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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 22400
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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I just had a heated conversation with a nanny agency I have

Customer Question

I just had a heated conversation with a nanny agency I have paid £840 for a nanny who has not ended up being up to scratch. I asked to get my money back, they don't do that so said I would only be offered them finding a replacement. I kept asking what if they don't find me a suitable replacement, the M.D wouldn't answer. I then got a little emotional and said that if they didn't give me a refund after that I would badmouth them on parental websites and anywhere I could find, being a TV Producer. The M.D informed me she had recorded the conversation and would be talking to her lawyers about my having blackmailed her. Is this possible? I am a mum of two, and annoyed with the bad people they have sent me - surely I am entitled to my opinion and to tell others of their service?
Submitted: 3 years ago.
Category: Law
Expert:  Stuart J replied 3 years ago.

Was this their finder's fee?

How did you pay it?

Did you use words bad mouth or if not, what exactly?

Customer: replied 3 years ago.

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.'

Expert:  Stuart J replied 3 years ago.








Thank
you.



A
friend of mine was in exactly the situation, but she was the agency. It went to
small claims court and she lost.



There
is no problem whatsoever with you, putting on any websites what has actually
happened but you have expressed an opinion, that their agency is no good, and
if you were to put that on a website, you could possibly face a defamation
claim.



As a
television producer and journalist you don't need me to tell you that you
should know better. It could be liable or slander depending on how far it got.



To my
knowledge, however, no one has ever been prosecuted or sued for threatening
defamation! You can say what you like to the agency and you can badmouth them
all you like, provided it is only to the agency and not to a third party. In
order to bring a defamation claim, what you say has to be said or
written/published to a third party which it has not been.



To
be frank, I would not waste time or energy on all the mother that websites
because it will not get your money back. All it will give you is morbid
satisfaction.



I
will give you a little bit more advice, which is if you are putting anything in
writing, 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 or
published on the front page of the daily newspaper with your name on it, or
shown 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 of
the moment (we have all done it). We shall move swiftly on.



I
would write to them and tell them that they are in breach of their statutory
duty under the Supply of Goods and Services Act in that the service they
provided was not of satisfactory quality and was not carried out with
reasonable care and skill. I would also tell them that they are in blatant
breach of contract and that unless they let you have your money back within 14
days (give them until a particular date, so that there can be no dispute when
14 days finishes) you will take them to the small claims court which you can do
quite easily here www.moneyclaim.gov.uk



and
let a judge decide.



However,
before you do any of that you need to check the terms and conditions that you
agreed to, because there will be a provision somewhere ff someone does not stay
for a long period of time. Usually, there is a full refund within the first
month and then it is on a sliding scale thereafter. The sliding scale is rarely
longer than six months and is more often than not three months. You need to
check that absolutely because it is really important.



Can I help further?



Please bear with me today because I will be online and
off-line.

Please don't forget to positively rate my answer service (even if it was not
what you wanted to hear) and I will follow up any further points you raise for
free.

If you don't rate it positively, then the site keep your deposit and I get 0
for my time. It is imperative that you give my answer a positive rating. It
doesn't give me "a pat on the head", "good boy" (like ebay), it is my
livelihood!

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't
get paid at all for my time and answer.

The thread remains open for us to continue this exchange






Customer: replied 3 years ago.

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?!

Expert:  Stuart J replied 3 years ago.



Can I help further?



Please bear with me today because I will be online and
off-line.

Please don't forget to positively rate my answer service (even if it was not
what you wanted to hear) and I will follow up any further points you raise for
free.

If you don't rate it positively, then the site keep your deposit and I get 0
for my time. It is imperative that you give my answer a positive rating. It
doesn't give me "a pat on the head", "good boy" (like ebay), it is my
livelihood!

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't
get paid at all for my time and answer.

The thread remains open for us to continue this exchange



If
they are not in breach of contract or statutory duty, you will lose if this
gets to court.



