAKE is illuminated and STOP is extinguished the car may be driven taking care to allow for an increase in stopping distances. Consult an Authorised Bentley retailer as soon as possible. If STOP is illuminated the car must not be driven. Consult an Authorised Bentley dealer immediately."

The low brake pressure warning light consists of an exclamation mark within a circle with two curved lines on either side of the circle. The witness said that there was no problem with the coolant, the engine oil or the brake fluid.

[66] The brake fluid and the hydraulic fluid were two separate things and the shock absorbers were serviced by the latter. The report at the fifth bullet point at page 4 runs as follows:

"My checks of engine coolant, engine oil and brake fluid showed no problems, but it was necessary to drive the vehicle around the Auction premises, which is quite large, until the fluid in the central hydraulic system was up to a temperature of approximately 77C. I then turned the ignition switch to the Accessories position and depressed and released the footbrake pedal until 'brake pressure' came on as a warning light. I then checked the fluid level and found that it was just visible below the mesh filter."

[67] He said that he pumped the brakes out and got rid of the pressure in the hydraulic system. There is no pressure in the braking system. It is dormant ready for the hydraulic system to give it pressure.

[68] The hydraulic fluid level is just below the mesh in photograph 16. It cannot be seen in the photograph but if it is filled up to the appropriate level, which is just below the mesh, it can be seen if the person looking knows what he is looking for. If there was not sufficient fluid in it then the warning light would come on.

[69] There were no defects in the steering or suspension. The rear nearside shock absorber had been replaced and could be seen to be cleaner than its counterpart on the left. The brakes were in working order, from the visual inspection.

[70] He checked the operation of the hood six times over a period of time. The inspection itself lasted a couple of hours and the hood was in working order.

[71] He was satisfied that the vehicle was in a fully safe and roadworthy condition, subject to a number of snagging problems with which this case is not concerned. He said that he would expect Trade bids for the vehicle to be in the region of £170,000 to £180,000, inclusive of VAT.

[72] His conclusions were then read. These are as follows:

"25. In line with my instructions I have been asked if there is any evidence of a catastrophic brake failure having occurred with this vehicle. In response to that question I have no documentary evidence and, in my considered opinion, it is reasonable to state that this would be unlikely given the failsafe devices built into the braking system of this vehicle.

26. The service brake (foot pedal) is achieved by the driver applying a force to the brake pedal which then receives auxiliary assist. This operates a push rod directly to the piston in the tandem master cylinder. This controls the entire braking operation delivering a force at the pedal by the driver through to the brake callipers via the hydraulic fluid, which in turn acts on the brake pads forcing the friction material surface onto the brake disc surfaces.

27. The braking system reservoir shown in DJB18, is connected to the tandem master cylinder and the level of brake fluid compensates for the effects of brake lining/pad wear.

28. As a failsafe feature, in the event of a failure of the supply of pressurised hydraulic fluid, the direct mechanical connection between the dual master cylinder and the brake pedal will allow the driver to operate the brakes as a non-powered system with a degree of braking dependant upon the pressure exerted on the pedal by the driver's foot.

29. In respect of the central hydraulic system, this provides hydraulic power for the power steering unit, the self-levelling suspension system and the brake hydraulic booster. When the driver exerts force on the brake pedal, hydraulic fluid stored under pressure in the hydraulic accumulator is transmitted to the push rod on the tandem master cylinder and hence the brakes are applied.

30. As a failsafe feature, in the event of the failure of the supply of pressurised hydraulic oil, the direct mechanical connection between the driver, the brake pedal and the tandem master cylinder is still present, but the hydraulic accumulator ensures that there is sufficient pressurised hydraulic oil to enable the vehicle to be braked several times with full power assistance.

31. A parking brake installed within the rear brakes of the vehicle is mechanically activated through cables and is additional braking.

32. Finally, fluid loss from any system results in an immediate warning to the driver in the form of a signal on the driver information panel. With so many safeguards in place a 'catastrophic brake failure' would be a very unlikely situation.

33. In respect of the convertible/cabriolet hood, I found this to be in full working order and there were no obvious signs of any work having been carried out to the mechanism.

34. In respect of the rear suspension, on or about the 10^th May 2007 when the vehicle had recorded 527 miles, Bentley Glasgow found a leak from the nearside rear shock absorber unit which necessitated replacement under Warranty. This defective suspension part would not have caused a catastrophic brake failure...

36. To the best of my knowledge, there are no inherent problems with this Bentley vehicle although I do understand that wheel nuts and their replacements have featured recently and I will investigate this further."

[73] When he was asked what he meant by catastrophic brake failure he discussed crashing into a wall at 100mph. What it meant really was a complete failure of the braking system. Brake failure would be pretty catastrophic anyway. Hydraulic fluid provided assistance to press the brake pedal. He explained how braking systems worked. One would press the pedal, which produced pressure on the tandem master cylinder, and then brake fluid under pressure was transferred through the brake pipe to the brakes. Pressure was built up in the brake calliper and that squeezed the brake pads onto the discs. All cars had that system. Braking was assisted over and above that. In conventional cars there was servo assistance derived from the engine vacuum. The Bentley in question had hydraulic assistance. Hydraulic pressure assisted in the braking process but there was no connection in terms of fluid between the hydraulic system and the braking system. Hydraulics provided assistance in pressing the pedal. In the absence of any hydraulic assistance, there was still a functioning braking system as described previously. If a brake pipe was cut then a brake balance valve cut off the brake fluid to that particular pipe but there was still a working braking system in respect of the other three wheels. If all four were cut, then all brake fluid would be completely lost. There would, however, be a warning on the dashboard. This had nothing to do with the hydraulics. The hydraulic system provided a helping hand. When the pedal was pressed, hydraulic fluid was transmitted to the push rod on the tandem master cylinder helping the brakes to be applied. The helping hand came from two hydraulic pumps driven by the engine. Hydraulic fluid at around 1000 psi was pumped to a device called the accumulator which contained nitrogen, which was intrinsically at 1000 psi. Adding the hydraulic fluid at 1000 psi meant that assistance was provided to the tune of 2000 psi. The nitrogen provided half the pressure and the hydraulic fluid which was pumped in provided the other half. Nitrogen was stored inside the accumulator and would not escape. When the pedal was pressed the force generated helped to operate the brakes and to bring the car to a standstill. When the pedal was pressed in an emergency stop massive assistance was needed to stop it. Hydraulic fluid was a necessary segment of that assistance. Sensors told the hydraulic system when the pedal was pressed. He was asked to assume that there was a flaw in the hydraulic system in connection with the shock absorber which was leaking. In this connection he referred to paragraph 29. If there was a leak from the shock absorber, that would affect the force available to assist but there was still nitrogen in the accumulator, and one would still be able to brake the vehicle. The only way a complete failure of the hydraulic system could occur would be if the hydraulic fluid poured out of the reservoir because of a leak, but, in the first place, there would be a warning on the dashboard. Secondly, there would still be assistance from the hydraulic fluid. A failure in the hydraulic system would never cause the car to lose braking altogether. The main braking system would still work. One would have to press the pedal harder but the brakes would still be there. Assuming that there was a leak of hydraulic fluid to the point where the warning light came on and a brake warning as well, one would still be able to stop the car. Hydraulic fluid would be getting lost but there would still be stored energy in the accumulator. If all the fluid leaked out eventually the stop light would come on, as I understood him. All of this took a long time however and would possibly take 40-50 applications of the brake, ignoring the fact that the dashboard would say "STOP". He said that the car could never run out of brakes or suffer a catastrophic brake failure related to a hydraulic system failure. It was impossible in relation to hydraulics. The principle braking system could fail for some other reason. One of the things the hydraulic fluid did was to assist the power steering. If the vehicle suffered a significant loss of hydraulic fluid then that would be affected. After the accumulator was empty it would become heavy but one could still steer the vehicle. The suspension was set at a particular height and if the power steering was lost then the vehicle would be at a different height.

[74] In cross-examination he was asked again what he meant by catastrophic brake failure and he said that he had no real idea. He had never come across a catastrophic brake failure in a Mercedes, BMW, Rolls Royce or Bentley or indeed any vehicle unless it was caused by vandalism. What he had in contemplation was a total brake failure. He repeated that the hydraulic system was a helping hand. If there was a leak from a shock absorber, assuming it was going long enough, the hydraulic system could have lost a good part of its efficiency. That, however, ignored the fact that a warning light would come on. Assuming the vehicle was on the motorway and a leak occurred and there were 40-50 applications of the brake he was asked what the position would be. Assuming the whole system was evacuated with no pressure from the hydraulic system, then there would be no help from the nitrogen because there was no help from the balancing fluid which was lost.

[75] He explained that when he pressed the brake 20 or so times, as he had done, that dissipated the pressure. When the engine is not on there is no pumping mechanism to keep the pressure up. He said that he had never driven a vehicle of that type only using the braking system. It was suggested to him that he would not know how it might feel to drive such a vehicle which had lost hydraulic fluid and it was suggested that it would feel very different. He said that it would need progressively harder brake pressure to stop the car. When all the helping hand was gone, the driver would be aware of that, and would notice the difference in the brakes every time they were applied. He agreed that pretty hefty pressure would be needed to bring the car to a standstill. He was asked how the pedal would feel. He said that it would not feel spongy. It would feel harder to press it when there was no fluid left to assist. The engine would still be running and if the fluid system was totally empty it would be harder to press the brake. The pedal would not travel any further. It would not go as far and would not have 2000 psi helping one to press it.

[76] It seemed to me that that was an important piece in evidence. He had not personally experienced the phenomenon but repeated that with no assistance the pedal would be hard. That ran directly counter to the experience claimed by Mr Gaffney and his mechanic.

[77] 7/3 was referred to. That was the invoice from Bentley Glasgow in connection with the shock absorber repair. He noted that two litres of fluid went in. The reservoir held over three litres so it appeared that it was not empty, assuming the technician filled it up. It would have been negligent of him not to do so.

[78] He agreed that if the shock absorber was failing the pressure would to some extent dissipate. He was asked whether he was saying that as long as there was a litre of fluid in the system there would still be full power in the hydraulic system. He said that there had to be. As long as the pump fitted to the engine was getting fluid it would provide pressure for the whole system. It was suggested that it might spray out of the hole in the shock absorber. He said that if there was still one litre the engine would still pump it until it all disappeared out of the hole. He was asked whether it was impossible for the brakes to have suffered a significant failure. In his opinion it could not have suffered catastrophic failure and it did not suffer a significant failure.

