Are contracts of Services unenforceable?

[northernladuk]

Hello Dorkeaux
The work did start. I moved there. It takes 4 to 6 month to be recruited again due to background security and associated bureaucracy. During the time I didn't work. I have to feed people nontheless and pay for their stuff. Its real the loss. However, the grief of legal can be worth it. Many people say, forget it and move on. I would if I could.

The contract started but you weren't offered work as per the terms of that contract. Our contracts are time and materials and you didn't spend any time or materials. Contract is in place and working as it should, you just weren't offered work. If it had been a fixed price for delivery then yes you'd have a case but when the contract stipulates you get paid for time spent then nothing has gone wrong to chase.

There must be a contracts lawyer who can make a short meal out of something as simple as this.

Lawyers don't make a short meal out of anything. At over 100 quid and hour and same for each letter/email sent their short work is still going to be very expensive.

And again, I don't believe anything has gone wrong from what you've said.

But I'm not a lawyer of course but my advice is still worth every penny you've paid for it.

[sadkingbilly]

<TL: DR>

There must be a contracts lawyer who can make a short meal out of something as simple as this.

Thats my tuppence worth.

Well, when you find one, let us know how you get on.
That'll be £125.00 + VAT.
oh, and it's 'lose' not 'loose'

[Dorkeaux]

60kg of documents you say? Multi-millions of pounds won! Truly, your lawyers were awesome.
Why not call them up again?

[Ronnoco]

Hello Dorkeaux
The work did start. I moved there. It takes 4 to 6 month to be recruited again due to background security and associated bureaucracy. During the time I didn't work. I have to feed people nontheless and pay for their stuff. Its real the loss. However, the grief of legal can be worth it. Many people say, forget it and move on. I would if I could.

I am on my umpteenth contract in 40 years. It seems to me that the folklore around contracting is 'don't try to enforce a contract in court, you can only loose'. You might as well be packing boxes in tesco and paid by the hour for all these contracts for services are worth-so we believe.

I did take a case many years ago against a company and was advised by many lawyers- 'dont do it'. It was a case in which it was considered there was insufficient hard evidence apart from injury, loss of work and so on. Perhaps again 6 legal firms advised against it. I gave up, except an expert firm rang me and said they would take the case. I won the multi million pound claim. The firm who did the work told me after the case that in 20 years, they never lost a case. They were experts in a particular technical field. All along the way, I got the story, 'you will be destroyed financially'. The real lawyer, in this case gave me a different story on how it works even if you do loose. In the end I learned that what the win is really about is who has the nerve to take the case and put the financial fear of god into the other, is the one that wins. Its quite simple, you prepare the case in fine and exacting detail, took years, the case starts, each day is 10-20 grand, the opposition begins to sweat as their potential bill and compensation loss overshadows the cost of a quick payout. The opposition sweats as they begin to see a quality and logical legal preparation. My lawyer entered the court with two trolleys of documents, estimated 60 kg.

There are 7 tests to establish if a contract is valid. Once the contract is deemed valid, the lawyers set out a clear and irrefutable pathway. This is the basis for winning. Its not the folklore that counts.

There must be a contracts lawyer who can make a short meal out of something as simple as this.

Thats my tuppence worth.

[Dorkeaux]

Mate, leave it and move on. The work didn't even start!
These things happen. Often for legitimate reasons.
If you want to clog up your short life on this earth feeling hard done by and spending money on lawyers, feel free.
But I think your time and mental health is better served by looking for another contract.

[northernladuk]

NorthernLad

Thanks for moderating this.

You are welcome. I've been telling them I'm an ideal mod and I've been promised mod rights for about 3 years now. I think their request process for my mod rights must be a bit slow. I'll have to chase it up but well, you've seen how woeful they are so who knows when it will be granted.

This case was referred to 6 lawyers in all, each had a different answer varying from 'great case' to 'not a chance'. Each took a different position on why or why not it could be enforced. None of the reasons the case would fail or succeed were similar.

Odd that. Problem is when you engage lawyers the only people that come out of it smiling are the lawyers. If it's such a complex situation that 6 of them can't come up with the same answer I'd be thinking that most of them are angling for billable hours to see where it goes. The one thing you can take away from this is there is no clear result for you that's not gonna cost you 4 or even 5 figures to chase so it's simply not worth it.

Four out of six lawyers agreed I was misled in order to get me to sign the contract. The other two were indifferent and argued that only the contract counts and what ever you were led to believe before signing the contract verbally does not count.

