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F E Smith
F E Smith, Solicitor
Category: Bankruptcy Law
Satisfied Customers: 9031
Experience:  30 years in general practice.
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For FES Only: This is question to the set-aside we discussed

Customer Question

For FES Only:This is the follow up question to the set-aside we discussed on Friday. It relates to a breach of contract question - is this an area you can assist with at all? In particular I am looking for clarification of a point raised by another lawyer on here and a bit more detail with which to approach mediation.ThanksChris
Submitted: 8 months ago.
Category: Bankruptcy Law
Expert:  F E Smith replied 8 months ago.

Hi. Can you please make sure that you rate my previous replies because I haven’t been paid on any of them yet.

Let me know what you want to know about this one, and then I will deal with it for you.

It would help if I knew what the point was raised by the other expert.

Customer: replied 8 months ago.
HiI have rated you 5* for both previous questions - I'm not sure why you have not been paid or what more I can do from this end to help you get paid, but if I can please just let me know what more I can do.Cheers, Chris.
Expert:  F E Smith replied 8 months ago.

Don’t worry about that. Sorted now. Thank you.

If you let me know what the current question is, I will deal with it now for you. Kind regards

Customer: replied 8 months ago.
Hi - great that you got it sorted :-)This matter is to do with breach of contract - in particular failure by the company to which I was subcontracting to give me "one month's notice" to terminate the contract.The problem arises because there wasn't a definite contracted volume of work - it was however consistent (at varying levels) for a period of approximately two and a half years.I have claimed from the company for money in lieu of notice, arguing that the contractual termination clause (incidentally of the contract that they themselves drew up) should come into force because of the consistency of work over preceding years.A previous solicitor on here advised me that I was in the right doing so and the quantum should be calculated based on an average weekly invoice value of the 12-weeks immediately preceding termination. He said there was no hard and fast rule but courts tended to follow Employment Tribunal rules when calculating.Initial question is do you agree with the previous solicitor?And, presuming so, is there any statute or case law surrounding this issue that I can use as part of my case?I am expecting the matter to go to mediation, and I would be in a much stronger position with some actual law behind me rather than just a theory!Look forward to hearing from you,Thanks and best regardsChris
Expert:  F E Smith replied 8 months ago.

Thank you. I think what the previous solicitor is saying is that the notice in the original contract applies because in effect the contract has simply been rolling over consistently over the last 2.5 years and hence, you are still entitled to the same notice.

Whether the previous 12 weeks preceding termination would be a good measure or not would depend on the nature of the work and whether it was seasonal. The previous 12 weeks may not be representative of the average situation. Subject to that, the previous 12 weeks would be quite reasonable. If the work is seasonal, then it would be the previous 12 weeks of the same period last year.

I don’t know whether the work that you were doing was just labour you may not necessarily be awarded full amount of the notice because you haven’t actually done the work. You would claim the full amount and it would be for the defendant to submit to the court that you not entitled to the full invoice value because you haven’t had the burden of doing the work. However, that is for the other side to raise with the judge.

There are actually several issues here which makes the case law matter more involved. Whether the previous notice period does apply in a rolling over contract. Is it rolling over contract or a new contract? Whether you are employed or self-employed in reality regardless of the terms stated in any contract. Whether the terms of the original contract excluded rolling over or whether it genuinely was for a fixed term. What is the value of it?

Hence, getting the maximum amount of caselaw out of this is going to take several hours. A barrister’s opinion is probably going to cost you in the region of £600 or a little more plus VAT and that would give you the caselaw that you are looking for.However, you would not recover those costs.

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