21/04/2019
It is a fundamental tenet of the motor trade that vehicles sold must not be unroadworthy. This principle is enshrined in Section 75 of the Road Traffic Act 1988, and it applies not just to outright sales but also to offers to sell and even displaying a vehicle for sale. The focus here is on critical components such as brakes, steering, and tyres, as well as the overall construction of the vehicle. Given that these are precisely the areas routinely scrutinised during a MOT test, it might be a natural assumption that a valid MOT pass serves as definitive proof of a car's roadworthiness and, by extension, its safety for a potential buyer. However, recent legal cases demonstrate that this assumption can be dangerously misplaced.
Two recent instances involving members of Lawgistics highlight the precariousness of relying solely on a MOT pass as a defence against accusations of selling unroadworthy vehicles. In both scenarios, the dealers attempted to utilise the defence of "The car had a new MOT." The outcomes, however, served as stark warnings.
The Road Traffic Act 1988 Prosecution
In the first case, a dealer was prosecuted under the aforementioned Road Traffic Act provisions. Crucially, this legislation imposes a strict liability. This means that the prosecution does not need to prove negligence or intent; if an inspection conducted shortly after the MOT reveals that the vehicle should not have passed, the dealer can be held liable. The absence of a 'due diligence' defence makes such charges particularly challenging to contest.
Following legal advice, the client entered a guilty plea. However, the defence presented mitigating circumstances, specifically highlighting the fact that the vehicle had recently passed its MOT at another garage. The prosecution, representing the council, pushed for the maximum penalty of a £5,000 fine and sought to recover £3,600 in legal costs. Fortunately, the court, evidently influenced by the mitigating factors, imposed a considerably lesser fine of £400 and ordered the dealer to pay £660 in legal costs. While avoiding a substantial fine is a victory, the real concern for traders often lies in the reputational damage and adverse publicity associated with such prosecutions, which can far outweigh the financial penalties.
The Consumer Protection Act 1987 Prosecution
The second case involved a prosecution under the Consumer Protection Act 1987 and the Consumer Protection from Unfair Trading Regulations. Unlike the Road Traffic Act, these pieces of legislation do offer a 'due diligence' defence. For a dealer to successfully utilise this defence, they must be able to demonstrate that they took ALL reasonable precautions to prevent the offence from occurring.
In this instance, the assertion was that a subsequent inspection, carried out by an expert appointed by Trading Standards, was so thorough that the vehicle's lack of safety should have been apparent to the dealer, irrespective of the MOT pass. To contest these charges, counsel was engaged. Ultimately, the council offered a formal caution, which the client accepted in exchange for the withdrawal of the prosecution. While the client was required to refund the £2,000 purchase price to the consumer, they successfully avoided the significant financial risk of the council's legal fees, which would have been substantial had the prosecution succeeded.
Why a MOT Pass Isn't Enough
These cases underscore a critical point: a MOT certificate, while a legal requirement for vehicles over a certain age, is not an infallible guarantee of a vehicle's condition or safety. The MOT test is a snapshot in time, assessing the vehicle against specific criteria on the day of the test. It does not, and cannot, predict future failures or identify all potential defects, especially those that might be subtle or develop shortly after the test.
The MOT test is designed to identify roadworthiness defects that could cause an accident. However, the interpretation and execution of the test can vary between testing stations and even individual testers. Furthermore, the test's scope is limited. For example:
- Engine Performance: While emissions are checked, the overall health, power, or longevity of the engine is not assessed.
- Gearbox and Clutch: The smooth operation and wear of these vital components are not typically part of the standard MOT.
- Brake Fluid Condition: The MOT checks brake function, but the condition and age of the brake fluid itself are not assessed.
- Corrosion in Non-Structural Areas: While structural corrosion is a failure point, minor or cosmetic corrosion in other areas might be overlooked.
- Wear and Tear on Components Not Directly Affecting Road Safety: Many parts might be worn but still within acceptable MOT limits, yet could be nearing the end of their service life.
A MOT pass can, therefore, provide a false sense of security. Dealers, in particular, have a legal obligation not only to ensure a vehicle is roadworthy at the time of sale but also to avoid engaging in unfair trading practices. Selling a vehicle that is imminently likely to fail or has significant undisclosed faults, even if it has a recent MOT, could fall foul of consumer protection legislation.
