Garden equipment hire, cancelled

Aylesbury_Duck

LarryR said:

Aylesbury_Duck said:

LarryR said:

the_lunatic_is_in_my_head said:

The question is why didn't the OP get any "contract" or information, was it sent by email or post and not received and if so would the act of sending comply with providing?

They maintain they sent it by email, but I didn't receive it. Even in my spam folder?!? But surely, that's going to come down to their word against mine?! They said that in their contract it even says "When a booking has been accepted by the Client and the Supplier whether verbally, electronically or written, that booking is confirmed. The fact that the contract has not yet been signed and returned does not invalidate the booking or acceptance of these terms."

MattMattMattUK said:

LarryR said:

Aylesbury_Duck said:

Is this is a B2B transaction?  It may affect how this plays out.

Sorry, forgot to answer this. No, it was a private transaction.

Just for clarity on this, as to me it does not make total sense.

LarryR said:

I said I'm sorry but there's no way I can pay the full amount, especially if the event is not going ahead. They have subsequently emailed that they have no choice but to pursue me through the courts to recover their costs - which is the full amount (about £1125) 

How does the event not going ahead make a difference to if you can pay if the event was not on a commercial basis? Eg. if it were private, surely you have the money regardless. If it was commercial that makes more sense as you would be expecting revenue from the event itself to cover the cost.

All I was saying here was that as with most people, I'm not made of money, and can't really afford to just give them the money for nothing, if you know what I mean?

This general principle always puzzles me.  You clearly can afford the money, because if the event went ahead you would be spending it, as you had planned to.  How would you have afforded it if the weather was good and it was going ahead?

It's like people that have lost money on cancelled holidays in the pandemic - they often say "it's money I can't afford to lose", which surely means it's money they couldn't afford to spend, so why book the holiday?

Back to the question at hand, you appear to have a choice.  Work with them to negotiate a sum that mitigates their genuine losses, or take the chance that they will pursue the full sum and hope that the lack of a written contract, deposit, etc. means a court would find in your favour.

As the_lunatic_is_in_my_head said (probably better than I did) "I think the OP means they can't bear the thought of paying out a grand for something that isn't going to happen. ". I could afford it, especially if it went ahead.

I'm sympathetic to their situation and that they're out of pocket, but I thought that working in a business where things like weather can affect things, they would almost build cancelations, etc. into their cost of doing business. Never occurred to me that without seeing/signing a contract or paying a deposit, they would have actually gone ahead and sent me anything? That would have been a huge risk on their part ... but then again, I guess they were working on good faith and that I sounded like I was definitely going ahead with it.

MattMattMattUK said:

If they went to court they would need to present evidence that they sent the email, their word would not count in respect to that, even a printout of the email would not necessarily count, they might need something certified from an IT professional. Contracts can be verbal, but that does have an impact on terms and conditions, cancellation etc.

They said their invoice system automatically sends out the contract, so they could conceivably evidence that ... but that doesn't mean I received it? 

How would I even word a negotiating email so as not to tie myself in knots and say something I shouldn't? Is there a template or things I should/shouldn't say?

Thanks everyone

I think you need to be careful.  Whilst I think the company has a reasonable claim for some recompense, and you come across as reasonable and understanding, I'd heed Jumblebumble's advice and at this stage, politely decline to pay up.  At this stage, the company hasn't sent any formal invoice (have they?) and it sounds like they've only indicated they'll go to court rather than actually sending you a letter before action or similar.

If/when they do move to the next stage, then come back for advice.  To go to them with negotiation now, whilst demonstrating your reasonableness, might prompt action you need not take.  They may simply determine it's not worth taking things beyond your polite statement that you don't believe you owe them anything.

the_lunatic_is_in_my_head

LarryR said:

Aylesbury_Duck said:

LarryR said:

the_lunatic_is_in_my_head said:

The question is why didn't the OP get any "contract" or information, was it sent by email or post and not received and if so would the act of sending comply with providing?

They maintain they sent it by email, but I didn't receive it. Even in my spam folder?!? But surely, that's going to come down to their word against mine?! They said that in their contract it even says "When a booking has been accepted by the Client and the Supplier whether verbally, electronically or written, that booking is confirmed. The fact that the contract has not yet been signed and returned does not invalidate the booking or acceptance of these terms."

MattMattMattUK said:

LarryR said:

Aylesbury_Duck said:

Is this is a B2B transaction?  It may affect how this plays out.

Sorry, forgot to answer this. No, it was a private transaction.

Just for clarity on this, as to me it does not make total sense.

LarryR said:

I said I'm sorry but there's no way I can pay the full amount, especially if the event is not going ahead. They have subsequently emailed that they have no choice but to pursue me through the courts to recover their costs - which is the full amount (about £1125) 

How does the event not going ahead make a difference to if you can pay if the event was not on a commercial basis? Eg. if it were private, surely you have the money regardless. If it was commercial that makes more sense as you would be expecting revenue from the event itself to cover the cost.