[79] In re-examination he was asked whether the pressure dissipated into the atmosphere when the engine was off and the brake was pumped. He said that it did. The pressure dissipated and this was how one tested the brake warning system. He was talking about a force dissipating. Every time he pressed the pedal the master cylinder compressed the brake fluid. When he released it the energy was lost. He agreed that he said that if there was a total failure of the hydraulic system the pedal would have been hard. There would have been very little movement. Even if the hole in the shock absorber was a small one fluid would still have leaked from it. As long, however, as there was sufficient fluid in the reservoir to go to the engine pump there would still be hydraulic pressure.

[80] He was referred to 7/3 of process again. Bleeding the system meant bleeding of air not fluid.

[81] The next witness was Peter Gentles. He was the after sales manager at Parks of Hamilton, trading as Bentley Glasgow. Amongst other things, he managed the business which dealt with repairs under warranty. That process was documented. A job card was filled in generally and signed by the customer. If the repair was genuinely one under warranty then an invoice would be sent online. He was asked to assume a new Bentley with a hood defect, and was asked whether that would be dealt with under warranty. He said it depended what it was. A flat battery was the problem in 9 out of 10 cases. The hood was one of the first things to go when the battery was flat. It would go flat if the vehicle was unattended for 2-4 weeks. He was asked whether it would be dealt with under warranty if the vehicle came back on a number of occasions and he said that that depended on the circumstances. He was asked specifically about what would happen if it came back on ten or so separate occasions. He said that there was now a process in place to deal with a repetition of the same problem. That would be registered and action would be taken. That system came into place some time during the last year but he was unable to say exactly when. As far as a problem with programming in the hood was concerned, that would be put out to a technician who knew how to do it. He did not know himself how to do it. He was asked whether that was more serious than a low battery and he said again that it depended on the circumstances. He was only aware of one repair to this car namely that to the shock absorber, although it was in on one occasion for a flat battery. He did not remember when that occasion was and there was no record for it. They would not be paid for a flat battery under warranty. He had no recollection of the vehicle coming in 10 or 12 times and he was quite positive that it had not done. Another two of his colleagues were coming to give evidence and amongst the three of them they would have known about it. The vehicle came in for the shock absorber problem on a Saturday when he was off. His colleague Russell Graham dealt with it. He did not remember the date although it was at the end of April and they had the car for about a week. Mr Gaffney came in a couple of times. He told Mr Gentles that the brakes had failed and he wanted an explanation. His response to it was that it was unlikely that there was total failure. Never in his 38 year history with Bentley had he come across a total failure. He was referred to 7/3, the invoice in connection with the shock absorber, dated 10 May 2007. He said that that was the date the claim would be made under warranty. It had to be made within 15 days of the work on the car being finished. He was himself a qualified mechanic.

[82] In cross-examination he said that he thought Mr Gaffney mentioned a catastrophic brake failure but he did not record the conversation and it was some time ago. Mr Gaffney was trying to convey that the brakes had totally failed. There was a problem with the rear nearside shock absorber. The hydraulic system served the suspension, power steering and the assistance with braking. When asked whether a failure in the hydraulic system could affect the assistance to braking he said that it would affect the steering first. The reservoir held 3.2 litres and only two had needed to be put in. In addition, the vehicle was level, according to the technician. He was asked again whether the defect could affect the assistance to the braking and he said that it could have an effect. It would not cause total failure. If there was low pressure there were warning systems which would operate before anything happened. It was agreed that a suggestion by a customer that there was a problem with a Bentley's braking system would be something which Bentley would be concerned about. Mr Gaffney was an occasional customer, not a regular one. He had had a couple of Bentleys before.

[83] He was then referred to the email, No 22/3/1. At page 2 of the document Mr Cherry wrote the following:

"As requested, I have spoken to Peter Gentles at Bentley Glasgow, reference Mr Gaffney's car. The car was received 28.04.07 due to a fluid leak at one of the rear wheel(s). The fault was diagnosed as a leaking rear shock absorber, the part was ordered but was on back order from the factory. The part was obtained, fitted and reported as ready for collection on 4.05.07. When he visited the dealership during the week to check on the progress, during a conversation with Peter Gentles, Mr Gaffney suggested that the car had suffered total brake failure, Peter remembers commenting that the car had a duel (sic) system brake system and as such it would be unlikely that this could occur, that any fluid leak could have a possible effect, but unlikely to cause failure."

He agreed that that summed up his position.

[84] The last sentence of that email read as follows: "Prior to the car being worked on on this occasion the car was at Bentley Glasgow for the rectification of a flat battery, this was done FOC and no record on dates etc were made."(sic)

[85] He agreed that there might be occasions when a car would come in and work would be done on it with no record being kept. He did not remember if the car had been in because of the hood. He was sure that a job card would have been raised but if there was a flat battery then it was unlikely that there would have been. He could not speak for everyone who was there. One technician, by the name of Stevenson, had left. He was not aware that he carried out any work on the car but he could not say 100% that it was not brought in. As far as the shock absorber was concerned, that was not something to be expected of a vehicle of the quality of a Bentley. It was suggested that if £200,000 was paid for the Bentley the customer might perhaps be justifiably irritated and he agreed with that but said that that was what a warranty was for. A Bentley was a top quality vehicle, it was hand built and it was subject to a pre-delivery inspection, which was rigorous. He agreed that one of the most important things for a driver was to have confidence in the braking system. He was asked if the suspension was equally important and he said that brakes were more important but all of the components which were in contact with the road were important.

[86] In re-examination he said that he would know if the vehicle was in on 10 or 12 occasions. There were only four bays in the workshop.

[87] The next witness was Russell Graham, who worked in the Bentley Glasgow Parts Department. He was there when the Bentley came in on 28 April 2007 on the back of a transporter. The owner and an associate followed in behind. He asked why they were there and Mr Gaffney said that the brakes had failed. He did not see the vehicle go into the workshop but saw it when it was on the ramp. His mechanic, Derek Ferrar, Mr Gaffney and his associate were there. The technician told him where a fault had been found. There was a leak coming from the rear nearside shock absorber. He was not technically qualified himself but could see fluid outside the shock absorber. He did not do anything to try to show how Bentley brakes worked but the technician did. Two litre bottles of fluid were charged out of the parts department.

[88] In cross-examination he confirmed that Mr Gaffney said to him that the brakes had failed. As far as he recalled matters, Mr Gaffney had said something about having been driving along and trying to brake only to find that the pedal went really really low to the floor and he had difficulty stopping the vehicle. He was quite agitated about it and rightly so, according to the witness, given the cost of the vehicle. In fact Mr Gaffney swore a little bit. He was asked if Mr Gaffney was distressed and he thought that there was some concern. A brake failure was not something one would expect in any vehicle never mind a Bentley. There were only three Bentleys of the type in Scotland at the time. He was not aware of a previous case of a leaking shock absorber from his garage's perspective. When the repair was done he was in the dealership but he was not in the workshop. The mechanic who carried it out was someone called Ian McFadyen. He was still with them at Parks. He would be the best person to say what he did. He was pretty sure that bottles of fluid contained a litre. He was not aware of the vehicle having been brought in before. He said that, as far as Bentleys were concerned, the continental range with the convertible hood occasionally had hood problems, the reason most commonly being a flat battery. Hoods needed a great deal of power. Even when the engine was switched off a number of units still remained running. One could fit a retrofit charger which switched itself on and off to keep the battery charged. That would be plugged into the mains. There were usually two batteries in the car.

[89] In re-examination, he was asked when he found out that Mr McFadyen had done the repair. He said that it was only in the last few days when they were aware of the case and the job card was looked at to see who carried it out.

[90] The next witness was Derek Neil Ferrar. He had been a technician with Bentley Glasgow since May 2000. He was at work on 20 April 2007 when the Bentley came in on the back of a lorry and he drove it from the lorry into the workshop. He did not notice anything unusual about it in terms of its performance. The steering, suspension and brakes all seemed all right. He did not notice anything much about it at all when he was driving it. The distance driven was 100 yards at a maximum and he drove it at 5mph maximum or "car park speed" as he put it. Before getting into the car he had been told that there was some sort of fluid loss or brake failure or something. It was Mr Graham who told him that. At that time he had not yet seen the customer.

[91] He put the vehicle onto a ramp and had no concerns about the braking system as he drove it on. The brake fluid reservoir was clear and he could see that it was full. He then went on to check the hydraulic fluid. He depressurised the system by pressing the brake pedal 20 or 30 times until it went solid. That would raise the level in the reservoir and it could be seen. One would then check the gauze to see if there was any fluid slightly above it. In this case there was no fluid above the gauze so he topped it up. He thought that it took perhaps one quarter to one half of a litre at that point but he did not remember exactly. If one looked into the reservoir without depressurising it one would simply see the gauze. The level would be lower than the gauze even if the reservoir was full. Then he started the car up to pressurise it again before raising the ramp.

[92] He thought he was on his own at that stage. There was a visible leak from the passenger side rear shock absorber. It was wet and there were slight drips coming off it. The engine was running to keep the pressure up. He was joined by the customer and another chap. They wanted to see what was wrong with the vehicle and he showed them the shock absorber. He did not discuss the condition of the vehicle and how it was performing, as far as he could remember, and he was not at any stage "flabbergasted" by what he saw. It was a Saturday and repairs were not carried out that day. He could not say when they were carried out but he did not do them himself. He thought it was Mr McFadyen who did them. The hydraulic system held, he thought, 3-4 litres of fluid. He did not see any warning lights when he drove the car. They would come on immediately if the fluid was low and would wait for the engine to warm up. At most, a bottle of hydraulic fluid would contain a litre.

[93] In cross-examination, he confirmed that he was made aware by Mr Graham that there was some complaint about the brakes. He was asked whether he drove the vehicle carefully and he said that he was pretty cautious. He supposed that it was fair to say that he nursed the vehicle in. He reiterated that he did not remember any warning lights going on and that the reservoir would have taken between one quarter and one half of a litre of fluid. He was asked why the warning lights did not go on if about a sixth of the capacity was missing and he said that he was perhaps inaccurate in assessing how much fluid he had put in. It was not something that he measured but nonetheless it still needed topping up. There was a job card for the inspection and he thought that the amount of fluid put in would have been on the job card and on any invoice. He was asked whether he remembered very much about the conversations he had with Mr Gaffney and he said that he and Mr Gaffney discussed the brakes. He remembered showing him the brakes and the pipes because Mr Gaffney was concerned that there was a brake leak but there was not. They went to another model on which the Azure was based and felt the brake pedal. There was no difference between the two cars. The man with Mr Gaffney was of the same mind. At that time the reservoir had been topped up but it had not been low enough before being topped up to have affected the pedal. It would have to have been empty before that happened. He agreed that, whether he was right or wrong, Mr Gaffney was complaining that he felt that the brake had not been working properly. Mr Gaffney was annoyed but that was to be expected. The witness would have been annoyed as well given that it was an expensive car. If it was broken in any way one would be annoyed. As far as the shock absorber was concerned, he thought that there was an internal failure of a seal. The shock absorber at the rear was upside down and the fluid would leak down the way. He was not aware of that particular vehicle having been brought in because of the hood. He never saw it before for a hood failure but he thought that it had been in perhaps a couple of times because of a flat battery. Mr Watt tendered an objection to this on the basis that there was no Record for a flat battery but evidence had been led about this already in the case without objection and I repelled the objection. The witness agreed that if the battery was not at its best then that could affect the hood. Flat batteries often affected Bentleys because they were not used every day.

