Reply to: Legal Action by Employment Business

[TheFaQQer]

Had a chat with their solicitors. They point of breach according to them is following (which is part of Schedule)

Acceptance of this agreement warrants that the consultancy staff will commence work on the date agreed herein and will deliver the services in accordance with this schedule of consultancy services.

He said, if I had gone to the client the first day and handed in my notice, wouldnt have been a problem. But since I terminated before starting, that's why they are claiming for damages.

They believe you have breached the contract because you committed to starting and then didn't, even though you gave notice in line with the contract. If you had started and then given notice, then they wouldn't be claiming breach.

Speak to a professional now and see what they say regarding whether you breached the contract or not. Make clear the point that their solicitor is making, and see what they say.

I don't think it's a breach, but I'm not a lawyer, so am quite happy to be proven completely wrong here. You're now at the stage where a 30 minute chat with a professional will let you know whether you'd win or not, and from there you can work out your fight / defence,

[tractor]

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Sorry, can you please explain?

This is how everyone interprets the notice situation when a contract is withdrawn before commencement and a poster is asking 'can I sue for losses'. In that situation, it is impossible to prove a loss, so why is it any different when the boot is on the other foot?

The big question here for me is; did I really breach contract by not starting and giving 2 weeks formal notice?

Part one: Did you breach the contract? If the contract did not start until two weeks after you notified your intention to not commence, arguably, there was no contract to breach. You declined it before it commenced. I really don't know the legal position on this and I would press your solicitor further to justify his response and make sure he understands exactly what the facts and the order of events are.

Par two. There are several threads recently in this very fora where an agent/client has cancelled a contract after it was signed but before it was due to start hence boot being on the other foot and sorry to mix metaphors but the collective advice (quite correctly IMO) is that the contractor does not have a leg to stand on wrt claiming for losses or compensation. My question is why are the two situations different from one another? IMV, the two are the same and in your situation, the agent can claim anything he likes but it is unlikely to stand up in court.

If you are an IPSE (PCG) member, then you can call their legal helpline and ask for some further advice.

Caveat; without actually reading your contract in its entirety, it would be impossible to match experience with the finer points of your situation. There could be many blanket clauses that cover agency losses where you can be held liable without limitation. I have seen many contracts where the agent's initial position is thus. I always have those clauses removed because they effectively negate the limited liability your company structure offers you. If the agent doesn't move on it, I move on and find something else. Usually they do. This is why contract reviews are so important.

[mdhd]

Sorry, can you please explain?

This is how everyone interprets the notice situation when a contract is withdrawn before commencement and a poster is asking 'can I sue for losses'. In that situation, it is impossible to prove a loss, so why is it any different when the boot is on the other foot?

The big question here for me is; did I really breach contract by not starting and giving 2 weeks formal notice?

My understanding is that it is up to the agent to mitigate any potential losses regardless of how they occurred and they also have to prove that in court. If they sat on their backside instead of replacing the OP, then any loss is their fault.

This is how everyone interprets the notice situation when a contract is withdrawn before commencement and a poster is asking 'can I sue for losses'. In that situation, it is impossible to prove a loss, so why is it any different when the boot is on the other foot?

[tractor]

...

Clause 10.4 allows the agent to sue for losses incurred

If the agent placed another contractor to start on the 1st Oct, they didn't make a loss

If you have any contacts at the original client perhaps you should make enquirers as to when/if the position was filled

My understanding is that it is up to the agent to mitigate any potential losses regardless of how they occurred and they also have to prove that in court. If they sat on their backside instead of replacing the OP, then any loss is their fault.

This is how everyone interprets the notice situation when a contract is withdrawn before commencement and a poster is asking 'can I sue for losses'. In that situation, it is impossible to prove a loss, so why is it any different when the boot is on the other foot?

[Magpie252]

Had a chat with their solicitors. They point of breach according to them is following (which is part of Schedule)

Acceptance of this agreement warrants that the consultancy staff will commence work on the date agreed herein and will deliver the services in accordance with this schedule of consultancy services.

He said, if I had gone to the client the first day and handed in my notice, wouldnt have been a problem. But since I terminated before starting, that's why they are claiming for damages.