Thing is.. no one is disputing that you've been mislead. I would agree but that doesn't mean you have any recourse. I would totally agree with the other two that the contract counts as well. That's exactly what I said. The odd thing is they could all agree you've been mislead but I'm surprised that only two think the contract that counts. The whole idea of having a contract is to clearly define the statements of the engagement. I'm very confused about this whole feedback. I'd expect all 6 to agree you've been mislead and all 6 then say that the contract counts. Whatever is said is just hearsay and doesn't count. Maybe it's the way you have read what they said and then fed it back to us? Dunno. Either way, outcome is same and my original comments stand (IMO) but IANAL.

In terms of loss, there is a substantial opportunity loss and it is real as i declined another project which naturally went ahead without me. The custom and practice in these contracts has been that the worker goes on site in some distant country and works at that site till end of job.

Unfortuantely I disagree. What you never had cannot be a loss. Who is to say that contract would have folded before you started. The law does not side on 'what ifs' or 'what could be'. Generally you have to prove a tangible loss to even meet the basic criteria to take it forward. Sorry, but it is what it is. You can't claim for 'what I might have lost'.

In UK contracting, "loss of opportunity" refers to damages awarded when a breach of contract or duty of care deprives a claimant of the chance to obtain a benefit or avoid a loss, requiring courts to assess hypothetical outcomes. Under UK Criminal law, fraud is defined as: making a dishonest representation for your own advantage or to cause another a loss. dishonestly neglecting to disclose information when you had a duty to do so.

It appears to me that contract recruitment agencies act with complete impunity in providing misleading information.

Yes they lie, we know that. We have a saying in contracting.. If an agents lips are moving they are lying... They are sales people trying to line their pockets and they will do anything to do that. We often have cases of agents offering 12 month contracts thinking that's attractive to us when we know that we will get paid for the work we do and that's it. The length of the contract and notice periods are irrelevant. It's part of the job I am afraid. The agent has lied to you, no one disuptes that, it's happened a lot but it's up to you to do your diligence to protect yourself. It appears you knew the next gig wasn't forthcoming from the outset so why did you not do something about it? To take that argument to court is going to be very difficult and very costly. It's going to be 'he says,she says' which never ends well.

I was hoping to hear form people who might actually have brought cases against recruitment agencies for misleading them.

Good luck with that. I think you will find 100's if not 1000's of us that have had recruitment agents be either liberal with the truth or outright lie. There is nothing we can do. They will just say they gave you the information confident it was going to happen but it didn't. You just can't prove it. The only way to resolve something like this is to take it legal and that is going to cost you a hell of a lot more than the value of the gig that you didn't get. It's simply not worth it.

Another example of agents devious lies is often when it comes to rate negotiation. Says 400 on the advert and at contract signing the rate seems to drop to 380 and the agent says that is all the client is offering. Do we believe them? Is it true? Do we take them to court for lying when we find it's not true and they are creaming off the top? No. We signed the contract, whatever happened up that point is just hearsay. Believe me, I wish we could sue every lying agent but it just won't happen.

If six lawyers haven't been able to help I'm not sure what a bunch of contractors can do sorry.

These are my opinions, it would be interesting to see if anyone else has a comment and if I'm wrong I'll come back and apologise but I don't think you are going to get a much different answer.

[Ronnoco]

NorthernLad

Thanks for moderating this.

This case was referred to 6 lawyers in all, each had a different answer varying from 'great case' to 'not a chance'. Each took a different position on why or why not it could be enforced. None of the reasons the case would fail or succeed were similar.

Four out of six lawyers agreed I was misled in order to get me to sign the contract. The other two were indifferent and argued that only the contract counts and what ever you were led to believe before signing the contract verbally does not count.

In terms of loss, there is a substantial opportunity loss and it is real as i declined another project which naturally went ahead without me. The custom and practice in these contracts has been that the worker goes on site in some distant country and works at that site till end of job.

In UK contracting, "loss of opportunity" refers to damages awarded when a breach of contract or duty of care deprives a claimant of the chance to obtain a benefit or avoid a loss, requiring courts to assess hypothetical outcomes. Under UK Criminal law, fraud is defined as: making a dishonest representation for your own advantage or to cause another a loss. dishonestly neglecting to disclose information when you had a duty to do so.

It appears to me that contract recruitment agencies act with complete impunity in providing misleading information.

I was hoping to hear form people who might actually have brought cases against recruitment agencies for misleading them.

[northernladuk]

Here you go.

So much better and inkeeping with the original post. Thank you

[jamesbrown]

Please try again.

Now you've done it.

[northernladuk]

Bah, just realised. It would have been funnier to put that all in to one paragraph wouldn't it.. Ah well... 'tis done now.