[94] At that point Mr Watt moved me to allow the addition of a late witness, namely Mr McFadyen, the mechanic who apparently dealt with the shock absorber. He indicated that it was only that morning that this man's identity had become known to those instructing him, their previous understanding having been that the mechanic who had carried out the work had left the employment of Bentley Glasgow and could not be traced. Mr Smith opposed this on the basis that it came far too late. It would have been an easy matter to have asked Mr Graham who it was who had done the work. Mr Graham had been precognosced and he had answered the question without any difficulty that morning. The defenders had been aware that the car was rejected in May 2007 and it was only now that this information was forthcoming. Mr Smith was ready to proceed shortly to his submissions and was concerned that the case would crawl into another day at least if this motion was granted.

[95] Mr Watt said that the information that the mechanic could not be traced had come from witnesses from Bentley. Mr Ferrar had indicated that the mechanic in question was someone who had left, while Mr Graham had not expressed a view on it.

[96] The situation was plainly unsatisfactory, Mr Graham and Mr Ferrar having been added as late witnesses, without opposition. Nonetheless, in order to ensure that substantial justice was done as far as possible, I decided to exercise my discretion in favour of allowing the witness to be added to the list. It looked as if around half a day was going to be lost and I indicated that that was a matter which would sound in expenses.

[97] That afternoon Mr McFadyen duly turned up. He was a Bentley technician with 25 years experience and he repaired the Bentley, his instructions coming from a job card. He put in a new shock absorber, filled the reservoir and started the engine. He then bled the system of excess air. After that he topped up the levels. He thought that roughly a bottle and a half was used and he topped it up. In fact the fluid came in tins with about a litre in each.

[98] He looked at the old shock absorber when the engine was off. It was leaking but it was not a major leak. He said that they never poured out fluid and just leaked very slowly. Once he finished he road tested the car to make sure it was satisfactory then he put it back on the ramp to see if there were any other leaks before rechecking the fluid level. All was in order.

[99] There was no cross-examination of this witness.

Submissions for the pursuers

[100] Mr Smith helpfully provided a set of written submissions. He sought decree as concluded for, the sums being agreed in the Joint Minute. He also sought interest from the date of citation.

[101] He submitted that the background was generally agreed. The contract of hire purchase was entered into on 23 October 2006 and the total price was £227,410.65. Condescendence 3 set out the implied term of satisfactory quality under the Supply of Goods (Implied Terms) Act 1973. That was admitted by the defenders and the third party.

[102] Disputes had arisen in connection with the jamming hood and the complete failure of the braking system.

[103] The defenders pled, inter alia, that it was unlikely that there was a catastrophic brake failure but one needed not to be exercised about the use of that word or the word "complete". It was sufficient to find that there was a "significant" defect and it did not matter how it was defined. There was notice on Record that the pursuer was saying that there was something wrong with the brakes and it was sufficient if there was a significant or even partial defect.

[104] The question of the wheel bolts and the insulation which were looked at when the vehicle was recalled was also a matter to be taken into account. That was not pled as such but it was in the defenders' evidence and the third party had in fact amended to include reference to it.

[105] Mr Smith submitted that the terms of the Sale of Goods Act were irrelevant and the averments in Answer 3 for the third party could be ignored. The only question was whether the vehicle was of "satisfactory quality" but the court was not bound by any particular matter so long as it fell fairly within the pleadings. The difficulties were the failing hood, the fact that the vehicle had to have the wheel bolts fitted and insulation installed and that it was away for this purpose, the leak to the shock absorber and the defective brakes. The question was whether the vehicle was of satisfactory quality when these defects were taken alone or in conjunction with other matters. Section 10 of the 1973 Act as amended, and so far as relevant, is to the following effect:

"10- Implied undertakings as to quality or fitness

(1) Except as provided by this section ... there is no implied (term) as to the quality or fitness for any particular purpose of goods bailed or (in Scotland) hired under a hire purchase agreement.

(2) Where the creditor bails or hires goods under a hire purchase agreement in the course of a business, there is an implied term that the goods supplied under the agreement are of satisfactory quality,

(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.

(2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods -

(a) fitness for all the purposes for which goods of the kind in question are commonly supplied,

(b) appearance and finish,

(c) freedom from minor defects,

(d) safety and

(e) durability.

...

(2D) If the person to whom the goods are bailed or hired deals as a consumer or, in Scotland, if the goods are hired to a person under a consumer contract, the relevant circumstances mentioned in subsection (2A) above include any public statements on the specific characteristics of the goods made about them by the creditor, the producer or his representative, particularly in advertising or on labelling."

There had been no evidence of any particular statements as such by way of advertising etc but Mr Smith submitted that there was evidence from a number of the defenders' witnesses that this was a top of the range car and indeed was one of the best cars in the world. It was a quality vehicle and its characteristics were within judicial knowledge.

[106] Section 12A dealt with the remedies. So far as relevant, it is in the following terms:

"12A Remedies for breach of hire purchase agreement as respects Scotland.

(1) Where in a hire-purchase agreement the creditor is in breach of any term of the agreement (express or implied), the person to whom the goods are hired shall be entitled -

(a) to claim damages, and

(b) if the breach is material, to reject any goods delivered under the agreement and treat it as repudiated.

(2) Where a hire-purchase agreement is a consumer contract, then, for the purposes of subsection (1) above, breach by the creditor of any term (express or implied) -

(a) as to the quality of the goods or their fitness for a purpose, ... shall be deemed to be a material breach."

[107] Mr Smith submitted that the question was whether the vehicle was of satisfactory quality such that the remedies of repudiation and repayment were open to the court.

[108] The case of J & H Ritchie Ltd v Lloyd Ltd 2007 SC (HL) 89, to which reference will be made later, was of no significance. It was not suggested by the defenders that the pursuer had in any way lost his right to rescind and that was not put to Mr Gaffney. The defenders had repaired the shock absorber but he had no confidence in the vehicle thereafter and rejected it.

[109] Nonetheless, Mr Smith indicated that he would consider the Ritchie case and make such submissions on it as he thought appropriate.

[110] His general submissions were

(1) That the vehicle should be of satisfactory quality.

(2) That a reasonable person is the judge of this, bearing in mind amongst other things the price, advertising and so on as detailed above.

(3) That this vehicle was not of such quality.

(4) That the breach was material.

(5) That the pursuer was entitled to repudiate and reject the goods and have his money returned.

[111] Mr Smith then referred me to the case of Lamarra v Capital Bank Plc and Another 2007 SC 95. That case involved the hire purchase of a Range Rover which had a number of defects.

[112] He referred me to paragraphs [1] to [13] and [55] to [62] of the Opinion of the Court, which was delivered by Lord Osborne.

[113] His Lordship held that the existence of a warranty was of no relevance. That brought to mind certain evidence of Mr Gentles who, when asked about the shock absorber, indicated that that was what a warranty was for. Nonetheless, he had agreed, on being pressed, that the situation with the shock absorber was unacceptable.

[144] Mr Smith then turned to paragraph [65] to [68] of Lamarra.

[115] He submitted that the Sale of Goods Act provided a different test. The relationship there was between buyer and seller and that also distinguished the case of Ritchie from the current situation. The relationship that Mr Gaffney had with Bentley Glasgow was a relationship which was completely extraneous to the defenders. The fact that he asked Bentley Glasgow to repair the vehicle was neither here nor there when it came to the defenders. It would have been different if he had asked the latter to take it away and repair it. The defenders were probably blissfully unaware of what was going on. Bentley were repairing it under a warranty and arguably doing so for the defenders' benefit rather than the pursuers.

[116] Mr Smith then turned to paragraph [70]. That dealt with certain errors in law made by the sheriff and the criticisms went on in subsequent paragraphs. It was clear that the reasonableness or otherwise of a party was not of relevance to the legal issues although it might have a bearing on the evaluation of that party's evidence.

[117] He then turned to paragraph [76] which asked whether the Sheriff Principal had applied the wrong test. He had referred to an "objective purchaser" but that came to the same thing as a "reasonable person".

[118] Paragraphs [77] and [78] were then dealt with. The defects were considered and it was concluded that the Sheriff Principal was entitled to reach the view which he did, namely that the vehicle was not of satisfactory quality.

[119] Mr Smith submitted again that the existence of the warranty was irrelevant and that the Act meant what it said. Although not all minor defects rendered the quality of the vehicle unsatisfactory, if a defect was other than minor the clear implication was that the matter led to a breach. The fact that it could be repaired or indeed was repaired was irrelevant. It was tested at the point that it happened, not what could happen afterwards. In this regard he referred me to the evidence of Messrs Bagley and Gentles that the leaking shock absorber was not what one might expect of a Bentley. There was also the evidence of the mechanic Ferrar and of Russell Graham, the parts manager, to the effect that Mr Gaffney was justifiably angry, bearing in mind what he had paid for the car. With that evidence alone, coming from Bentley employees, the pursuer should be successful.

[120] The presence of the leaking shock absorber itself was sufficient.

[121] Mr Smith had not previously mentioned the factor of durability but it was relevant. If someone took delivery of a vehicle, something might go wrong with it and the purchaser would not know. In this particular case the shock absorber developed a leak with less than 1000 miles on the clock. On any view the shock absorber had to be replaced and it was accordingly not sufficiently durable. On that basis also the vehicle was not satisfactory.

[122] Mr Smith then referred to the cases of Farnworth Finance Facilities Ltd v Attryde & Another [1970] 1 WLR 1053 and Charterhouse Credit Co Ltd v Tolly [1963] 2 WLR 1168. It is also reported at 1963] 2 QB 683. This was in order to anticipate an argument by Mr Watt to the effect that if the pursuers were successful there should be an accounting by them for the use which they had of the car. It was submitted that such an argument was not pled, was not put to Mr Gaffney in evidence and was in any event unjustified given the low mileage on the car. It had gone to Carlisle for a scratch to be fixed and it had been to Hamilton and Edinburgh. We did not know exactly how much use there had been of it and, in any event, how was that to be valued? How much did it cost to hire a Bentley? Was the valuation to be on the basis of mileage? Should the figure be topped up because it was a Bentley? Mr Smith referred in particular to paragraphs 1177 and 1181 of Charterhouse. In that case it was conceded that there should be some accounting by the hirers but Mr Smith made no such concession.