The Importance of a Pre-Delivery Inspection (PDI)
The key takeaway for all car dealers is to avoid relying solely on a MOT pass. A comprehensive and honest pre-delivery inspection (PDI) is not just good practice; it is a vital safeguard against legal repercussions and essential for maintaining customer satisfaction and business reputation.
A thorough PDI should go beyond the MOT requirements and include:
- Mechanical Checks: Thorough inspection of the engine, gearbox, clutch, suspension, and exhaust system.
- Brake System Overhaul: Checking brake pad and disc wear, brake fluid condition, and pipework integrity.
- Tyre Condition and Pressure: Ensuring tyres are within legal limits for tread depth and are free from damage, and are correctly inflated.
- Electrical Systems: Testing lights, wipers, horn, infotainment, and all dashboard warning lights.
- Bodywork and Interior: Checking for significant damage, corrosion, and ensuring the interior is clean and functional.
- Fluid Levels and Condition: Verifying all fluid levels (oil, coolant, power steering, washer fluid) and checking their condition.
Even if a problem is not identified by the MOT tester, a diligent dealer should identify and rectify it during the PDI. This proactive approach demonstrates due diligence and helps to ensure that the vehicle is not only legally compliant but also genuinely safe and reliable for the customer.
Legal Positions and Defences
It's crucial to understand the different legal frameworks and the available defences:
| Legislation | Key Requirement | Defence Available | Nature of Liability |
|---|---|---|---|
| Road Traffic Act 1988 (Section 75) | Vehicle must not be sold in an unroadworthy condition. | None (Strict Liability). | Strict; focus on the condition of the vehicle at sale. |
| Consumer Protection Act 1987 / Consumer Protection from Unfair Trading Regulations | Goods must be of satisfactory quality, fit for purpose, and as described. Misleading actions and omissions are prohibited. | Due Diligence: Proving ALL reasonable precautions were taken to avoid the offence. | Requires proof of fault or misleading practice; defence relies on demonstrating reasonable care. |
The distinction between strict liability and defences requiring proof of due diligence is significant. Under the Road Traffic Act, the focus is solely on the vehicle's state. Under consumer protection laws, the dealer's actions and precautions are paramount.
Frequently Asked Questions
Q1: Can I legally sell a car with an expired MOT?
No, it is illegal to drive a vehicle on public roads without a valid MOT certificate, unless you are driving it to a pre-booked MOT test appointment. Therefore, you cannot legally sell a car that requires an MOT without one, as it would be considered unroadworthy for use on public roads.
Q2: What is the legal definition of 'unroadworthy'?
'Unroadworthy' generally refers to a vehicle that is not safe to be driven on public roads due to defects in its construction, condition, or equipment. Key areas include brakes, steering, tyres, lights, and structural integrity.
Q3: Does a MOT certificate guarantee the car's value?
No, a MOT certificate only confirms that the vehicle met the minimum safety standards on the day of the test. It does not guarantee the vehicle's overall condition, its future reliability, or its market value.
Q4: What are the consequences of selling an unroadworthy vehicle?
Consequences can include fines, legal costs, reputational damage, and potential civil claims from the buyer seeking compensation for repairs or diminished value. Prosecution under consumer protection laws can also lead to significant penalties.
Q5: How can I protect myself as a dealer if a car fails shortly after a MOT?
Conducting a thorough pre-delivery inspection (PDI) that goes beyond MOT requirements is the best defence. Documenting this inspection, including any remedial work carried out, provides evidence of your due diligence. It is also advisable to have a clear sales contract outlining the vehicle's condition at the point of sale.
Conclusion
While a MOT certificate is a legal necessity and a useful indicator, it should never be the sole basis for assuring a vehicle's roadworthiness or safety. For car dealers, understanding the nuances of legislation and the critical importance of a comprehensive pre-delivery inspection is paramount. By going the extra mile to identify and rectify potential issues, dealers can not only avoid costly legal battles and reputational damage but also build trust with their customers, ensuring they are selling vehicles that are genuinely safe and fit for purpose. Relying on a MOT pass alone is a gamble that, as recent cases show, can have severe consequences.
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