Hula Groove Wedding Band - Threatened court action!

unholyangel

Although i dont think there is a confirmed booking in this case due to the "band" stipulating a booking is not secured without payment of the deposit......i do agree that contracts made by email can be legally binding.

shortchanged_2

unholyangel wrote: »

Although i dont think there is a confirmed booking in this case due to the "band" stipulating a booking is not secured without payment of the deposit......i do agree that contracts made by email can be legally binding.

Well there's another one you can get them on the unfair terms of contract. There needs to be equal redress.

On one hand they state a booking is NOT secured without payment of a deposit. i.e they can cancel the contract if a deposit isn't paid

however,

If no money is paid, they are still allowed to claim breach of contract and claim cancellation fees!!


I'm no Einstein but that certainly sounds a little one sided to me.

Vomityspice

Instead of worrying about whether or not a contract is formed, would it not be simplier for the OP to simple put them to proof?

If they are so keen to make a claim, let them and then retaliate with a counter claim.

Looking at the details available is would appear from the bands own t&c that a booking doesn't become confirmed until a deposit is received. As no deposit was received it can only mean that no contract was formed (lack of intention as OP didn't bother to pay any consideration).

Of course contracts via email can be legally binding (just received my european breakdown policy initiated via email), I believe the original discussion on this point was 'the postal rule' and how/if it applies to electronic forms of communications.

For fear of rehashing an old contract law seminar I was forced to attend, the case of Brinkibon Ltd v Stahag Stahl (1983) 2 AC 34 dealt with forms of communication that are synchronous and instantaneous. However, note that email is not instantaneous , thats why there is yet to be any settled law on the matter.

As another MSE'er pithily put it, I would suggest that they 'see me in court'. I suspect they won't bother as they are very likely to lose and have to pay reasonable costs to the OP. Note that the current Litigant in Person rate is £9.25 per hour, and don't forget to add in any time you would be required to take off work to deal with it. A quick draft schedule of losses might indeed encourage them to go away and stop wasting your time.

Equaliser123

I think the bottom line here is that, for the band, there is a claim for any losses actually suffered. I think the claiming of the deposit is a non starter as it is likely to be a penalty.

Having said that, I think there are good grounds to defend on the basis of:

a) That there is no contract in existence;
b) That the band recognised that there is no contract in existence and hence changed the T's and C's;
c) Even if (which is denied) there is a contract, then the payment of 75% of the total charge is a penalty and therefore not enforceable;
d) Even if (which is not accepted) the Claimants have a claim for actual losses suffered, the Claimant is put to strict proof as to what these losses are. Further, the Claimant is put to strict proof that it has mitigated its losses;
e) The Claimant is not entitled to interest pursuant to the County Courts Act or otherwise as no sum is due. On the same basis, the Claimant is not entitled to Court costs or any other costs.
f) In the circumstances, the Claimant is not entitled to the sum claimed or any sum whatsoever.

There you go OP - that's your Defence pretty much written.... Will need a bit of adaptation to refer to any Particulars of Claim and the specific terms of the contract, but that is your starter for 10.

In my view, the band will not pursue this.

Equaliser123

Vomityspice wrote: »

As another MSE'er pithily put it, I would suggest that they 'see me in court'. I suspect they won't bother as they are very likely to lose and have to pay reasonable costs to the OP. Note that the current Litigant in Person rate is £9.25 per hour, and don't forget to add in any time you would be required to take off work to deal with it. A quick draft schedule of losses might indeed encourage them to go away and stop wasting your time.

Agree with all you say other than this would be dealt with by small claims so the LiP rate won't apply.

Vomityspice

Equaliser123 wrote: »

Agree with all you say other than this would be dealt with by small claims so the LiP rate won't apply.

Oooops! Absolutely right!

Note to self: Must try harder next time!

Spartacus_Mills

Equaliser123 wrote: »

Hmmm. Not frothing.

And the difference between liquidated and unliquidated damages is more than semantics!!!!!!!!!!

They are two sides of the same coin. Point is there is a difference between that and a straight penalty which I think they are asking for.

So wind your neck in and stop acting like a jerk, well at least do not be rude. HTH.

Takoda

Optimist wrote: »

I am not commenting on this particular case but in principle I would disagree with number 2/3 it is perfectly possible to make
a contract via email and something done by many businesses in this electronic age.

This was even accepted in court as late as last year (Grant v Bragg) and even though the case was overturned on appeal
earlier this year, the grounds for the it being overturned were for other reasons rather than the email correspondence.

But I am discussing this particular case.

I have been trying to think of anything I've ever ordered on t'internet where I didn't have to pay up front and I can't think of anything.

Any business worth its salt is going to want a deposit of some sort rather than just trusting a customer to 'do the right thing'. They could lose hundreds of pounds that way!

Equaliser123

Spartacus_Mills wrote: »

They are two sides of the same coin. Point is there is a difference between that and a straight penalty which I think they are asking for.

So wind your neck in and stop acting like a jerk, well at least do not be rude. HTH.

Eh? No idea what you are talking about. How can you relate these circumstances to 2 sides of the same coin???

Equaliser123

Takoda wrote: »

But I am discussing this particular case.

I have been trying to think of anything I've ever ordered on t'internet where I didn't have to pay up front and I can't think of anything.

Any business worth its salt is going to want a deposit of some sort rather than just trusting a customer to 'do the right thing'. They could lose hundreds of pounds that way!

Hear what you say but this isn't a traditional internet business.

I think there are arguments both ways as to whether a contract was formed. I agree with others that it probably hasn't.