[123] In Farnworth an expensive motorcycle had numerous defects and eventually the chain broke and in turn broke the crankshaft. The hirer had had enough. Reference was made to the opinion of Lord Denning MR, at page 1057 where he said the following:

"In the light of all the evidence, the judge found that the machine was not roadworthy at the time of the purchase. The items of complaint, he said, made up a fundamental breach. He adopted the words of one of the witnesses that 'it was disgusting for a new machine'."

At page 1059 he went on:

"The next question is whether Mr Attryde affirmed the contract. Mr Hamilton points out that Mr Attryed had ridden this bicycle for 4,000 miles. Even after he got it back from the makers on October 15 he had used for five or six weeks till November 23 and had ridden 3,000 miles on it. Mr Hamilton said that by using it all that time Mr Attryde had affirmed the contract and it was too late for him to repudiate it. But as the argument proceeded, I think that Mr Cazalet gave the right answer. He pointed out that affirmation is a matter of election. A man only affirms a contract when he knows of the defects and by his conduct he likes to go on with contract despite them. In this case Mr Attryde complained from the beginning of the defects and sent the machine back for them to be remedied. He did not elect to accept it unless they were remedied. But the defects were never satisfactorily remedied. When the rear chain broke, it was the last straw. It showed that the machine could not be relied upon. This knowledge was not brought home to him until this last final incident. Mr Attryde was entitled to say then: 'I am not going on with this machine any longer. I have tried it long enough'. After all, it was a contract of hiring. The machine was not his until the three years had been completed, and the price paid. Owing to the defects, Mr Attryde was entitled to throw up the hiring; to say he would have no more to do with it; and to claim damages. The judge found that Mr Attryde did not affirm the contract and I agree with him... There is one other point, and that is on damages. Mr Hamilton said that Mr Attryde ought to give credit for the use which he had of the bicycle for some 4,000 miles. He relied on Charterhouse Credit Co Ltd v Tolly [1963] 2 QB 683 where such a credit was allowed. But it seems to me that the value of any use had by Mr Attryde is offset by the great amount of trouble he had. So no credit need be given for the use. I see no reason for interfering with the award of the judge on damages."

[124] Mr Smith submitted that it was a matter of fact and circumstances whether credit ought to be given. Having to go back to the garage for the recall campaign, going back for the hood and going back for the shock absorber was not a great experience for Mr Gaffney. Leaving that aside though, the defenders had had the use of the money paid by them by way of deposit and instalments. The pursuers only sought interest from the date of citation and since the defenders had had the benefit of the money since it was paid then one should offset the other.

[125] Mr Smith said that his claim was for repetition, not for damages. It was based on a failure of consideration.

[126] As far as the findings in fact were concerned, he invited me to find Mr Gaffney credible and reliable. Mr McGettigan was straightforward. He was quite affronted when it was suggested that there was nothing wrong with the brakes. Why would he perjure himself? He knew that there was a leak and there was some kind of connection between the braking system and the hydraulic system. We had heard from Mr Bellamy that this was a very complex system and no doubt what he said about the leak was crucial in some respects. Mr Gaffney had complained that the brakes were not working. He probably did not know that there was a connection between the two systems. He was supported by Mr McGettigan. Mr Gaffney was distressed and it would be surprising if he was distressed purely because of a leak from a shock absorber.

[127] I asked him about the pedal going to the floor. He submitted that one could be over analytical of Mr Gaffney's evidence. It was his perception which counted. This was a very complex system. I did not have to adjudicate as to whether he was lying about that or mistaken. His perception was that there was something wrong with the brake and that was also Mr McGettigan's. For all we knew it might have been possible that what happened was not repeated after the engine was restarted after it was taken to Parks, because of the complexity of the system.

[128] I asked him whether, if the hydraulic system was the only problem, Mr Bellamy's evidence was that the pedal simply could not go to the floor. If there was a defect then it was nothing to do with the hydraulic system. He submitted that I did not have to go that far. If Mr Gaffney felt that there was something wrong with the brakes his perception might be more than a reality. There was a lot of help from the pressure according to Mr Bellamy. Assuming that it did not go to the floor Mr Gaffney would be right in saying that there was something wrong with the brakes. He did not run straight to the dealer. He went to Mr McGettigan and asked him to check before taking it to the dealer. He was consistent. It did not matter in any event because the shock absorber was faulty. Why would he pretend that the brakes were faulty if he knew fine that taking the vehicle to the dealer would demonstrate the opposite?

[129] In any event, even if I held that the brake did not travel to the floor, Mr Smith said that that would not trouble him unduly.

[130] He then considered the findings in fact which he invited me to make. The first of these was as follows:

"On a number of occasions following the delivery of the Bentley, the electrically operated roof failed. It only partially closed, or partially opened. (Mr Gaffney) returned it to Bentley in Glasgow for repair. He did so on a number of occasions, approximately ten or twelve in total. This was not a minor defect. It may have been caused by the battery being flat. A battery that is not sufficient to operate the hood when required is itself a defect that cannot be dismissed as minor."

[131] Mr Smith submitted that it did not matter if there were ten or twelve visits in connection with the hood. Mr Ferrar thought that the vehicle had come back a few times. Mr Gentles had said that he did not know that the vehicle had come back in but he did not seem to know what Mr Ferrar was saying. What was clear was that the problem with the battery was one well-known to Bentley. It was a repeated problem. There was no indication given to Mr Gaffney that the difficulty with the hood was due to the malfunction with the battery. It seemed strange that a car costing so much had to be plugged in to keep the battery topped up. Although this might be the explanation for the malfunction of the hood the result was that it did not work as it should.

[132] The second proposed finding in fact was as follows:

"On an occasion the boot was leaking, allowing water to penetrate the boot."

[133] That was not pled but had been led in evidence. It was something of a minor matter but should not be ignored.

[134] The third proposed finding was as follows:

"On about 7^th March 2007, the vehicle was recalled under a recall campaign by Bentley. It required replacement of wheel bolts and insulation to the boot. The car was kept by Edinburgh Bentley for that purpose for a period of about a week."

[135] Mr Smith submitted that that evidence was unchallenged and indeed was averred by the third party and should be accepted.

[136] Number 4 was as follows:

"On a date after about the end of April 2007, the pursuers' Mr Gaffney was driving in the vehicle. Whilst on the motorway, and on a slip road off the motorway, the brakes failed. The brake pedal travelled to the floor. (Mr Smith indicated that he was not necessarily insisting on that). He was able to pump the brake for some braking, but it again travelled to the floor. (The same comment applies to that). He managed to stop the vehicle by using the gears. He drove home about half a mile to his home, slowly, in low gear. He then arranged for the vehicle to be delivered to Bentley for repair."

[137] Mr Smith accepted that 28 April would be the date concerned. There was considerable support for the fact that there was a significant brake failure. The starting point was that the braking system in the vehicle was undoubtedly complex. It was not difficult for the court to conclude that the way a problem might manifest itself was inconsistent. That Mr Gaffney had noticed the pedal travelling to the floor might not be contradicted by the fact that it was not problematic when it arrived at the garage. What was plain was that there was a considerable problem with the brakes. Mr Gaffney was supported by the following evidence:

1. There was Mr McGettigan. He spoke to Mr Gaffney being distressed on the phone and mentioning the brakes being a problem. He also drove the vehicle a little and felt a problem with the brakes.

2. Complaints were made to the garage when the vehicle arrived there that the brakes were a problem. Although it was accepted that there was no finding of difficulty Mr Gaffney was insistent that there was a problem. That problem was one beyond the suspension. Further, it was clear that a failure in the hydraulics could affect the brakes. There was no suggestion that Mr Gaffney would have known that much.

3. Why would he make an issue about this if it was not true? There was some kind of suggestion that he just wanted a Rolls Royce because the Bentley was "too low". However, the individual who was supposed to have heard that was not led as a witness. It was submitted as a matter of weight that that should be rejected as evidence. Mr Gaffney was clear that he did indicate he wanted a Rolls Royce but that was because he was so dissatisfied with the Bentley after all the difficulties. It should be recalled that he had previously had Bentleys, a matter confirmed by Mr Gentles. Mr Smith submitted that Mr Gaffney had appeared surprised when the suggestion was made to him that he said that the vehicle was too low.

Proposed findings in fact 5-7 were as follows:

5. On or about 10^th May 2007 Bentley Glasgow returned the vehicle to the pursuers. They had replaced the rear nearside shock absorber. They had also supplied a quantity of hydraulic fluid, stripped out and bled the system.

6. On 17^th May 2007 Mr Gaffney met with Bentley Edinburgh to discuss a matter unconnected with the complaints about the Bentley. He did so in the presence of his solicitor, Mr Craik. In the course of that meeting he advised that the Bentley was to be rejected.

7. On 18^th May 2007 a letter was sent by Mr Craik to the defenders intimating that the vehicle was rejected and (making) a demand for payment of the sums now sued for."

[138] Mr Smith referred to the email which referred to that meeting. The wording of it was unfortunate and appeared almost to be ridiculing the position of Mr Gaffney. It was very defensive. However the letter of rejection was sent as a courtesy to Bentley.

[139] The proposed findings 8-11 were as follows:

"8. On or about 27^th June 2007, the vehicle was uplifted from the pursuers in Glasgow.

9. On 2^nd July 2007 the car was received by Bentley Edinburgh. A check carried out by them revealed no significant defects as shown in 7/4 of process.

10. On 4^th September 2007, the defenders wrote to the pursuers terminating the contract.

11. On 18^th October 2007, the vehicle was examined by David Bellamy whose report was 7/6 of process. No significant defects were found."

[140] Mr. Smith submitted that this report was largely irrelevant. The car by then had been repaired and it was unsurprising that Mr Bellamy did not find any fault. His evidence was of some use in that it explained how the system worked but on a "fact-specific base to this car" it was submitted that it told us virtually nothing.

[141] Proposed findings 12 to 15 were as follows:

"12. The total mileage travelled by the Bentley whilst owned by the pursuers was 835. A significant proportion of that mileage was run up by taking the vehicle for repairs. One such repair was, after rejection and prior to uplift, to repair the bodywork. This was carried out by the pursuers at their expense at premises in Carlisle.

13. The failure of the hood to work was not a minor defect. Although Mr Gaffney was of the view that this of itself would not have led to him rejecting the vehicle, if he had chosen to do so it would have been sufficient. It is though a relevant circumstance in the ultimate decision to rescind.

