Breach of contract - can I sue?

George_McW

I'll try to put my case as simply as possible. All advice gratefully received.

I am a musician, and my band (four people) was booked to perform for a couple of hours at a wedding, for £500. Everything was confirmed and finalised, but then within a month before the date the client withdrew the booking (apparently under pressure from a family member who wanted a different style of music). More details below...

The client initially searched google, found my website, and called me up, we had a few phone calls over a few weeks where the details were agreed and then confirmed. Then we moved onto email where I clarified the booking and sent an invoice. The client said OK, and didn't raise any issues or problems until a month later when he asked if we could perform a slightly different style of music. Apparently a family member was keen to have a slightly different style.

I responded that the style of music the family member wanted was not really our thing, but that we'd do our best. After all, the original booking was made on the strength of our website and video clips which give a clear idea of our style. Then, a couple of weeks later, the client said the booking was off because the family member wanted a different band. He apologised, and said he'd send the 10% deposit (which he already should have sent by that point) as a forfeit.

His idea was that the deposit would cover the cancellation, but I never said that the deposit was for that purpose. Indeed I gave no purpose for the deposit, other than that it would firm up the booking. I returned the deposit via recorded mail so as not to prejudice myself.

We don't have a tightly worded contract with terms and conditions, but we do have a clear invoice and email trail which the client OK'd and did not query.

We have tried to find alternative booking for the date in question, but have not succeeded. My colleagues have told me to lodge a small claim against the client in the county court because he has not honoured the clear and unambiguous agreement we had to perform at his wedding. It's not like we turned down other work so we can't prove that we have damages because the client messed us around. However, we have lost out on work that was promised us, and I'm told this is enough grounds to sue for breach of contract.

I do not have the client's home address, but I do have his work email and therefore his work address. I also have the bride's work address and work email. I have checked the electoral roll but cannot find their home addresses. I'm aware that I need an address to sue - will the work address be OK? Presumably since he was conducting this booking from his work email it'd be OK to use his work postal address?

If you can tell me what points of law I need to brush up on that would be great. And also how to defend my claim when he might reply "well you didn't get offered any other work that day so it's not like you're out of pocket".

Many thanks

S3quence

IMO You don't stand a chance. If the deposit wasn't to cover for cancellations then what was it for? I would take this as a lessons learnt and ensure that next time you have properly worded contract in place before confirming the booking. Something which asks for an initial deposit and then maybe a % payable if the job is cancelled within a certain period (e.g. a month) (50% if cancelled within 30days 90% within 5 days etc...)

somethingcorporate

Tough situation, I think you will find it quite hard going.

You are the "business" and your failure to have a formal contract without any explicit cancellation terms will not reflect well on you. Use this as a learning excercise to get a contract in place for future bookings.

Good luck, if it were me I would move on because it will probably be a lot more effort than it is worth, especially the harm the person could do to your reputation for a) being unprofessional with regards to having no contract and b) suing a customer for cancelling when you have no contract or cancellation terms in place.

Chalk this up to experience.

(just my opinion, IANAL!)

George_McW

Thanks for your prompt feedback. I now have cancellation terms (depending on date) on my booking form, and I also make it my business to get the client's address beforehand. So it's good to have an experience to learn from.

But, are you suggesting that without a full contract they can treat me how they want? For example, if the client cancelled on the morning of the event, are you suggesting that I'd have no chance?

As I see it the deposit it was just a goodwill payment to show some commitment on the part of the client. It would be interesting to know what a lawyer's view of a deposit is. Certainly I never asked for a 'non-refundable deposit which would cover all cancellation no matter how unreasonably you treat me'

I would be surprised if the client could harm my reputation. I have 100s of happy clients who book, enjoy and pay me. What riles me in this case is that the client booked me, the client would have loved me, but a meddling family member got involved and starting messing things around. If it wasn't for the family member there would have been no problem, and my professionalism would not have been questioned.

paddyrg

I'm in the 'walk away with your head held high' camp. Sometimes clients flake out, that's a cost of doing business, and they did the decent thing leaving you with the 10%.

If you wanted to sue, could you prove you had suffered costs of £500? I think your chances in court would be limited.

Savvy_Sue

Out of interest, what did you say when you returned the cheque for the deposit? Because I think I might have held onto it while I tried to get at least a promise of more, but as the others say I think you're unlikely to get more. And now you've returned the deposit ...

S3quence

George_McW wrote: »

But, are you suggesting that without a full contract they can treat me how they want? For example, if the client cancelled on the morning of the event, are you suggesting that I'd have no chance?

Its not treating you how they want they have changed their mind there is no obligation for them to hire you without a contract or some kind of terms of conditions in place. I would consider it decent if the deposit wasn't non refundable that they sent it at all

George_McW wrote: »

As I see it the deposit it was just a goodwill payment to show some commitment on the part of the client. It would be interesting to know what a lawyer's view of a deposit is. Certainly I never asked for a 'non-refundable deposit which would cover all cancellation no matter how unreasonably you treat me'

My experience if you pay a deposit to secure a service/product then you expect to lose it if you cancel. Otherwise I don't see the point in paying a deposit?