[northernladuk]

Finally managed to finish reading that and boy are my eyes burning but anyway, here is my thoughts.

Firstly you need to be very careful about what type of contract you have as it's absolutely key in your predicament. A contract OF service tends to be an employment contract. A contract FOR service is usually a short term piece of work. So in this case I am pretty sure you have a Contract FOR Service. This is important as the adhoc nature of the work is the problem here.

Another important correction. You have lost nothing because you never earned it. I know there is an expectation from you but that's all it is, an expectation. You do not incur a loss until you lose something. You've a loss of expectation but you've no material loss. You didn't work it so you don't get paid it. No loss. Very important because you cannot legally chase a loss until you've actually lost something. You 'could' sue for breach of contract but in this case you can't and I'll explain why next.

Right, on to the nitty gritty. Not sure what new answers you expect us to give if a lawyer has said no recourse but.. I'd agree... there is no recourse for you. A contract FOR service is, in simple terms, a time and materials contract. In there it will outline that you are given work, you do it, you get paid. That's it. Period. Our IT contracts tend to say you will get paid upon submission of a signed timesheet. You get paid for every day of work you do. You do NOT get paid for work you didn't do. It's as simple as that. They could put in 10 contracts for multiple years but until the client gives you work you have nothing to do and cannot get paid. I'm not going to get in to IR35 here but the concept of given work, do it, get paid is key to being outside IR35.

So in your situation you have a contract for two pieces of work with the clause in that contract that you get paid for the work you do. The client had work for 6 months, you did it, you got paid. He doesn't have work for 12 months, you don't do it, you don't get paid. It's possible for us to have a contract for two years, the clients gives no work but the contract is still in effect. The contract doesn't gaurantee work, it means you have terms for when the client gives you work.

I know it sucks but that is what it is. Think about Xmas and bank holidays. You can work on those days but you have them off because the client doesn't want you to do work. It's not your choice, it's theirs. They are effectively withdrawing work so you don't do it and don't get paid. It's not a holiday as many people treat it. That is the same concept, allbeit for a few days, that you are now in for the 12 months of worth. It is possible that the contract continues and at some point the client comes up with some work and you just rock up and do it, which is unlikely but it's the situation you are in if you get me.

So no, unenforceable and you should have been taking steps to find more work the minute you found out. Sounds like you knew this almost from the off so why did you wait 6 months before complaining about it? You knew there was only 6 months, take it as that, and start looking for more work as soon as possible.

[Ronnoco]

Perhaps somebody has encountered a similar situation and resolved this successfully: Large life time loss on faked contract.
I was contacted a UK agency specialising in engineering who wanted me to do work in Germany on a short 6 month contract which I refused. Some weeks later, they came back with a new 18 month contract which they informed me they had negotiated with the end client in Germany, 2 assignments involved of 6 months then 12 months. Fine I accepted and headed off into a blizzard to start work. Very quickly I learned from the end client that there was no second assignment and never had been, the second assignment was added in to the contract to spice up the offer so agency could gent a finders fee. There was a lengthy contract with numerous grey print clauses. Sort of standard. The agency recorded on several separate documents that the contract that it was for 18 months. I have been contracting about 35 years. At 6 months, the first assignment came to an end and the agent came back and said 'oh sorry about that, the client ran out of work for you'. The snag was that the chief engineer in Germany was a pal of mine from before, the agent did not know that I was fully appraised of the truth shortly after I arrived on site. There never was a second assignment. I contacted several lawyers, mostly they say that there is no recourse, that although I was misled, its only what is in print that counts and the expression 'assignment 1' followed by 'assignment 2' within an 18 month contract does not mean, they are obliged to give the second assignment. The German company even put it in writing for me-there never was an 18 month contract. The loss is tremendous as I was about to retire and made many arrangements on foot of the contract. But it seems that as Humpty Dumpty said 'When I say a word, it is exactly what I mean' ......What I received in very equivocal terms was 'its an 18 month contract-2 assignments in different departments'. According to what the legal people say, is that the use of 'assignment' implies that the contract duration is overwritten to mean what ever suits the agent in what ever way they wish it to mean. But this is nonsense, the words 'assignment', contract duration 18 month-have meaning. Effectively, the legal people tell me , that these standard contracts and expressions don't have any worthwhile meaning and that pre contract advice on meaning can also just also be rubbish talk. It happens that I did contract law in the area of labour as a speciality in University and the whole dilution of meaning seems to frame any contract as being worthless. Has any body else encounter this-seemingly robust Contracts for Services now seen as worthless and unenforceable? Has any succeeded in a case in similar circumstances or am I just getting a quick run around from lawyers for a quick buck and move on?