14. Although the requirement to replace the wheel bolts and insulation were not "defects" that manifested themselves, they were nonetheless defects that can be taken into account in considering the overall state of the vehicle.

15. Leakage of hydraulic fluid from the shock absorber of itself is not a minor defect. It affects the safety of the vehicle. It is not to be expected in a vehicle of the quality and price of a Bentley and is sufficient to justify the rejection of the vehicle. Accordingly, even if there had been no reduction in brake efficiency, the failure of the shock absorber is such that the vehicle was not of satisfactory quality."

[142] As indicated above, having regard to the price and the presented quality of the Bentley brand, it was submitted that the fact that there was a leaking shock absorber was wholly unacceptable. That was a major defect which could, according to Mr Gentles, affect safety. The evidence of Messrs Bagley, Ferrar, Gentles and Graham was to the effect that the complaint was one that should not have been expected from a prestige car. It was no part of the consideration to say that a warranty would fix it as that was an after the event remedy. It did not answer the question of whether the vehicle met or failed to meet the statutory test. It was submitted that the court should almost take a "snapshot" at the time of the problem and ask whether it was of satisfactory quality, not whether it was able to be fixed. It was submitted that if any man on the street acting reasonably was asked whether a Bentley Azure with a leaking shock absorber was of satisfactory quality he would surely answer in the negative. It was also submitted that it could not be ignored that this was not the first time the car had to be attended to. The other problems were background material to be taken into account and the last straw was the leaking shock absorber.

[143] The sixteenth finding in fact, as proposed, was as follows:

"16 A defective braking system, even if partial, is also a defect sufficient to justify the rejection of the vehicle. A driver is entitled to expect, in a vehicle of that quality, that the braking system operates as it should, when it should. A failure to do so leads to a lack of confidence in the vehicle as happened with Mr Gaffney. That lack of confidence is such that he was justified, as would any reasonable purchaser, in considering that the vehicle was not of satisfactory quality."

[144] It was submitted that the question of "complete" failure or otherwise was not important and no motion was made to amend the pleadings. What was important was that the brake system failed to a considerable extent. When someone pressed the brake on a 3.25 tonne car coming off the motorway they expected it to stop in the manner it had on all previous occasions. It was submitted that, on the evidence, the brake system failed to some extent and thus the vehicle was not of satisfactory quality.

[145] Mr Smith considered briefly the well-known case of J & H Ritchie Ltd v Lloyd Ltd 2007 SC (HL) 89. In particular he read paragraph 13 of Lord Hope's speech.

[146] The upshot was, said Mr Smith, that having given the seller the opportunity to repair the harrow the purchasers were entitled to have reasonable information about the defect. How could the farmer be confident in the harrow if he was not told what was wrong with it? In the current case the defect in the shock absorber was dealt with but Mr Gaffney still did not know what had gone wrong. (It has to be said that there was no evidence that he asked what was wrong.) In any event it was not unreasonable for him to have no confidence in the car.

[147] There were no pleadings to suggest that he had waived his right to reject the vehicle by allowing repairs to take place. It was not put to him that he had waived any right when he took it to Bentley Glasgow for repair. There was no suggestion that he said that if they fixed it he would happy. A week later he got rid of the vehicle and a rejection letter was sent.

[148] The relationship between the parties was different in Ritchie. The defenders here knew nothing of the repair.

[149] Mr Smith submitted that the issues were very narrow and he invited me to find that the leaking shock absorber of itself rendered the vehicle not of satisfactory quality.

Submissions for the defenders
[150] Mr Watt submitted that at the heart of the case was a campaign of exaggeration on the part of Mr Gaffney. We knew from his own mouth that by August 2007 he wanted to change the Bentley for a Rolls Royce. That was before the problem with the shock absorber. He said that he had taken the Bentley in in connection with the hood ten or twelve times but the evidence showed overwhelmingly that it was in on only one occasion to have the battery charged. The evidence showed that the battery problem was probably caused by lack of use and that probably caused the roof to jam. There was a problem with cars such as this which were not used every day.

[151] Mr Gaffney had insisted that on the motorway the brake pedal went to the floor and the brakes failed completely. On Mr Watt's submission the evidence of Mr Bellamy was that even a complete loss of hydraulic fluid would not have caused that, nor would it have caused the brakes to fail. Mr Bellamy was asked how brake failure could occur and he said that it could happen if the supply to each of the four wheels failed. One would be left without brakes if all the brake pipes were cut. If one pipe was cut then a valve would shut off and one could still brake on three wheels. It is fair to say that it is obvious that all four brake pipes were not cut in this case and there was no suggestion of it.

[152] Mr Gaffney had concocted a story with the aim of extricating the pursuers from the hire purchase agreement and he was assisted in this by Mr McGettigan.

[153] Broadly speaking, Mr Watt accepted that the reasonableness or otherwise of a party to a contract such as this could not be of relevance to the legal issues which arose, although it was relevant to an evaluation of their evidence.

[154] The vehicle might not have been perfect but in law there was no need for it to have been. Cars were complex machines and that was a proposition so notorious as to be beyond dispute. Mr Watt's primary position was that the vehicle was of satisfactory quality and his secondary position was that if the defective shock absorber, if that was what the pursuers' case now came to, which was different from what was on Record and from what their two witnesses said, was fixed with the agreement of the pursuers, the nature of the defect being explained, the repair being effected and the vehicle being returned to Mr Gaffney, the pursuers' right to reject was exhausted.

[155] He then turned to the law and quoted the relevant sections of the 1973 Act. The test was an objective one. How upset or distressed an individual was was not relevant to the objective test although it might be a factor in assessing credibility. The price was a relevant factor and the price of this particular vehicle was plainly very significant. The fact that cars were complex was within judicial knowledge and that was also a relevant factor in the case. To require that a vehicle was perfect would be to impose too high a standard. He accepted that the existence of a warranty was not relevant but in broad terms the fact that warranties were sought and given was a recognition of the fact that things could and did go wrong with complex machines. The standard was that of the hypothetical reasonable man, who was aware that complex machines might suffer from defects. It was a question of fact and degree in each case.

[156] Certain aspects of the quality of goods to be taken account of in appropriate cases were listed in section 10(2B). The pursuer had offered to prove that the vehicle was not fit for the common purpose to which such vehicles were put. One of the features of this type of vehicle was that one of its purposes was to give pleasure to the owner and one did not approach the value of the use of it simply by looking at the mileage.

[157] The pursuers suggested that the vehicle was not free from minor defects and was not safe. As far as minor defects were concerned one had to look at the case of Lamarra, to which reference has already been made. Paragraph 61 indicated that perfection was not required and I have no difficulty with that.

[158] Mr Watt submitted that, as far as safety was concerned, if the pursuer had proved a complete failure of the braking system then plainly the vehicle was not safe. Proving that there was a flat battery on one occasion or that the shock absorber leaked and was replaced did not make the vehicle unsafe. Again, if a complete failure of the brakes was proved then that would plainly render the vehicle unfit. A flat battery affecting the hood was not sufficient. A leaking shock absorber which was replaced did not render the car generally unfit for use. Lamarra was the only case to which he wished to refer. Paragraph 6 recorded the defects in the vehicle in that case. The number of them was significantly greater than the number of defects in the present case and the overall effect was significantly worse. The general approach was as set out in paragraph 82, where the approach of the Sheriff Principal at paragraph 50 of his judgment was quoted. It was to the following effect:

"This court is required to put itself in the position of a reasonable person and ask itself whether, in the state in which it was shown to be when it was delivered, this Range Rover was of satisfactory quality for such a vehicle. I believe that a hypothetical jury would answer that question in the negative. So would I. This was a very expensive car, sold as a high quality vehicle. It was delivered with a differential which required to be replaced and which was later replaced by Shields when they reacquired the vehicle. It had the other defects referred to above. An objective purchaser of such a vehicle would not, in my opinion, have expected to have a vehicle with these defects delivered to him in implement of the agreement which he had entered into."

[159] That passage just about summed up my task. I was invited to take into account the fact that the vehicle was a complex machine and the overall state of the evidence. Furthermore, I should not take the standard to an unacceptably high level in considering whether a leaking shock absorber rendered the vehicle unsatisfactory.

[160] Mr Watt said that he was comfortable with the approach taken by the Sheriff Principal but he was not to be taken as accepting that the fact that the component required to be replaced made the vehicle unsatisfactory per se. It was a question of fact and degree.

[161] He referred to the remedies set out in section 12A of the 1973 Act. The right of rejection and repudiation of the contract did not subsist indefinitely.

[162] He referred to the case of Ritchie. There was no equivalent of section 35 of the Sale of Goods Act in the 1973 Act in relation to hire purchase. Nonetheless, the right of rejection could not, he repeated, subsist indefinitely. If one had a car with a scratch on an ashtray, one could not drive it for three years and then reject it.

[163] Mr Watt turned then to look more specifically at Ritchie and considered the statutory framework of the 1979 Act. As far as relevant, it was equivalent, he said, to the 1973 Act in relation to the quality to be expected and the remedies. Section 35(6) was, of course, a matter which was considered by the House of Lords and there was no equivalent of that in the 1973 Act. Mr Watt looked first of all at the judgment in the Inner House which was reported at 2005 1 SC 155. He pointed out that the pursuers sought repetition of the purchase price and then referred in particular to paragraphs 18, 19, 20, 22, 25, 36, 41-48 and 53-55. He submitted that Mr Smith's position was that the hirers in the current case were able to present the goods for repair, have them repaired, accept them back and then intimate to the creditor that they were rejecting the goods. He accepted that the contractual relationship between the parties was not the same in Ritchie but the position was the same in principle. The overall effect of the purchaser getting the vehicle repaired was the same in each case. Ritchie confronted the problem of the purchaser exercising multiple remedies. The purchaser was having his cake and eating it. I pointed out that in Ritchie it was the seller who was supplying the cake and that was not the position here. Mr Watt said in reply that the central issue was one of fairness. He invited me to look at the equities of the situation. For the purposes of assessing whether it was equitable for the hirer to ask for repairs and later reject the goods, the proper focus had to be on the hirer's position. Was it equitable to allow him to do that? It was not relevant to consider who it was who picked up the costs of the repairs. He relied on Ritchie because the regime which regulated the standards which purchasers and hirers were entitled to expect were virtually the same and the remedies were the same so far as repudiation and rejection were concerned.

