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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69783
Experience:  Over 5 years in practice
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Hi I pulled my daughter out of an indpendent school and gave

Resolved Question:

Hi I pulled my daughter out of an indpendent school and gave notice 6 weeks before term. the school want the full terms fees of £4,300 but I was not happy with the school that they were not meeting my child's needs. Do I have to pay?
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Jo C. :

Hi. Thank you for your question. My name is ***** ***** I will try to help with this.

Jo C. :

What does the contract say?

Jo C. :

On the point of notice?

Customer:

The contract says that a full terms notice must be given.

Jo C. :

Were they able to fill her place with another child?

Customer:

They say that her place is available for the term and she can attend at any time

Jo C. :

Thats bad news.

Jo C. :

Unfortunately you would seem to be liable I'm afraid.

Customer:

But I don't know if they have filled it.

Jo C. :

The contract says one term's notice.

Customer:

Yes

Jo C. :

You did not give one terms notice.

Jo C. :

They are under a duty to try to mitigate their loss by trying to find a replacement.

Customer:

But I was happy with the quality of teaching and pupil behaviour

Jo C. :

You might be able to put them to proof over whether they had done that.

Jo C. :

The fact that you were unhappy does not mean you can pull out completely unless the contract said satisfaction guaranteed which is not common.

Jo C. :

If it was so poor that it amounted to a specific breach then you might have a claim for your money back but its not likely to be so poor as to amount to a repudiatory breach.

Customer:

Ok so the fact that I am unhappy does not count

Jo C. :

Unless, literally, the school burned down and her place was unavailable or there was just nobody available to teach her.

Jo C. :

No.

Jo C. :

Not unless it amounts to a specific breach.

Jo C. :

Or its so substantial that the contract could not be performed.

Jo C. :

You might be able to ask a Court to accept that they hadn't tried hard enough to replace her.

Jo C. :

The trouble with school terms is that a school will often argue that they cannot replace a pupil mid term as everybody is elsewhere for that term.

Customer:

the school wasn't right for her, and I paid for one year and it seems unfair that I have to pay another £4,000 when she won't be there

Jo C. :

Although since you were at the beginning of the term that isn't so significant and it surprising that they don't keep a wasting list.

Customer:

So my only route is as you said They are under a duty to try to mitigate their loss by trying to find a replacement.

Jo C. :

Contract isn't about fairness Im afraid. Its about law.

Jo C. :

Yes. the duty to mitigate is your only chance.

Customer:

How would I say that to them

Customer:

Would I say legally They are under a duty to try to mitigate their loss by trying to find a replacement, and can they give me details of how many children they have for her year and how many spaces do they have

Customer:

Is that about all I can do?

Jo C. :

Yes.

Jo C. :

It doesn't really matter whether you say that to them or not.

Customer:

It's a small school with 15 pupils in my daughters year and she said last year it was full, so I will try that, thank you

Jo C. :

The onus is upon them to sue you for the money.

Customer:

Is there anything else i can do?

Jo C. :

If they do sue you then its a defence to raise.

Jo C. :

at court.

Customer:

No point in complaining is there?

Jo C. :

whether they will sue or not is another matter. It is a sum worth suing over but often companies don't.

Customer:

It's £4,300

Jo C. :

Independent schools do normally keep a waiting list so its surprising they couldn't replace her.

Customer:

So my defence would be that they would have to prove a genuine loss because the place wasn't filled, is that right

Jo C. :

No. If the place wasn't filed there is genuine loss.

Jo C. :

The issue is whether they have mitigated their loss.

Customer:

What does mitigated their loss mean please

Jo C. :

Tried to find a replacement.

Customer:

And it depends on whether or not they found a replacement?

Customer:

So if they found a replacement I wouldn't not have to pay?

Customer:

if the didn't find a replacement I would have to pay

Customer:

Is that right?

Jo C. :

Yes but if the court is of the view that they just didn't try then you would not have to pay.

Customer:

Wow

Customer:

I posted notice 1st Aug and school starts on 9th Sept so they have time

Jo C. :

Yes, if it were possible.

Jo C. :

It depends.

Customer:

In my letter I would ask them to prove that they have tried to find a replacement

Customer:

Is that how I should approach the school about it

Jo C. :

It used to be that public schools had loads of empty places but that was in the days when grammar schools were available.

Jo C. :

Now that grammar schools have declined in favour of comprehensive education our public schools are reinvigorated.

