Breach of contract?

Notmyrealname

LTL wrote: »

Penalty clauses are unenforceable.

Really? You may want to read up on contractual law. UNFAIR penalty clauses are unenforcable (a last minute cancellation charge is not unfair) but even then, that only applies to business to private contracts and not business to business which this is. It is a business to business transaction so all the protections for consumers do not apply.

Notmyrealname

Oke wrote: »

I intend to invoice them. What if they refuse to pay?
How do I prepare my case. The sum involved is less than £400.

You need to issue them a reminder after the due date has expired (you did set payment terms?). A couple of weeks later you need to issue them a statement of account with the amount outstanding and a period to pay. You then need to issue a final demand after that date giving them a period to pay. You then need to send them a "Notice of Action" stating in it that if you don't receive cleared funds within 5 working days you will issue county court proceedings. And then if they still don't pay you then need to take them to county court. That'll all take around 2 to 3 months to get to that point. Once you decide to file, it'll be a few months or more before it gets to court.

If you lose, it is possible you can end up paying their costs so you need to be damned sure that you're able to actually justify what you're charging them for which is a whole lot harder when there's nothing in your terms of business, which I doubt you even have, that you didn't get them to sign to say you can invoice for 11th hour cancellations.

Its not just the money its the shabby treatment I had

Self employment is not for you - you need to have a thick skin and be able to brush things like this off otherwise you're going to have one hell of a miserable time. Stuff like this is commonplace. It is obvious you're used to the almost perfect world of employment in the public sector where everything is done pretty much "by the book" with over generous allowances made. This is business in the private sector and it isn't a bed of roses. Customers will cancel at the last minute, they'll not pay or take months to, they'll drop you in it. That is why you have a water tight Terms of Business that clearly lays out your liabilities (such as liability for their losses arising from your actions), their liabilities (such as paying a fee for late cancellation and timescales in which invoices must be paid) which you get them to agree to whether you do one day or one years work for them.

If all the above upsets you, you need to seriously consider whether this is right for you and whether or not you'd be better going through an employment agency.

jobbingmusician

County court? I think not. Surely the Small Claims procedure was MADE for claims like this!

LTL

Notmyrealname wrote: »

Really? You may want to read up on contractual law. UNFAIR penalty clauses are unenforcable (a last minute cancellation charge is not unfair) but even then, that only applies to business to private contracts and not business to business which this is. It is a business to business transaction so all the protections for consumers do not apply.

You may wish to read up on contractual law yourself?

A clause determined as a penalty clause is unenforceable. A clause determined as a liquidated damage clause (unless deemed penal) is enforceable.

Notmyrealname

jobbingmusician wrote: »

County court? I think not. Surely the Small Claims procedure was MADE for claims like this!

For the love of god...

Where do you think small claims are heard?

Notmyrealname

LTL wrote: »

You may wish to read up on contractual law yourself?

A clause determined as a penalty clause is unenforceable. A clause determined as a liquidated damage clause (unless deemed penal) is enforceable.

And what do you think the difference is? Other than the amount, nothing. A liquidated damage clause is, in plain english, a penalty clause but one that is a value that reflects the loss.

Lordsvale Finance Plc -v- Bank of Zambia 1996, the following passage is often quoted at the court of appeal:

“Whether a provision is to be treated as a penalty is a matter of construction to
be resolved by asking whether at the time the contract was entered into the
predominant contractual function of the provision was to deter a party from
breaking the contract or to compensate the innocent party for breach ...
That the contractual function is deterrent rather than compensatory can be
deduced by comparing the amount that would be payable on breach with the
loss that might be sustained if the breach occurred.”

So as long as the amount in the clause in the contract is deemed to be of a value seen as compensatory, it is perfectly enforceable, i.e if you were to make it a charge of 4hrs. Where it wouldn't be enforceable is if you made it £1000 but didn't suffer that amount of loss due to the immediate cancellation.

The reason people have managed to get banks penalty clauses invalidated is because they weren't compensatory, i.e it didn't cost the bank £25 to send out an automated letter for example.

Uncertain

Notmyrealname wrote: »

For the love of god...

Where do you think small claims are heard?

Oh calm down!

Yes, one may be a sub division of the other and they normally use the same buildings but very different rules and procedures apply. As does the degree of risk in bringing a claim.

Oke

Thank you all again.
There seems to be a lot involved but I shall pursue it to as far as I am allowed without a solicitor. I have found the name of one of the co-owners and shall send a letter, (probably on the same lines as what I wrote in the original thread), to him. I shall let you know what the response is.. very likely a short shrift.

Notmyrealname

Uncertain wrote: »

Oh calm down!

Yes, one may be a sub division of the other and they normally use the same buildings but very different rules and procedures apply. As does the degree of risk in bringing a claim.

No they don't and no it doesn't. Small claims are held at county court. The only difference is you can file online and the fees are lower however the rules in regards to evidence, defence, turning up or automaitc losing etc are exactly the same as are the risks.