The
secret is to jump on the case immediately anything is unsatisfactory, rather
than to weather it.



I
know 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 they
may not be in breach of contract, they are in breach of the Supply of Goods and
Services Act for the reasons I stated early.



Remember
that to issue small claims, proceedings will only cost you 100 quid or so, and
even if you lose, you will have the satisfaction that they have had to deal
with it and spend a lot of time on it. Much better than putting a bit of a rant
on a website.



Do I have any more advice?

Mmmm.... yes...

Don't eat yellow snow! J



More?



Stuart J, Solicitor
Category: Law
Satisfied Customers: 22400
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street Practice
Stuart J and other Law Specialists are ready to help you
Customer: replied 3 years ago.

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.

Expert:  Stuart J replied 3 years ago.

Glad to help.





If
you need me again, put my name at the top of the thread and the other experts
will tell me that you are waiting.

Kind
regards


PS what kind of journo and TV?


Customer: replied 3 years ago.

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

Expert:  Stuart J replied 3 years ago.




Sounds
fascinating. More interesting than the legal profession. Changing my life? I was
thrown out at school at 16 with no qualifications. I got sacked for my first
job. I muddled through life and went to law college at aged 51. That was hard
work and life changing. Would I do it again? Not in the current economic
market. I would probably do something with drama/theatre (I do am dram), and
the Internet. I fear that I have missed the Internet bandwagon.

A
friend of mine is currently doing some stuff for Leftfield Pictures, which will
air summer/autumn. I am sworn to secrecy. Nothing to do with me though.



The
journey thing sounds interesting as well. A friend of mine and I have something
to 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 on
20-year-old Honda 90s shopping type motorcycles. "The Wrong Way round", doing
the 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 of
no interest I promise not to bad mouth you all over the Internet. Tee hee.



If
ever you want any input on your property articles, don't hesitate to ask.



Anyway,
I digress.



To
the instant problem: Read the terms and conditions in detail, word by word. What
you are looking for is something which says to the effect of them being
entitled to the costs of enforcing the terms of the agreement. Providing the
words are not in there, if you go to small claims court and lose, all you are
responsible for is your own court costs.



I
can tell you annoyed you. It does give a morbid satisfaction, knowing the legal
proceedings are landing on their doormat. Many people threaten issuing legal
proceedings as a mere threat and never get round to it. I guarantee that when
the legal proceedings on their mat, it will not be the high spot of their day!



Kind
regards



Customer: replied 3 years ago.

Would it be this bit? Does this say what you mention above?


 


Severance



20.1 If any provision of the Agreement (or part of any provision) is found by any court or
other authority of competent jurisdiction to be invalid, illegal or unenforceable, that
provision or part-provision shall, to the extent required, be deemed not to form part of
the Agreement, and the validity and enforceability of the other provisions of the
Agreement shall not be affected.


 


20.2 If a provision of the Agreement (or part of any provision) is found illegal, invalid or
unenforceable, the provision shall apply with the minimum modification necessary to
make it legal, valid and enforceable.

Expert:  Stuart J replied 3 years ago.




No,
as it says, that is severance.

There
is a legal doctrine called "the blue pencil test".



In
any part or clause of a document is found to be unenforceable because it is
unreasonable the court will not make it reasonable, but will put a line through
it. If anything else is in the same clause and becomes a casualty to the blue
pencil, then that is unfortunate. For that reason, each clause of an agreement
should only have one point in it, to prevent any other points being a casualty
of the blue pencil in the event that the clause is unenforceable.



Probably
the best example would be a restrictive covenant in an employment contract saying
that you couldn't work for a competitive company for two years. It is
unenforceable. A three month period would be enforceable. Six-month possibly. 12
months. Extremely doubtful.



So
if the employment contract ended up in court and this clause was in dispute, the
court would not make two years into another reasonable period but would simply
strike it out altogether.



In your
agreement, 20.1 and 20.2 try to avoid the blue pencil test. In actual fact, the
severance provision rarely works



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