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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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In May 2013, I purchased 150kg of rare earth metal, Yttrium

Resolved Question:

In May 2013, I purchased 150kg of rare earth metal, Yttrium from China mineral exchange through Thompson and Cooke solicitors Manchester. The cost was 33K plus 3.3K costs. 9 months later a demand comes for 1.2K per year in further fees from an agent quoting appendix 3 of the contract. I contacted T and C who replied that they left it to the agent to do this, but I never had any contract with an agent. Effectively this guarantees these fees every year for doing nothing. I do not even know what appendices 1 and 2 say. Surely these facts must invalidate the original agreement, as knowledge of these costs in conjunction with the revelation that my 150kg is part of a huge piece of metal that cannot be split and needs to combined agreement of multiple owners to sell, would have made this investment a non starter, something that China Mineral (now in liquidation) and solicitor would have been well aware of.
It is not practical to just have a conclusion that the contract with that particular agent is not valid as it would be impractical to go to the storage agent and ask for my piece to be cut and sent at great expense to another storage depot with another agent when the value is apparently greatly reduced for small amounts.

My question is "Can the original contract be declared invalid and funds returned by the solicitor wilfully excluding appendices or even mentioning their existence at the time of signing of contracts". I am aware of at least 5 clients in a similar position and none of them were told of these appendices until 9 months later when annual charges become due.
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.

Alex Watts :

Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

The agreement that you have, which country does it have a jurisdiction please?

Customer:

UK as the issue is against a Manchester based solicitor

Alex Watts :

So the Solicitor did not include the appendix?

Customer:

Correct - nor to any other clients. None of us ever saw it. The justification was "this was left to the trustee once the legal purchase had been completed". Our point is that the costs involved as laid out in these appendices made the deal on viable and removes any motivation for the trustee to set up a trade as he can collect 5% fees ad infinitum and increase them as he wishes. We only found out the name of this trustee after purchase.

Alex Watts :

What did the main contract say about appendix - did they make reference to it?

Customer:

no - nor to any of the other 5 clients I am in contact with. T and C acknowledge that they made no reference to it.

Alex Watts :

Ok - in that case you are NOT bound

Alex Watts :

The principles of contract law are this

Alex Watts :

You are only bound by terms and conditions if they were reasonably made available.

Customer:

I can forward contact and appendices if you wish

Alex Watts :

Therefore if the agreement made reference to appendices or if they were attached you would be bound

Alex Watts :

If they were not mentioned or attached then you are NOT bound

Alex Watts :

If the Solicitors try and get you to pay fees you can refuse and they can try and sue you for breach of contract

Alex Watts :

But you could defend on the basis that the terms were not incorporated into the contract at the time

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

But does that make the contract invalid or does it just mean that we would have the choice to seek another trustee and storage agent and merely pay them money for years instead

Alex Watts :

It does NOT make the contract invalid

Alex Watts :

It only means you are not bound the terms which were NOT included

Customer:

If we don't pay the fees, the company in Rotterdam might dispose of the product.

Alex Watts :

Then you could sue the Solicitors for negligence

Alex Watts :

You should write to the company in Rotterdam and set out the position

Customer:

The terms that were excluded would have caused us all to have had nothing to do with the purchase as they effectively destroyed any investment aspect of this project

Alex Watts :

Yes I understand, but that does not invalidate the contract

Customer:

So if the fees in the appendices had been 20K per year on a £30 investment, nobody would see the solicitor as being negligent for not bringing the relevant appendix to the notice of the client or even informing him of the existence of an appendix

Alex Watts :

Yes

Alex Watts :

All terms must be reasonably brought to the attention of the client

Customer:

Thank you - then clearly my their own admission it was a deliberate decision that they took not to notify the clients of ecen the existence of appendices - clearly this is the critical point here.

Alex Watts :

Yes indeed.

Alex Watts :

I think you have a case for neglience.

Customer:

Thank you - I assume I must go elsewhere to set up a group action.

Alex Watts :

Sadly yes

Alex Watts :

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.


Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.


 


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Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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