Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I ask if you communicated you concerns with regard to the standard of labour provided at the time please?
Yes we did, by email. We paid what was invoiced. There is no mention of penalties in the terms and conditions, just statements.
Thanks. What if anything was agreed by them in reply to your complaints? Was there any mention in your final payment to them of your payment being made in full and final settlement?
No unfortunately not. We had no idea that once the invoices were paid they would then issue further invoices for effectively loss of opportunity because we had not given them 14 days notice. It would seem to me that knowing that we were dissatisfied they should have offered other labour to take there place and made it clear we would have to pay for 14 days labour if not. Had they said it at the time we might as well had the alternative labour.
Thanks. Did they respond a all to your complaints about the labour? Would you be able to give me a very brief summary of the issues you experienced?
Yes they said it was down to a clash of personalities with the site manager, in reality the guys turned up late, did not have hard hats proper footware and the like, and sometimes did not turn up. They referred in their own emails to one of their own staff as a " muppet" when he didn't turn up! They did make the point that they could have provided alternative labour if we had complained at the time rather than finishing the chaps up. We had come to the view they could not deliver competent people so what was the point of having more especially if there were more muppets to follow.
Thanks. Do you have evidence of the above issues if they denied the claims?
Thanks. based upon what you say, this is a commercial contract and therefore terms and conditions are binding unless they can be shown to be contrary to the unfair contract terms act which the above is not.however, the other party is firstly bound by the terms of your agreement to supply satisfactory labour and secondly is required to mitigate its losses in respect of any claims it makes
Thank you, XXXXX XXXXX there must be a clause to say what the impact of a beech is. I.e if you do not give 14 days notice you will be charged 14 days money?
Should we be asking them to prove their losses?
in respect of the claims they are making under the contract, there are the number of points you can make in this respect. Firstly, you can return to the question of the poor Labour that they supplied and as to whether this caused you any loss under the terms of your contract which could potentially form the basis of a claim to offset against their charges
These workmen would at best be on zero hour contracts, it extremely unsightly they suffered a loss in reality. Offsets are not likely we did not complain about the labour at the time.
secondly, there is a question of the agency demonstrating actual loss. Penalties are unlawful at common law and any claims under the terms and conditions must be based upon actual losses that the agency can reasonably demonstrate have been incurred
Sorry to go on but you have not answered my point re the penalty to match the breach. I saw this as a substantive failure in the terms. You can hardly say that there are terms to be met and not say what the consequences of failure to meet these terms are.
Ok I suspect your last answer answers my last question too. Thanks very much.
thirdly, if the agency is seeking to charge a notice period which was previously not discussed on the basis that you terminated the agreement on the basis you understood that this was an agreement to be in full and final settlement, then you can consider advising the agency that on that basis notwithstanding the above, you will require them to supply you with Labour commensurate with the amount they are proposing to charge which Labour you expect to be of satisfactory quality and in addition, you will be looking to make claims in respect of any unsatisfactory Labour previously provided so far as such they because to loss
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