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Hi. Thank you for your question. My name is ***** ***** I will try to help with this.
What does the contract say?
On the point of notice?
The contract says that a full terms notice must be given.
Were they able to fill her place with another child?
They say that her place is available for the term and she can attend at any time
Thats bad news.
Unfortunately you would seem to be liable I'm afraid.
But I don't know if they have filled it.
The contract says one term's notice.
You did not give one terms notice.
They are under a duty to try to mitigate their loss by trying to find a replacement.
But I was happy with the quality of teaching and pupil behaviour
You might be able to put them to proof over whether they had done that.
The fact that you were unhappy does not mean you can pull out completely unless the contract said satisfaction guaranteed which is not common.
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.
Ok so the fact that I am unhappy does not count
Unless, literally, the school burned down and her place was unavailable or there was just nobody available to teach her.
Not unless it amounts to a specific breach.
Or its so substantial that the contract could not be performed.
You might be able to ask a Court to accept that they hadn't tried hard enough to replace her.
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.
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
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.
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.
Contract isn't about fairness Im afraid. Its about law.
Yes. the duty to mitigate is your only chance.
How would I say that to them
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
Is that about all I can do?
It doesn't really matter whether you say that to them or not.
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
The onus is upon them to sue you for the money.
Is there anything else i can do?
If they do sue you then its a defence to raise.
No point in complaining is there?
whether they will sue or not is another matter. It is a sum worth suing over but often companies don't.
Independent schools do normally keep a waiting list so its surprising they couldn't replace her.
So my defence would be that they would have to prove a genuine loss because the place wasn't filled, is that right
No. If the place wasn't filed there is genuine loss.
The issue is whether they have mitigated their loss.
What does mitigated their loss mean please
Tried to find a replacement.
And it depends on whether or not they found a replacement?
So if they found a replacement I wouldn't not have to pay?
if the didn't find a replacement I would have to pay
Is that right?
Yes but if the court is of the view that they just didn't try then you would not have to pay.
I posted notice 1st Aug and school starts on 9th Sept so they have time
Yes, if it were possible.
In my letter I would ask them to prove that they have tried to find a replacement
Is that how I should approach the school about it
It used to be that public schools had loads of empty places but that was in the days when grammar schools were available.
Now that grammar schools have declined in favour of comprehensive education our public schools are reinvigorated.
And generally they have a waiting list.
I think because it's a specialist threatre school of 60 -70 children they may have places
If they do have empty places then you will struggle to raise this point.
If they have empty places then they will not have a waiting list by definition.
It was easy for my daughter to get in
But it doesn't really matter what the letter says. The issue is what the court finds.
I would run the matter at court though.
So I need to raise the issue with them in a letter don't I
The other alternative is to offer a lesser sum in ful and final settlement.
So what should my next step be
Depends what you want to do.
To simply not pay and ignore them until it goes to court
Should I do anything
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.
If you want to put it to bed then you could offer a lesser sum
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.
If they sue and I represent myself will I incur additional costs
You could in theory but its not easy to do in practice.
You will incur costs but not a lot. Its a small claims court sum.
so costs would be low.
So choose one way or the other
If I go for a final settlement and they refuse what then
Can I still say I don't believe they tried to find a replacement
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
Can I do that
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.
You could try making a without prejudice offer in full and final settlement that will stop them being allowed to refer to it.
But they will be trying througout.
Ok, so it's best to go for no payment and they should have found a replacement
And see what happens in court, if it goes that far?
If you are prepared to risk going to court.
The chances are fairly good that they won't.
But be aware that they could.
The worst is that the court will order me to pay full amount
Yes, plus a very small amount in costs.
Really - what could they do to find a replacement if they don't have a waiting list
The risk of final settlement offer is then I admit liability
and they will probably want full amount.
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.
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.
I think they may be empty spaces but I don't know for sure
Yes, they probably will want the full amount but they might settle for less.
Ok so Can I do both, I'm a bit confused about whether I can or not
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.
What do you think aobut that
Yes, you can. It is better to decide upon one position or the other generally.
But if you want to try to negotiate you can do that.
I would offer 50% and work upwards. You can always go up but you can't come down.
Ok Do you have a view about which way to go
Depends on the company.
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.
Full and final settlement would resolve that.
So there is a motivation to accept.
Last point do I have to give a reason why I'm making an offer and not willing to pay in full
Best not to.
Then it will be up to them to accept or take me to court
Just entitle it full and final settlement and make sure you put without prejudice at the time.
Thank you so much, you have been exceptionally helpful.
I just need to decide which way to play it.
No problem and all the best.
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