Clause 10.4 allows the agent to sue for losses incurred

If the agent placed another contractor to start on the 1st Oct, they didn't make a loss

If you have any contacts at the original client perhaps you should make enquirers as to when/if the position was filled

[mdhd]

Had a chat with their solicitors. They point of breach according to them is following (which is part of Schedule)

Acceptance of this agreement warrants that the consultancy staff will commence work on the date agreed herein and will deliver the services in accordance with this schedule of consultancy services.

He said, if I had gone to the client the first day and handed in my notice, wouldnt have been a problem. But since I terminated before starting, that's why they are claiming for damages.

[mdhd]

Just checked, it is actually a solicitor's firm. So no doubt there. But they are being misled, that's for sure.

Start checking the firm out - Wonga got done for pretending to be a legal firm when they weren't, and a number of banks legal departments have a tendency to pretend to be solicitors when they aren't.

If the firm doesn't check out, and they are pretending to be solicitors, then speak to the SRA.

(Link to story about the banks doing it)

[TheFaQQer]

Came from a solicitor firm.

Start checking the firm out - Wonga got done for pretending to be a legal firm when they weren't, and a number of banks legal departments have a tendency to pretend to be solicitors when they aren't.

If the firm doesn't check out, and they are pretending to be solicitors, then speak to the SRA.

(Link to story about the banks doing it)

[TheFaQQer]

Sorry, I am taking everything seriously.

If I get a solicitor to write a letter. And they go to court, can I claim back all my costs (e.g. getting the letter written, time spent by myself according to my daily rate etc.)

If you win, then you can claim your fixed costs - filing fee, travel expenses, loss of earnings related to your appearance at the court. You can't claim solicitor's charges though.

Unless the court rules that the other party has acted unreasonably, in which case the court could award costs.

[tractor]

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Sorry, I am taking everything seriously.

If I get a solicitor to write a letter. And they go to court, can I claim back all my costs (e.g. getting the letter written, time spent by myself according to my daily rate etc.)

I believe you can claim them but not if they give up before the court date. So beware of them letting you rack up a great big bill and then withdrawing. Even if it does get as far as court, even though you are able to claim costs, they still may not be awarded or not in full.

My approach would be to supply your evidence in writing and by recorded delivery and then forget about it until and if a summons arrives. Any lawyer would be remiss and probably unprofessional letting something so cut and dried go to court because the court would have a field day - they dislike frivolous claims intensely.

Also, remember that IANAL and if you are worried, a half hour with a solicitor would probably set your mind at rest. Just remember to take all the pertinent information, contracts, schedules, correspondence and your notice letter with you.

[mdhd]

Sorry, I am taking everything seriously.

If I get a solicitor to write a letter. And they go to court, can I claim back all my costs (e.g. getting the letter written, time spent by myself according to my daily rate etc.)

The remark was kinda tongue in cheek but I am sure I read articles of people doing this and actually being successful. Probably Googling would be your best bet.

[tractor]

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Any sample for sending out letter stating charges for any extra effort to be put in this case?

The remark was kinda tongue in cheek but I am sure I read articles of people doing this and actually being successful. Probably Googling would be your best bet.

[mdhd]

Any sample for sending out letter stating charges for any extra effort to be put in this case?

It is not clear who the legal notice is from. It could easily be one of those cark park 'Polite Notices' that with a quick glance looks like 'Police Notice' It is quite possibly prepared by their in house janitor and holds no legal weight whatsoever.

Before you do anything else, supply them with a (recorded delivery) copy of your termination notice and a notification that you will be charging daily rate for any additional effort you are required to spend on such a frivolous matter.

[woohoo]

It is not clear who the legal notice is from. It could easily be one of those cark park 'Polite Notices' that with a quick glance looks like 'Police Notice' It is quite possibly prepared by their in house janitor and holds no legal weight whatsoever.

Before you do anything else, supply them with a (recorded delivery) copy of your termination notice and a notification that you will be charging daily rate for any additional effort you are required to spend on such a frivolous matter.

Also, send them a couple of references to sweeten the pill.

[TheFaQQer]

The Notice period clause is in Schedule (first part of the image). Is that what you meant?

Thanks for all your help.

The facts presented don't seem to be in dispute - you agree with them.

Then refer them to their point (ii) which clearly states that you need to give two weeks notice. Point out that you did this as per the contract on whatever the date was.

I would also refer them to the response given in the case of Arkell v Pressdram.