I dont necessarily think you have been unreasonably treated that just how things are. Im sure you yourself have agreed to buy something and thought about it later on and decided not to go for it. I know I have!

Meepster

George_McW wrote: »

As I see it the deposit it was just a goodwill payment to show some commitment on the part of the client. It would be interesting to know what a lawyer's view of a deposit is. Certainly I never asked for a 'non-refundable deposit which would cover all cancellation no matter how unreasonably you treat me'

The deposit covers whatever you state it to in the contract. But from what I can see, you don't have a binding contract. The invoice you sent, I am presuming, was a cost for the services you were to provide. However, these services weren't provided (at the buyers request).

To have any chance of progressing this, you need to have some confirmation (even implied) of their acceptance of your terms and conditions.

If I was you, I'd be thinking I was very lucky that they are willing to pay 10%.

Horace

You need to put this down to experience and sort yourself out some proper contracts and terms & conditions. The Musicians Union can help you out with music contracts if you are a member.

I have worked with bands (I managed one for a time and advise one now) in the past and I know how difficult it can be. I ensure that all my contracts are in writing and are clear. I will always take a non-refundable deposit and have a cancellation policy so if someone cancels an event that I am organising for them one month before the event is due to take place then the full cost needs to be paid - I don't start work until that contract has been signed either and the deposit paid.

It may just have been an excuse about a meddling family member used by the client as a way of getting out of the booking - I have heard lots of varying excuses in my time. If you had a proper contract then if they cancelled on the actual day you would still be paid in full but because there isnt a proper paper trail and the prospective client hasn't signed anything then it is your word against theirs. As I see it that until this client cancelled your terms were fairly wishy washy with regard to the deposit that you send back. Lots of places have non-refundable deposits even wedding venues who can ask for £2-3K as a deposit depending on the size of the venue etc. There is one AV company that I work with who always asks for a 50% non-refundable deposit upfront. So asking for a non-refundable deposit isnt unusual.

I think that the mere fact that you only had work email addresses is enough to set alarm bells ringing - if they were genuine then they would have provided their home addresses from the off. I have been stung before which is why I have air tight contracts for everything that I do.

To help you get more work - why not list yourself with some entertainment agencies? Some will allow free listings that way you not purely reliant on your website for clients. If you have a manager then you could ask him/her to get you some gigs.

George_McW

Thanks Horace. For some reason the MU contract has nothing whatsoever about cancellation policy - see w w w.musiciansunion.org.uk/wp-content/uploads/2010/05/L1-Hiring-a-Band.pdf

I wonder why they've failed to include that?

A friend suggested I used something like the following:


Cancellation received more than 50 days before the event date: 25%
Cancellation received between 21 and 50 days before the event date: 50%
Cancellation received between 7 and 21 days before the event date: 75%
Cancellation received between 7 days or less before the event date: 100%

What do you think? What would be best?

Horace

George_McW wrote: »

Thanks Horace. For some reason the MU contract has nothing whatsoever about cancellation policy - see w w w.musiciansunion.org.uk/wp-content/uploads/2010/05/L1-Hiring-a-Band.pdf

I wonder why they've failed to include that?

A friend suggested I used something like the following:


Cancellation received more than 50 days before the event date: 25%
Cancellation received between 21 and 50 days before the event date: 50%
Cancellation received between 7 and 21 days before the event date: 75%
Cancellation received between 7 days or less before the event date: 100%

What do you think? What would be best?

I would say cancellation received more than 50 days before the event, 25%, 50 days before the event 50%, 10-21 days before the event 75% and 7 days or less before the event 100%

Here are some excerpts from my old Sponsalis wedding planning contract (am no longer trading as Sponsalis having changed my business entirely). It was drawn up by my lawyer.

COMPENSATION

In the event that the event does not go ahead, then SPONSALIS will submit an invoice to the client for all works undertaken to date on the same terms contained in clause 5 above.

6. COMMENCEMENT DATE

Services will not begin until the signed contract and deposit are received by SPONSALIS. Failure to submit the required deposit with the signed contract shall constitute a breach of the contract and SPONSALIS may take action for the said breach of contract any claim to include interest at the standard rate contained in clause 5 above.

7. CANCELLATION OF EVENT

If EVENT is cancelled through no fault of SPONSALIS then SPONSALIS will send an invoice to client at the hourly rate currently in force. If CLIENT cancels EVENT for any reason including Force Majeure* which incurs a cancellation penalty from EVENT service providers, suppliers or vendors any and all such penalty amounts shall be the responsibility of CLIENT and shall be paid directly by CLIENT. (*Force Majuere is defined as acts of God, including hurricane, earthquake, flood, volcanic eruption, tornado, famine, war, government laws, regulations or other governmental action of any kind, civil disorder, fire, accident or other casualty, disaster, strike, lockouts or labour disputes, inability to obtain labour, materials, food, fuel, electricity, general operational services or reasonable substitutes, curtailment of transportation facilities, any other civil or governmental emergency, certain economic factors). Regardless of reason for cancellation client is responsible for any obligations or penalties and these are paid to the creditor and not through SPONSALIS.

Hope this helps? I shall have a look through some music contracts too and see what they say, I am sure that I have put in similar cancellation clauses as I noted above.