All I was saying here was that as with most people, I'm not made of money, and can't really afford to just give them the money for nothing, if you know what I mean?

This general principle always puzzles me.  You clearly can afford the money, because if the event went ahead you would be spending it, as you had planned to.  How would you have afforded it if the weather was good and it was going ahead?

It's like people that have lost money on cancelled holidays in the pandemic - they often say "it's money I can't afford to lose", which surely means it's money they couldn't afford to spend, so why book the holiday?

Back to the question at hand, you appear to have a choice.  Work with them to negotiate a sum that mitigates their genuine losses, or take the chance that they will pursue the full sum and hope that the lack of a written contract, deposit, etc. means a court would find in your favour.

As the_lunatic_is_in_my_head said (probably better than I did) "I think the OP means they can't bear the thought of paying out a grand for something that isn't going to happen. ". I could afford it, especially if it went ahead.

I'm sympathetic to their situation and that they're out of pocket, but I thought that working in a business where things like weather can affect things, they would almost build cancelations, etc. into their cost of doing business. Never occurred to me that without seeing/signing a contract or paying a deposit, they would have actually gone ahead and sent me anything? That would have been a huge risk on their part ... but then again, I guess they were working on good faith and that I sounded like I was definitely going ahead with it.

MattMattMattUK said:

If they went to court they would need to present evidence that they sent the email, their word would not count in respect to that, even a printout of the email would not necessarily count, they might need something certified from an IT professional. Contracts can be verbal, but that does have an impact on terms and conditions, cancellation etc.

They said their invoice system automatically sends out the contract, so they could conceivably evidence that ... but that doesn't mean I received it? 

How would I even word a negotiating email so as not to tie myself in knots and say something I shouldn't? Is there a template or things I should/shouldn't say?

Thanks everyone

If you are considering not paying and the company intend to actually go down the small claims route you'd have 2 points to defend on.

The first being that you didn't receive any durable information.

The second being the possibility that the information they provide doesn't meet the requirements for you to be bound by the contract. 

I would clarify the second point by requesting they resend the information (don't say why you want it, just email and ask for it) as if it doesn't comply you have a solid win. 

LarryR

I will ask them to resend the contract, what specifically am I looking for, what would make it non-compliant?

Aylesbury_Duck said:

I think you need to be careful.  Whilst I think the company has a reasonable claim for some recompense, and you come across as reasonable and understanding, I'd heed Jumblebumble's advice and at this stage, politely decline to pay up.  At this stage, the company hasn't sent any formal invoice (have they?) and it sounds like they've only indicated they'll go to court rather than actually sending you a letter before action or similar.

If/when they do move to the next stage, then come back for advice.  To go to them with negotiation now, whilst demonstrating your reasonableness, might prompt action you need not take.  They may simply determine it's not worth taking things beyond your polite statement that you don't believe you owe them anything.

They have sent me an invoice reminder for the equipment, for the date.

The last communication from them included a 'Notice Before Legal Proceedings' advising me that I had failed to submit payment, and that they are 'in the process of submitting our application to your local county court for recovery of the outstanding balance together with interest and maximum compensation costs under the late payment legislation'. It goes on to say to avoid this action I can pay the outstanding amount within 10 days.

red_boots2

I have had issues before where companies have claimed they have sent me something via e-mail and I've not received it. 7/10 of they haven't sent it but 3/10 they've sent it to an incorrect e-mail address ie: .COM not .CO.UK is it possible the latter  has happened? 

LarryR

It's not impossible, but I know they have my correct email address as they have sent the other emails to it. I have had the odd issue in the past, where friends/family have sent me an email but it never arrived? So there's a small chance they sent it and it disappeared in the ether somewhere?!? But then you would expect them to chase up with a phone call or another email saying 'just checking you got the contract and are happy with it'. I didn't hear anything from them until I rang them the evening before the event to check they had received my cancellation email?!

Aylesbury_Duck

LarryR said:

I will ask them to resend the contract, what specifically am I looking for, what would make it non-compliant?

Aylesbury_Duck said:

I think you need to be careful.  Whilst I think the company has a reasonable claim for some recompense, and you come across as reasonable and understanding, I'd heed Jumblebumble's advice and at this stage, politely decline to pay up.  At this stage, the company hasn't sent any formal invoice (have they?) and it sounds like they've only indicated they'll go to court rather than actually sending you a letter before action or similar.

If/when they do move to the next stage, then come back for advice.  To go to them with negotiation now, whilst demonstrating your reasonableness, might prompt action you need not take.  They may simply determine it's not worth taking things beyond your polite statement that you don't believe you owe them anything.

They have sent me an invoice reminder for the equipment, for the date.

The last communication from them included a 'Notice Before Legal Proceedings' advising me that I had failed to submit payment, and that they are 'in the process of submitting our application to your local county court for recovery of the outstanding balance together with interest and maximum compensation costs under the late payment legislation'. It goes on to say to avoid this action I can pay the outstanding amount within 10 days.

Oh wow, then it's a lot further forward than I thought it was.  In which case, follow lunatic's advice.

sheramber

I did receive several emails months after they had been sent.