Jo C. :

And generally they have a waiting list.

Customer:

I think because it's a specialist threatre school of 60 -70 children they may have places

Jo C. :

If they do have empty places then you will struggle to raise this point.

Jo C. :

If they have empty places then they will not have a waiting list by definition.

Customer:

It was easy for my daughter to get in

Jo C. :

But it doesn't really matter what the letter says. The issue is what the court finds.

Jo C. :

I would run the matter at court though.

Customer:

So I need to raise the issue with them in a letter don't I

Jo C. :

The other alternative is to offer a lesser sum in ful and final settlement.

Customer:

So what should my next step be

Jo C. :

Depends what you want to do.

Customer:

To simply not pay and ignore them until it goes to court

Customer:

Should I do anything

Jo C. :

If you are prepared to contest this at court then just write to them setting down that you believe they havent mitigate their losses by seeking a replacement and to sue if they disagree.

Jo C. :

If you want to put it to bed then you could offer a lesser sum

Customer:

So could I do both, say offer them £800 and also say that I believe they havent mitigate their losses by seeking a replacement and to sue if they disagree.

Customer:

If they sue and I represent myself will I incur additional costs

Jo C. :

You could in theory but its not easy to do in practice.

Jo C. :

You will incur costs but not a lot. Its a small claims court sum.

Jo C. :

so costs would be low.

Customer:

So choose one way or the other

Customer:

If I go for a final settlement and they refuse what then

Customer:

Can I still say I don't believe they tried to find a replacement

Customer:

I think I want to say that they did not try to find a replacement, but I am will to give them a final settlement

Customer:

Can I do that

Jo C. :

Yes, but they will try introducing that in court as an admission of liability. They shouldnt' do that but in the small claims court its hard to control claimants.

Jo C. :

You could try making a without prejudice offer in full and final settlement that will stop them being allowed to refer to it.

Jo C. :

But they will be trying througout.

Jo C. :

throughout.

Customer:

Ok, so it's best to go for no payment and they should have found a replacement

Customer:

And see what happens in court, if it goes that far?

Jo C. :

If you are prepared to risk going to court.

Jo C. :

The chances are fairly good that they won't.

Jo C. :

But be aware that they could.

Customer:

The worst is that the court will order me to pay full amount

Jo C. :

Yes, plus a very small amount in costs.

Customer:

Really - what could they do to find a replacement if they don't have a waiting list

Customer:

The risk of final settlement offer is then I admit liability

Customer:

and they will probably want full amount.

Jo C. :

If there isn't a waiting list then you might have difficulties. You dont know whether there is or not but the fact there are empty spaces gives rise to an inference.

Jo C. :

If you make a without prejudice offer then they shouldn't be able to rely on it and even if they try the judge should stop them.

Customer:

I think they may be empty spaces but I don't know for sure

Jo C. :

Yes, they probably will want the full amount but they might settle for less.

Customer:

Ok so Can I do both, I'm a bit confused about whether I can or not

Customer:

I think I should write a letter say they didn't try to find a replacement ANd then at a later date may a without prejudice offer.

Customer:

What do you think aobut that

Jo C. :

Yes, you can. It is better to decide upon one position or the other generally.

Jo C. :

But if you want to try to negotiate you can do that.

Jo C. :

I would offer 50% and work upwards. You can always go up but you can't come down.

Customer:

Ok Do you have a view about which way to go

Jo C. :

Depends on the company.

Jo C. :

The advantage of full and final is that they would get the money without all the manpower costs of going to court and also its one thing to get judgment and another thing to get the money.

Jo C. :

Full and final settlement would resolve that.

Jo C. :

So there is a motivation to accept.

Customer:

Last point do I have to give a reason why I'm making an offer and not willing to pay in full

Jo C. :

No.

Jo C. :

Best not to.

Customer:

Then it will be up to them to accept or take me to court

Jo C. :

Just entitle it full and final settlement and make sure you put without prejudice at the time.

Jo C. :

yes.

Customer:

Thank you so much, you have been exceptionally helpful.

Customer:

I just need to decide which way to play it.

Jo C. :

No problem and all the best.



Remember that I am always available to help with your questions. Even if I am in Court I will usually pick up a question within 12 hours. For future information, please start your question with ‘For Jo C’.

Customer:

Thank you

Jo C. :

No problem.

Jo C., Barrister
Category: Law
Satisfied Customers: 69783
Experience: Over 5 years in practice
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