[164] He referred then to the House of Lords decision and concentrated particularly on the speech of Lord Hope at paragraphs 12, 13 and 15. Paragraph 15 referred to an implied term in the contract of sale. That was apt to cover the current situation also by extension. What was being got at was the position of the purchaser. It did not matter that the seller was not involved in the repairs. He then turned to paragraph 16. Approaching it another way, he said that at the time the goods were purportedly rejected the evidence was that they were satisfactory, so rejection was ineffectual. The right to reject was lost because the goods had been repaired and were satisfactory at the time of rejection. This was in keeping with the principle of paragraph 15.

[165] He did not cite any authority for this other than Ritchie.

[166] Lord Rodger's approach was different in that it proceeded on the basis of an innominate contract rather than an implied term and Mr Watt drew my attention to paragraph 32. I pointed out that the innominate repair contract was in the current case not between the purchaser and seller but between the hirer and a third party. Mr Watt accepted that but indicated that he was founding on the approach of Lord Hope, which, he said, was supported by Lord Mance and also by Lord Brown of Eaton-under-Haywood, who also followed the approach of Lord Rodger of Earlsferry.

[167] I asked him what part of the pleadings covered his argument. He referred to plea-in-law 1, which was a plea to the relevancy. He also referred to plea-in-law 3 to the following effect: "The defenders not being in breach of contract are entitled to decree of absolvitor."

[168] The difficulty with plea-in-law 3, it seems to me, is that it goes to the merits and does not specifically deal with loss of the right of rejection and repudiation.

[169] I also expressed some difficulty with the contention that plea-in-law 1 covered the situation. Mr Watt said that condescendence 6 provided the answer in the first sentence, which was to the following effect: "Having rescinded the contract the pursuers are entitled to return of the sums paid by them in respect of it." He said that as a matter of law they were not so entitled because they had lost the right of rejection and accordingly the plea was habile to deal with it.

[170] In any event, he made no motion to amend to insert a plea which went directly to the point.

[171] He again turned to questions of credibility and reliability. He submitted that Mr Gaffney was incredible. He had said that the hood failed ten or twelve times but he was flatly contradicted by Mr Gentles and Mr Graham did not concede any significant ground on the point, saying that he never saw the car in for a fault with the hood. Mr Gaffney said the hood problem had resolved itself by the time the brake problem occurred. The car was uplifted at the end of October and the shock absorber was replaced at the end of April. That meant that there were ten to twelve trips, on his evidence, to Bentley Glasgow, in the space of six or seven months. He also said there had been trips back and forth to Bentley Edinburgh ten times. Even assuming that that meant ten trips in total, that would involve five visits to Edinburgh, making seventeen visits in all. That was an exaggeration.

[172] In the second place, he could not recall the date or the time when the brakes failed. He would not, perhaps, have been expected to recall the precise date but, given that it would have been a traumatic event, one might expect him to remember the time of day.

[173] I have to say I do not recall him being asked what time of day this happened.

[174] Mr Watt submitted that the scenario of a brake failure at 60-70mph and then driving off the off-slip without brakes was implausible. There were a number of inconsistencies in Mr Gaffney's evidence. In chief he said that the car went in after the brake failures and he never got it back. In cross he said that he did get it back after it was repaired. In chief he did not mention any problems with the steering or the suspension but he did so in cross. I pointed out that he was not asked about that in chief but Mr Watt submitted that if Mr Gaffney had been giving a comprehensive account of the defects one would have expected them to have been mentioned in chief and indeed to have appeared in the pleadings and the letter of rejection. Mr Gaffney said that he looked under the hood at the engine and saw no fluid in the hydraulic reservoir. He did not mention any removal of the plastic cover. He did not mention any of the steps taken to check the fluid. I did not think that that was significant and as far as the cover was concerned it seemed to me to be a mere matter of detail.

[175] Mr Watt said that Mr Gaffney gave a clear account of the technician being flabbergasted and expressing disbelief. Mr McGettigan did not recall any such reaction from Mr Ferrar and the latter said that that was not his response. That, however, seems to me to be a matter of perception and the words uttered by Mr Ferrar are not something I would have expected him to remember at this juncture.

[176] Mr Gaffney conceded that he was dissatisfied in April 2007 before any problem arose with the suspension and the evidence was clear that he spoke to Mr Stewart at that time. I pointed out that there was no evidence from Mr Stewart. Nonetheless, Mr Gaffney's evidence was that Bentley never came back with a figure. Mr Bagley indicated that negotiations were ongoing and figures were discussed. Before the alleged brake failure there was evidence that he was not satisfied with the vehicle and wanted rid of it. Not only that, but he left it at the dealer's showroom.

[177] Mr Gaffney was himself a time-served mechanic/technician so he had a certain amount of technical knowledge. He had insisted that there was complete brake failure and that the pedal went to the floor. That was flatly contradicted by Mr Ferrar, who drove it and found nothing wrong with it, and by Mr Bellamy, who said that loss of hydraulic fluid would not lead to the loss of the brakes and the pedal going to the floor. It was implausible that if there had been total brake failure he would have taken the car back after it was repaired. There was some evidence of a water leak in the boot but there was no Record for that defect. That also went to credibility. If it had happened one would have expected to see it in the pleadings.

[178] His evidence as to the technical aspects of the braking system was unreliable. He said that the brakes and the suspension came off the one reservoir though he did not amplify his position. The clear implication was that both systems depended on the same tank of fluid and he was wrong about that.

[179] As far as Mr McGettigan was concerned, he was employed by Mr Gaffney's company. He insisted that the pedal went to the floor and that was contradicted by Messrs Ferrar and Bellamy. There was an implausible concurrence in his description of the brakes and that of Mr Gaffney. Mr McGettigan also said that he opened the hood and saw the reservoirs, which he said were empty. Again he missed out the intermediate step of removing the cover and he mentioned both reservoirs. The evidence was clear however that the brake fluid reservoir was not empty. Alternatively, there was no evidence to suggest that it was.

[180] Mr McGettigan said that he got in the car and drove it some two yards whereupon he knew that it was not going to stop. That was a fairly short distance but Mr Ferrar drove it more than 50 yards and found no problem with the brakes. Mr McGettigan had no recollection of the technician being flabbergasted. He claimed that the Bentley technician said that the defect in the brakes was a Bentley thing and he was then shown the other vehicle but that was implausible. Mr Watt made something of Mr McGettigan's description of the ramp at Parks being erroneous but I do not think that there is anything in this point.

[181] Mr McGettigan also indicated that the same fluid fed the brakes and the hydraulics. He said that they needed fluid and that without it the brakes were non-existent. When it was put to him in cross-examination that the leak had made the brakes less efficient, he disagreed and said that that was not correct and that the brakes were non-existent.

[182] The defenders' witnesses on the other hand were credible and reliable, especially Mr Bellamy when it came to technical matters. Mr Smith had indicated that a technical expert from the manufacturers should have given evidence but that was for the pursuer to do.

[183] Mr Watt then turned to the pursuers' case on Record. They offered to prove that the roof jammed and that it had to go to the repairers under warranty. That case failed. It was only spoken to by Mr Gaffney and was not established. The second case was a complete failure of the braking system. Again that case had not been made out. It was spoken to by incredible and unreliable witnesses. The technical evidence and the evidence that Mr Ferrar drove the vehicle should be accepted. The pursuers now offered to prove that in March wheel bolts were replaced and insulation put in. That was admitted but there was no significance in it. There was no evidence that there was a defect which was being cured and in any event the problem was rectified, which took him back to Ritchie.

[184] The pursuers offered to prove that there was a flat battery, which was replaced free of charge. That was proved but it was de minimis.

[185] As far as the defective hood was concerned, it was not proved that that was a separate item from the flat battery. Mr Gaffney in any event had said that he would live with the problem with the hood. The faulty shock absorber and its repair were proved. That was enough to render the vehicle unsatisfactory. Furthermore, the repair had been effected before the purported rejection and that brought Ritchie into account. The opportunity to resile had been lost.

[186] I was invited to disregard the alleged water leak in the boot. That was spoken to only by Mr Gaffney and did not feature in the Record.

[187] Mr Watt then turned to his proposed findings in fact. These were as follows:

1. The vehicle was uplifted on 23 October 2006 and Mr Gaffney had possession and use of thereafter until it was recovered on 2 July 2007.

2. In March 2007 the vehicle was recalled to Bentley Edinburgh and wheel bolts were replaced and insulation fitted. It was in the garage from around February 27 to 7 March 2007. The work was carried out with the agreement of the pursuers and completed successfully and there were no subsequent problems.

3. At some time after 23 October 2006 and before 7 March 2007 it was returned to Bentley Glasgow to have its battery charged. The flat battery may have affected the operation of the hood.

4. In May 2007 the vehicle was taken to Bentley Glasgow when a faulty shock absorber was replaced. The brakes, suspension and power steering were functioning satisfactorily. Repairs were carried out pursuant to an agreement between the pursuer and Bentley Glasgow to investigate and carry out repairs. The shock absorber was replaced. The vehicle went in on 28 April and was out again at latest on 10 May 2007. The repair was effective. The vehicle was returned to the pursuers and a full explanation of the nature of the defect and the repairs to be carried out have been given.

5. Inspections on 2 and 6 July 2007 and 18 October 2007 found no material defects in the vehicle.

6. In the event of loss of hydraulic fluid from a leaking shock absorber complete brake failure is inherently unlikely given the design of the braking system. In the event of the loss of hydraulic pressure the brake pedal will become harder and will not go to the floor.

7. The pursuers' managing director Mr Gaffney had indicated that he did not like the car and wanted to change it in April 2007 before the problem with the shock absorber.

[188] Before dealing with quantum, Mr Watt summed up his position and helpfully provided written submissions. Under reference to Atiyah on the Sale of Goods (11^th ed) at pages 519-520 he submitted that the relevant time for the purposes of assessing quality was at the time of supply.

[189] Reference was made in particular to the case of UCB Leasing v Holtom [1987] RTR 362. In Lamarra the Sheriff Principal had looked at the condition of the vehicle at the time it was delivered. Mr Watt agreed with me that if he was right about that one could nonetheless look at the condition of the goods later to see if one could infer what their condition was at the time of delivery but that depended on the time which had elapsed.

[190] The requirement for goods to be durable protected the hirer from being supplied with goods which failed unacceptably during their life and reference was made to Atiyah at pages 189-190.

[191] On the evidence, he submitted the vehicle was in satisfactory condition at the relevant time.

[192] He then asked whether the right to rescind had been lost since the car had been repaired by the time the contract was purportedly rescinded. Can rescission operate on the basis of a historic breach? He said that he had found no case which covered this but his submission was nonetheless that when the repair was carried out the right to rescind was lost. Paragraph 15 of Lord Hope's speech in the J H Ritchie case applied.