Similarly, a friend  had problems with not receiving emails.

It was  explained that they were stuck in the server for some reason.

LarryR

So I have a copy of their contract and it's very confusing. For example:

2. Booking Confirmation

When a booking has been accepted by the Client and the Supplier whether verbally, electronically or written, that booking is confirmed. The fact that the contract has not yet been signed and returned does not invalidate the booking or acceptance of these terms.

A contract will be issued immediately to the Client and should be signed and returned within 5 days of its issue date. The Supplier will also receive a contract and should be returned within 5 days of its issue date.

Any alterations to this booking must be brought to the attention of the agent who will continue to act as a negotiator. Once all parties have agreed on the alterations the contract will be amended by the agent and re issued.

3. Payment of Fees

A deposit invoice will be issued to the Client with the booking contract and must be paid strictly within 5 days of the issue date. Deposits are paid via BACS transfer only. Deposits are non-refundable.

As of the 10th March 2020 a 40% deposit will be required to book until the Corona virus pandemic has subsided.

The Client must pay the remainder of the balance to the agent 2 weeks prior to the event.

If payment due to the Supplier is not received prior to their performance time, the Supplier reserves the right to terminate the booking contract without penalties. The Client will be liable for cancellation fees as outlined in section 4 – Cancellations by the Client.

If the deposit is not paid within the 5-day period as stated previously then this may be perceived as a breach of contract therefore would free the Supplier from contractual ties. The Client will still be held accountable and liable for the booking deposit.

4. Cancellation by the Client

The Client reserves the right to terminate the contract ONLY in the case of a Force Majeure Event (including national mourning, war, fire, strikes and lockouts directly affecting the venue) the Client must inform the agent as soon as reasonably practicable on becoming aware of the Force Majeure Event. The agent will then notify the Supplier of the cancellation as soon as reasonably practicable after being notified by the Client.

In the event of a cancellation by the Client due to a Force Majeure Event, the Supplier will endeavour to secure an alternative booking on the event date with either the agent or another agency that the Supplier works with.

As it currently stands on the 10th March 2020, there is no official government policy regarding the running or cancelling of events due to the Coronavirus COVID-19. As such the Coronavirus COVID-19 can’t be used as an excuse for Force Majeure which doesn’t exist in civil law (only in contract law). A Force Majeure event has to make the event "impossible to run" not just difficult which Coronavirus does not qualify for.

If the Client terminates the contract for any other reason than a Force Majeure Event the Client will be liable to pay a cancellation fee, in addition to loss of the deposit, calculated as follows:

As of the 10th March 2020 any bookings affected by Coronavirus will have the option to postpone the event within and up to 6 months after the original event date. This will stop cancellation charges however the 50% deposit is still required regardless and the remaining balance paid 2 weeks prior to the new event date. If the event cannot be postponed within the 6 month window, the full Cancellation fee is due.

If cancellation is made within 48 hours of confirmation then no cancellation fee is due unless the event is within the following 7 days, in which case the full fee will be due.

If cancellation by the Client is made up to 90 days before the event, then 50% of the total remaining balance is due.

If cancellation by the Client is made up to 61 days before the event, then 75% of the total remaining balance is due.

If cancellation by the Client is made within 60 days of the event, then 100% of the total remaining balance is due.

All cancellation fees will be paid to the agent within 14 days of the event date. The agent will then forward the fees on to the Supplier within 7 days of receipt of clear funds.

If cancellation fees are not received within the 14-day period stated previously we may take legal action or refer the amount to a debt recovery agency.

Clause 2 sounds unfair and sort of says there's no point in having a contract and the end of clause 3 states that without a deposit they're "free of any contractual ties", although I am still liable for the deposit?!?

Does this sound like a confusing/non compliant contract to anyone else? Or is this pretty standard?

pinkshoes

When a booking has been accepted by the Client and the Supplier whether verbally, electronically or written, that booking is confirmed. The fact that the contract has not yet been signed and returned does not invalidate the booking or acceptance of these terms.

Ok, that's imply there is a contract in place. Although can they prove they sent you the T&Cs?

A contract will be issued immediately to the Client and should be signed and returned within 5 days of its issue date. The Supplier will also receive a contract and should be returned within 5 days of its issue date.

You didn't get a contract so did not return it. Why did they not flag this up? Nor did they return a contract to you. Too much of a coincidence...?

A deposit invoice will be issued to the Client with the booking contract and must be paid strictly within 5 days of the issue date. Deposits are paid via BACS transfer only. Deposits are non-refundable.

Why did they not issue this either?

But by their own T&Cs... you only cancelled 4 days before the event so 100% of the fee would be due. They would need to mitigate this loss e.g. no delivery costs, no wage costs for staff to load and unload a lorry.

Seems to be mistakes by both parties here. 

Who were the company? 

pbartlett

you cannot have the t&c above as part of the contract if you have not seen them and had a chance to accept or reject them. They can't say a contract is formed at the point you speak to them and then send you t&c later (or not at all)