Was this their finder's fee?
How did you pay it?
Did you use words bad mouth or if not, what exactly?
Yes finder's fee, I took on a nanny to be part-time but always with a view to be full-time, but when I got a full-time job she didn't turn in and let me down. This, in my opinion, is because she was inexperienced, I asked for experience from the start - but I did accept her as she was.
I paid by cheque.
No bad mouthing, I said 'I am a TV Producer and journalist and if you don't give me a refund (if they couldn't find a replacement) I will go on the mum websites and magazines etc I know and let people know that their agency is no good.'
Afriend of mine was in exactly the situation, but she was the agency. It went tosmall claims court and she lost.
Thereis no problem whatsoever with you, putting on any websites what has actuallyhappened but you have expressed an opinion, that their agency is no good, andif you were to put that on a website, you could possibly face a defamationclaim.
As atelevision producer and journalist you don't need me to tell you that youshould know better. It could be liable or slander depending on how far it got.
To myknowledge, however, no one has ever been prosecuted or sued for threateningdefamation! You can say what you like to the agency and you can badmouth themall you like, provided it is only to the agency and not to a third party. Inorder to bring a defamation claim, what you say has to be said orwritten/published to a third party which it has not been.
Tobe frank, I would not waste time or energy on all the mother that websitesbecause it will not get your money back. All it will give you is morbidsatisfaction.
Iwill give you a little bit more advice, which is if you are putting anything inwriting, write the letter today, read it tomorrow, and post it the day after.Never write or say anything that you would not wish to be read out in court orpublished on the front page of the daily newspaper with your name on it, orshown to your mother or your grandmother or your spouse or partner or children.Remember also that vengeance is best served cold.
So,having given you a lecture and admonished you for what you did in the heat ofthe moment (we have all done it). We shall move swiftly on.
Iwould write to them and tell them that they are in breach of their statutoryduty under the Supply of Goods and Services Act in that the service theyprovided was not of satisfactory quality and was not carried out withreasonable care and skill. I would also tell them that they are in blatantbreach of contract and that unless they let you have your money back within 14days (give them until a particular date, so that there can be no dispute when14 days finishes) you will take them to the small claims court which you can doquite easily here www.moneyclaim.gov.uk
andlet a judge decide.
However,before you do any of that you need to check the terms and conditions that youagreed to, because there will be a provision somewhere ff someone does not stayfor a long period of time. Usually, there is a full refund within the firstmonth and then it is on a sliding scale thereafter. The sliding scale is rarelylonger than six months and is more often than not three months. You need tocheck that absolutely because it is really important.
Can I help further?
Please bear with me today because I will be online andoff-line.Please don't forget to positively rate my answer service (even if it was notwhat you wanted to hear) and I will follow up any further points you raise forfree.If you don't rate it positively, then the site keep your deposit and I get 0for my time. It is imperative that you give my answer a positive rating. Itdoesn't give me "a pat on the head", "good boy" (like ebay), it is mylivelihood!If in ratings you feel that you expected more or it only helped a little,please ask me for further info before rating me negatively otherwise I don'tget paid at all for my time and answer. The thread remains open for us to continue this exchange
OK, heard loud and clear. Good answer.
I don't think they are in breach of their contract under the terms of their Terms and Conditions, they have the 1 month refund policy as you mention, and then after for the subsequent 7 months will only replace for another nanny.
My real query is what happens if the rest of the people they send are of low-quality and experience, and not satisfactory - at that point I would want a refund - as then in my eyes they have not fulfiled their role to provide a nanny, with the current one now gone. Do I have any cause for refund then at the small claims court?
I will not be silly enough to make these statements outloud again, and hear what you say about not bothering with mum websites - it's just annoying that someone else could end up in the same boat and fundamentally I don't think they are doing a good job/providing a good standard of candidate.
I could give them a go at finding a replacement, but it would really only be to try to get my money back. I would be surprised if they actually came up with a good one! Then I am frustrated and out of pocket.
Any more advice?!
Ifthey are not in breach of contract or statutory duty, you will lose if thisgets to court.
Thesecret is to jump on the case immediately anything is unsatisfactory, ratherthan to weather it.