[193] Rescission was an equitable remedy. It would be difficult for finance companies if repairs could be carried out to a vehicle by a third party before the finance company was afforded the opportunity to examine it and to assess the seriousness of the alleged original breach. By the time the matter was brought to their attention the defect would have been remedied without their knowledge or participation.

[194] I have to say that I do not regard this as insurmountable since if the matter proceeds to litigation no doubt the court will consider all the evidence bearing on it and reach its own conclusion.

[195] His submission was that the so called victim would get a double benefit. He could get the vehicle repaired and he could then have the contract rescinded. It seemed to me, however, that this could work both ways since if the vehicle was repaired and the contract rescinded then the original defaulter would get back a vehicle which was in perfect working order.

[196] The problem, according to counsel, was that the creditor would not have had any knowledge or given any consent to these things happening.

[197] He submitted that equity favoured the party in default. Rescission was an equitable remedy as was pointed out in the case of Gamage v Charlesworth's Trustee 1910 SC 257 especially at pages 267-268.

[198] If I were not with him thus far, counsel submitted that I had to consider whether there was an implied term in the contract that if the vehicle developed a material fault, the nature of which was fully explained to the pursuers and was successfully repaired, then the pursuers' right to reject based on that fault would be extinguished. His submissions on this echoed those on the question of equity. No supplier of goods would be content to accept the prospect that a hirer could arrange to have goods successfully repaired but thereafter remain entitled to rescind the contract on the grounds of an historic breach. The supplier would be denied any chance of satisfying himself about the quality of the goods in their defective state and would be badly positioned to defend a claim. The term suggested would have been readily assented to by the defenders had it been proposed at the time of formation of the contract. The pursuers would also have assented to it. It would not have prejudiced their interests. The defenders did not plead an implied term but it was submitted that the absence of pleading on the point caused no material prejudice to the pursuers and the evidence about what was done would have been no different had an implied term been pled. No such term was pled in Ritchie.

[199] I was accordingly invited to find that after the Bentley had been successfully repaired any right to rescind which the pursuers might have had had been lost to them as a result of the operation of a term implied into the hire purchase agreement.

[200] Mr Watt then turned to the question of quantum, on the hypothesis that the vehicle was not of satisfactory quality and that the pursuers could exercise a right of rejection and treat the contract as repudiated. The pursuers' second plea-in-law was for damages for breach of contract. However, their approach was to seek to recover the sums expended on the vehicle, having rescinded the contract.

[201] Counsel referred to the case of Connelly v Simpson 1993 SC 391.

[202] The pursuers in the present case claimed the return of certain monies. In Connelly it was held that a contractual remedy should apply where there had been a breach of contract. Reference was made to Lord McCluskey's Opinion at page 407 where he said the following:

"Leaving aside the other remedies which might arise following a breach of contract, the only remedy available to a person for breach of contract, if he seeks a monetary remedy, is to claim damages which will compensate him for his loss. Very commonly if he has paid over a sum of money and if no great period of time has elapsed between such payment and the breach of contract then the amount of damages is likely to equal the sum paid over. But all he is entitled to is monetary compensation for the loss he has suffered through the failure of the other party to perform at the time when performance was due; and, in my opinion, that loss clearly falls to be measured as at that date."

[203] At page 414 Lord Sutherland said the following:

"The payment was in fact in consideration of the pursuer acquiring a personal right against the defender to demand the transfer of the shares and that consideration he received. I am therefore of the opinion that there is no room for the application of the condictio and that the pursuer's only remedy would be an action for breach of contract if he could show that the defender was in breach of his obligations under the contract."

[204] Counsel submitted that it was plain from section 12A(1) of the 1973 Act that pursuers could claim damages and rescind following material breaches. But in the current case what was sought was return of the sums paid. This was irrelevant. If there was a breach they were entitled to be put in the position they would have been in if the contract had been implemented. Reference was made to Gloag on the Law of Contract (2^nd Ed.) at page 680.

[205] He submitted that the basis upon which quantum was pled in the current case was problematic because repayment of the sums paid was sought. This was incoherent since contractual damages were not quantified with the aim of returning the parties to their original pre-contractual positions.

[206] He went on to submit that the measure of damages in a breach of hire purchase contract was the same as in other contracts. Reference was made to the case of Charterhouse Credit Co Ltd v Tolly [1963] 2 QB 683 and in particular to what was said by Donovan LJ at page 706, Upjohn LJ at page 710-712 and Ormerod LJ at page 717.

[207] The submission was that the pursuers' claim for repayment of sums previously paid was irrelevant. Since the pursuers did not aver any other basis upon which the court could approach the quantification of damages there was no other approach available. It followed that the pursuers' claim was irrelevant and fell to be dismissed.

[208] Alternatively, if I was not with the above submission, and on the hypothesis that liability was established, counsel submitted that the proper approach to damages was as follows. The sum claims consisted of a deposit of £56,000, instalments totalling £24,854 (that is £4,142.42 per month, paid in November, December, January, February, March and April) per the Joint Minute, and an acceptance fee of £250.

[209] It was conceded that repayment of the deposit and acceptance fee would be in order but the instalments fell into a difference category. The pursuers had the vehicle for a period of some seven months. It was unavailable for one reason or another for about three weeks in total. The measure of damages should recognise, therefore, that the pursuers had available to them the use of the vehicle for a period of around six months. Reference was made again to Charterhouse.

[210] It should be pointed out that in Charterhouse, as I understand it, the deductions were made for journeys not for the fact that the vehicle was available but counsel submitted that the circumstances in Charterhouse were special. He accepted that assessment of damages was not an exact science but in his submission there should be deducted from the sum sued for the entire amount of the instalments totalling £24,854.

[211] There had been no pleadings to the effect that the pursuer had had the use of the vehicle for the period between delivery and uplift but that was implicit in the pursuers' case and implicit in the evidence. The vehicle was plainly available to the pursuers. The proper approach to the assessment of damages (assuming the claim to be relevant) was to make the best assessment as could be made on the available evidence.

[212] As far as disposals were concerned, Mr Watt invited me to find the action irrelevant so far as the claim for damages was concerned since repetition of the full price was sought. I should therefore sustain the first plea-in-law for the defenders and the first plea-in-law for the third party and dismiss the action.

[213] Alternatively, I should sustain the second plea-in-law for the defenders to the effect that the pursuers' averments were unfounded in fact and that the defenders were entitled to decree of absolvitor and I should sustain the second plea-in-law for the third party to the same effect.

[214] In any event, if I found the defenders liable to the pursuers I should sustain the fourth plea-in-law for the defenders (No 7 for the third party) and award damages on the basis abovementioned.

[215] Separatim, if I found the defenders liable to the pursuers I should sustain plea-in-law 5 for the defenders anent a right of relief from the third party.

[216] Mr Watt also moved for expenses.

Reply for the pursuers
[217] In reply Mr Smith submitted that he could not dispute that the quality of the vehicle should be assessed at the time of the supply. He referred to Atiyah at page 189. However, there was a recognition in the Sale of Goods Act that one had to take a retrospective view to see how goods must have been when they were delivered. Did they have a latent defect? The evidence disclosed that the Bentley had only been driven for about 800 miles. It had been in the Bentley garage repeatedly and there was no suggestion that any defects were caused by some extraneous factors. It was not hard to demonstrate that something must have been wrong with it when it was supplied. It might have been different had the pursuers had the use of it for two or three years.

[218] As far as implied terms were concerned, counsel invited me to look carefully at paragraph 15 of Lord Hope's speech in the Ritchie case, which made it plain that each case depended on its own circumstances.

[219] As far as the question of rescission being an equitable remedy was concerned, Mr Smith submitted that the pursuers were not pursuing a common law claim but one under statute. There was no suggestion in section 12A(1)(b) that there had to be a balancing exercise. There were no pleadings to the effect that the defenders were prejudiced and that they were unable to examine the vehicle and see what was wrong with it.

[220] In relation to quantum Mr Smith submitted that there was no basis either in the evidence or in the pleadings for setting off any benefit which might have arisen to the pursuers. Figures would have had to be set out in the pleadings before a case could be made for this. It had been suggested that the monthly instalments could be looked at but they did not properly reflect the benefit. The hiring was for a particular period of time and the instalments reflected that. If the period was over ten years then the instalments would have been smaller and if they had been paid off within a year then they would have been much greater. How was this benefit supposed to be calculated? Was it for example the cost of taxis? It was impossible to come to any conclusion about it on the evidence and no set-off should be allowed.

[221] The judges in the Charterhouse Credit Co Ltd case appeared to have plucked figures out of thin air but there was no evidence to justify my doing it.

[222] Mr Smith referred to the case of Duncan v Gumleys 1987 SLT 729. In that case a firm of chartered surveyors was found liable in damages after they had negligently reported on the condition of a property.

[223] While it was held that the case on which the purchaser succeeded was a variation, modification or development of what was averred on Record and accordingly well within its terms and that there was sufficient corroboration of that case, no proper basis in evidence had been led by the purchaser to entitle the Lord Ordinary to make the award which he made. At page 734D-E the Lord Justice Clerk (Lord Ross) said the following:

"I entirely accept that in assessing damages the court is not bound by any rigid rules. Stewart v Brechin and Martin v Bell-Ingram are both examples of the readiness of the court in cases of this kind to relaxing the rigid rules and, for example, to have regard to the cost of repairs when endeavouring to ascertain the difference between the value of the house without the defect and its value in its defective condition. However it is one thing to relax the rules, but it is another thing to award damages in the absence of evidence upon which to base the award. The fact of the matter is that the pursuer did not lay before the court any material from which a proper assessment of damages could be made."

He went on at letter I to say the following:

"I have sympathy with the Lord Ordinary in the position in which he found himself. I also have sympathy with the pursuer, but the fact is that the pursuer failed to lay proper material before the court to enable the Lord Ordinary to assess the damages due in respect of the defenders' negligence. If a pursuer fails to lead evidence sufficient to enable the court to assess what damages are due, he has only himself to blame."

[234] Mr Smith also moved for expenses in the event of success.

Discussion

[235] Before turning to the law which I consider applies in this case I propose to set out the facts which I find established. Many of these are not in dispute and I am grateful to Counsel for focussing the issues.

[236] On 23 October 2006 the pursuers and the defenders entered into a hire purchase agreement for the vehicle in question. The cash price was £227,410.65. Pursuant to the hire purchase agreement the pursuers paid to the defenders during November 2006 a deposit of £56,000, a document fee of £250 and an instalment payment of £4,142.42. In each of December 2006 and January, February, March and April 2007 further instalments of £4,142.42 were paid by the pursuers to the defenders. The total paid by the pursuers to the defenders amounted to £81,104.52.