Iknow your concern: they keep sending cr-p, to get past the seven-month period.It is a risk you run. I am afraid. In that case, I would argue that whilst theymay not be in breach of contract, they are in breach of the Supply of Goods andServices Act for the reasons I stated early.
Rememberthat to issue small claims, proceedings will only cost you 100 quid or so, andeven if you lose, you will have the satisfaction that they have had to dealwith it and spend a lot of time on it. Much better than putting a bit of a ranton a website.
Do I have any more advice?
Don't eat yellow snow! J
Thank you, you were excellent. I will breath out lots and go back to them tomorrow with a replacement request later. Thanks for your advice. I appreciate it.
Glad to help.
Ifyou need me again, put my name at the top of the thread and the other expertswill tell me that you are waiting.
PS what kind of journo and TV?
OK, great. Thank you so much. I do observational documentaries, light-hearted stuff usually - following people on a journey or change in their lives etc. I am a Series Producer. I haven't written articles for a while but they were on property.
I have sent an email this morning outlining the facts about the service I have received, and asking them to provide me with suitable replacements as per their T's & C's. I will wait to see what they say next...
One more q if I may? If I did take them to the small claims court and we lost, would we be liable for their costs? I would HATE to have to give them any more cash, so it might not be worth it in that instance...
Thanks again. Suzanne
Soundsfascinating. More interesting than the legal profession. Changing my life? I wasthrown out at school at 16 with no qualifications. I got sacked for my firstjob. I muddled through life and went to law college at aged 51. That was hardwork and life changing. Would I do it again? Not in the current economicmarket. I would probably do something with drama/theatre (I do am dram), andthe Internet. I fear that I have missed the Internet bandwagon.
Afriend of mine is currently doing some stuff for Leftfield Pictures, which willair summer/autumn. I am sworn to secrecy. Nothing to do with me though.
Thejourney thing sounds interesting as well. A friend of mine and I have somethingto do on our bucket list, which is travelling around the world on motorcycles(a la Ewan McGregaor and Charlie Boorman, The Long Way round ) but doing it on20-year-old Honda 90s shopping type motorcycles. "The Wrong Way round", doingthe trip in reverse. We are half planned. Let me know if you want 2 subjects!We could do Australia to Uk to add some spice and make it different. If it's ofno interest I promise not to bad mouth you all over the Internet. Tee hee.
Ifever you want any input on your property articles, don't hesitate to ask.
Tothe instant problem: Read the terms and conditions in detail, word by word. Whatyou are looking for is something which says to the effect of them beingentitled to the costs of enforcing the terms of the agreement. Providing thewords are not in there, if you go to small claims court and lose, all you areresponsible for is your own court costs.
Ican tell you annoyed you. It does give a morbid satisfaction, knowing the legalproceedings are landing on their doormat. Many people threaten issuing legalproceedings as a mere threat and never get round to it. I guarantee that whenthe legal proceedings on their mat, it will not be the high spot of their day!
Would it be this bit? Does this say what you mention above?
20.1 If any provision of the Agreement (or part of any provision) is found by any court orother authority of competent jurisdiction to be invalid, illegal or unenforceable, thatprovision or part-provision shall, to the extent required, be deemed not to form part ofthe Agreement, and the validity and enforceability of the other provisions of theAgreement shall not be affected.
20.2 If a provision of the Agreement (or part of any provision) is found illegal, invalid orunenforceable, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
No,as it says, that is severance.
Thereis a legal doctrine called "the blue pencil test".
Inany part or clause of a document is found to be unenforceable because it isunreasonable the court will not make it reasonable, but will put a line throughit. If anything else is in the same clause and becomes a casualty to the bluepencil, then that is unfortunate. For that reason, each clause of an agreementshould only have one point in it, to prevent any other points being a casualtyof the blue pencil in the event that the clause is unenforceable.
Probablythe best example would be a restrictive covenant in an employment contract sayingthat you couldn't work for a competitive company for two years. It isunenforceable. A three month period would be enforceable. Six-month possibly. 12months. Extremely doubtful.
Soif the employment contract ended up in court and this clause was in dispute, thecourt would not make two years into another reasonable period but would simplystrike it out altogether.
In youragreement, 20.1 and 20.2 try to avoid the blue pencil test. In actual fact, theseverance provision rarely works