[237] On 28 September 2006 the third party purchased the vehicle from R Stratton and Co Limited trading as Bentley Edinburgh for £227,410.65 inclusive of V.A.T. Allowing for the deposit paid by the pursuers, the third party paid R. Stratton & Co £171,410.65. On 29 September 2006 the third party sold the vehicle to the defenders for £227,410.65 inclusive of V.A.T. Allowing for the deposit, the defenders paid the third party the sum of £171.410.65.

[238] In November 2007 the vehicle was sold by the defenders for £177,000.000 inclusive of V.A.T.

[239] At some point after 23 October 2006 the vehicle was returned to Bentley Glasgow to have its battery charged. The flat battery may have affected the operation of the hood. In or about March 2007 the vehicle was recalled to Bentley Edinburgh where wheel bolts were replaced and insulation fitted. It was in the garage for about a week and there were no subsequent problems with the wheel bolts or the insulation. On or about 28 April 2007 the vehicle was taken to Bentley Glasgow. The pursuers' managing director Mr James Gerard Gaffney complained that the breaks were faulty. The system was checked and it was found that the rear nearside shock absorber was leaking. The system was bled and a quantity of hydraulic fluid was supplied. On 17 May 2007 Mr Gaffney met with representatives of Bentley Edinburgh to discuss a matter unconnected with the complaints about the Bentley. He did so in the presence of his solicitor, Mr Craik. In the course of that meeting he advised that the Bentley was to be rejected and on the following day a letter was sent by Mr Craik to the defenders intimating the rejection and making a demand for payment of the sums now sued for.

[240] When the vehicle entered Bentley in Glasgow on 28 April the mileage on it was 527. After rejection was intimated the vehicle was taken by the pursuers to Carlisle where certain repairs were undertaken to the bodywork.

[241] The vehicle was uplifted by the defenders on 2 July 2007. By that time the mileage was 835. At that time there were no material defects in it. A further inspection on 18 October 2007 confirmed that.

[242] Thus far, it seems to me, my findings are non-controversial but they do not cover the real issue in the case. I have to determine whether there was in fact any brake failure on 28 April and, if so, to what extent that occurred. I have also to determine the extent, if any, of any problems with the hood. I do not consider, on any view, that the question of the wheel bolts or the insulation are anything other than de minimis. There is no doubt that there was a leaking shock absorber but I will deal with that in due course.

[243] As far as the brakes are concerned the pursuers obviously rely on the evidence of Mr Gaffney and Mr McGettigan. Their case on Record is that the vehicle suffered a complete failure of the braking system while being driven. The pursuers' solicitors letter of 18 May 2007 indicated that the "most recent and most serious problem which has been experienced is a catastrophic brake failure".

[244] In his evidence Mr Gaffney said that the pedal went further down than it should. The first time he pumped the pedal there was very little braking and then it went straight to the floor and there was nothing. Mr McGettigan said that Mr Gaffney told him that the pedal went all the way to the floor and there were no brakes. That was what he found himself when he drove the vehicle for a short distance. In these circumstances I do not think that it will do, despite Mr Smith's valiant attempts, to dismiss this evidence as being based on a perception. The Record, the letter and the evidence were quite clear that indeed the brake failure was complete or catastrophic. The evidence of Mr Gentles about what he was told by Mr Gaffney is consistent with the letter and the Record and I accept the former's evidence.

[245] Can the evidence of a complete brake failure be accepted? There was nothing in the body language of any of the witnesses which tended adversely to affect their credibility or reliability but it seems to be that the answer must lie in the evidence of Mr Bellamy. He was an independent expert whose qualifications were beyond question. I have narrated his evidence in full and from that it can be seen that there is simply no way that a leak in the shock absorber could have caused the brake pedal to go to the floor. If anything, the brake would have been harder to push if there was a lack of support from the hydraulic system. No basis whatsoever has been suggested in the evidence as to how there could be a complete brake failure other than the cutting of the brake pipes, which is not an issue. No expert evidence was led for the pursuers to explain how it could have come about. In the circumstances I simply cannot accept that the brakes failed and that has a serious effect on the credibility of Mr Gaffney and Mr McGettigan.

[246] I accordingly do not accept that there was a complete brake failure, as averred on Record and, in view of the conclusion I have reached about Mr Gaffney's credibility I cannot accept his unsupported evidence about the repeated hood failures. I am prepared to accept that the hood failed on one occasion because of a flat battery. I accept the evidence that if vehicles such as this are not used for a length of time then the battery may go flat because of the number of accessories which are running but I do not consider that that is sufficient, by itself, to render the vehicle unsatisfactory.

[247] I turn now to the question of the shock absorber. It is common ground that the rear nearside shock absorber was replaced. It was leaking.

[248] Mr Smith argued that that of itself would be enough to render the vehicle unsatisfactory. If the vehicle was presented in that state to a prospective customer it seems to me that he would be entitled to reject it. There is no suggestion that it was so presented.

[249] It is quite clear that the tempus inspiciendum is the moment of delivery. However, one can look at the state of an object some time later to see if one can infer what its state must have been at that moment. One also has to ask whether, even if it is impossible to infer what its condition must have been at the time of delivery, the vehicle was unsatisfactory because an important component lacked durability.

[250] The answer to each of these questions must be found in the evidence but, unfortunately for the pursuers, it seems to me that there is nothing in the evidence from which I can draw any inference as to the vehicle's state at the time of delivery or the durability of the shock absorber. I simply do not know what went wrong with it. I do not know whether there was a latent defect, whether it lacked durability or whether something may have happened to it causing it to leak.

[251] That no evidence was led to this effect seems to me to be hardly surprising. It was no part of the pursuers' case as averred on Record that the leaking shock absorber, either alone or in combination with other factors, rendered the vehicle unsatisfactory. Only two complaints were made by the pursuers, it being the defenders who raised the issue of the shock absorber. I would have expected that, if the pursuers wished to rely on the condition of the shock absorber, they would have pled an esto case to that effect but there is none on Record.

[252] It seems to me therefore that they are unable to rely on the condition of the shock absorber.

[253] It is quite true that when a vehicle is rejected for one reason then another reason or reasons may be relied on in due course. Lamarra is an example of this. However, it appears that in Lamarra, while the letter of rejection did not mention the problem with the transmission, it was referred to in the pleadings and was relied on by the pursuer and respondent. It does not seem to me that it was incumbent on the defenders in the current case to explain away the shock absorber, there being no notice from the pursuers that they were required to do so.

[254] All that is left, therefore is the question of the wheel bolts, the insulation and the one incident with the hood which I am prepared to accept.

[255] I should say that I am quite satisfied that at some point the pursuer enquired about a Rolls Royce but it is not clear to me on the evidence precisely when that was and I make no finding about it.

[256] It seems to me that that suffices to dispose of this action but in deference to the careful submissions by Counsel I ought to say something about them.

[257] It was common ground that when the vehicle left Bentley Glasgow in May 2007 it was in a satisfactory condition, the rear nearside shock absorber having been replaced. The thrust of Mr Watt's submissions was that in these circumstances the pursuers had lost any right to rejection which they might have had, either because it would be inequitable to allow them to exercise that right or because of the existence of an implied term, presumably in the hire purchase contract, of the kind envisaged by Lord Hope of Craighead in the case of Ritchie. I confess to having some difficulty in seeing how that case bears upon the circumstances under discussion here. In Ritchie the only two parties concerned were the buyer and the seller. As I read the case, Lord Hope of Craighead was in favour of importing an implied term into the contract of sale. Lord Rodger of Earlsferry said that it must have been an implied term of the inspection and repair agreement that, so long as the respondents were duly performing their obligations under it, the appellants were not to exercise their right to rescind the contract of sale.

[258] In the current case there was no inspection and repair agreement between the pursuers and the defenders. Any inspection and repair agreement was between the pursuers and Bentley Glasgow. I cannot think of any implied term of that agreement which could provide any rights to or impose any liabilities on the defenders, the agreement being res inter alios acta as far as they were concerned. At the moment I am not persuaded that it would be appropriate to import an implied term into the hire purchase contract that in the event of the goods being repaired by a third party the right of rejection would be lost but I do not consider that it is necessary for me to decide the matter in the circumstances. I do not consider it particularly helpful to consider whether it is equitable or not to allow a right of rejection.

[259] It may be that the answer can be found by consideration of a matter referred to by Lord Hope of Craighead in his speech at paragraph 12 where he said the following:

"Prior to the introduction of that provision into the 1979 Act it was open to question whether asking the seller to have defects in the goods remedied might amount to an implied intimation of acceptance by the buyer or to an inconsistent act which would prevent him from rejecting the goods."

It might be possible then to argue that having goods repaired by a third party or even repairing them oneself was an inconsistent act which would prevent rejection. Whether it was or was not would, it seems to me, depend on the circumstances. Thus blowing up a flat tyre or changing the battery would not, I think, be an inconsistent act but overhauling the engine in a garage at home might well be. Were I satisfied in this case that there was a defect in the brakes which was not remedied by the replacement of the shock absorber I would not have held that the latter was such an inconsistent act. Taking the vehicle to a reputable dealer for work to be done would, in my opinion, provide sufficient security for the creditor that the work would be done properly and that appropriate evidence as to the nature of any defect would be available. In view of the decision I have reached as to the facts, however, this discussion is somewhat academic.

[260] Turning to the question of quantum, there are two matters which I should address.

[261] The first of these is whether the claim is relevant. Mr Watt's attack was predicated on the pursuers' claim being for damages. I am satisfied, though, that that is not the case. The pursuers' second plea-in-law is to the effect that they are entitled to damages as a result of the defenders' material breach of contract. The third plea-in-law is to the effect that the sum sued for is a reasonable estimate of their loss.

[262] I have some sympathy with Mr Watt's argument that the pleadings are incoherent but when one reads the Record as a whole it is obvious that the pursuers are in fact seeking repetition of the sums paid, rather than damages properly so called. The pleas-in-law are inept and doubtless mistaken but I would have been prepared to overlook that as being a technicality.

[263] The second matter is the extent, if any, to which there should be deductions from any award. I am satisfied that in an appropriate case some deduction ought to be made but this is not such a case. I entirely agree with Mr Smith that there are no pleadings habile to cover any deductions and in any event no evidence was led which would enable me to fix an appropriate figure. Had I been minded to make any deductions they would have had to be nominal and I would have agreed with Mr Smith that they would have been offset by the fact that the defenders had the use of the funds in the interim.

Decision

[264] I shall repel the pleas-in-law for the pursuer, and sustain the second pleas-in-law for the defenders and third party. The remaining pleas-in-law are superseded.

[265] I shall put the case out By Order for a hearing on expenses.