We contacted a company, which are British people working from a factory in China called Star Prototype.
They put is in touch with their UK representatives. (Our order was for Star Prototype to manufacture Injection Moulding Tools which would produce plastic moulded casings parts for our wrist watches and also we required some machined steel parts for our wrist watches).
Their 2 UK representatives Pedro Monteiro & Dave Moir, both spoke and communicated by email with me. Then Dave Moir actually visited me at my office to discuss our requirements, confirming that they could do the work in the timescale we required.
The procedure was that Dave Moir was going to China and would oversee the manufacturing of the Injection Moulding Tools and machined steel parts. He would then courier to us a small batch of sample plastic moulded parts that had been produced using the Injection Moulding Tools they had manufactured for us, within 10 Days, to enable us to check and test the plastic parts.
We paid Star Prototype, into their company bank account by bank transfer, 100% the cost of manufacturing the cnc machined watch casing metal parts and also 50% of the invoice for the manufacture of the Injection Moulding Tools.
For your information: The standard way in which Injection Moulding Tool Manufacturers work is that the customer pays 50% up front towards the cost of the Injection Moulding Tool being manufactured. Samples are produced (moulded in plastic) from those Injection Moulding Tools and sent to the customer for approval for fit and finish etc.
If the plastic part samples are not quite right in fit, finish etc. then the customer tells the Injection Moulding Tool manufacturer, who make the little adjustments to the Injection Moulding Tools and then they make another small batch of sample plastic parts (using the now adjusted or corrected Injection Moulding Tools) and send them to the customer for approval.
If the customer is happy that the plastic parts are correct in fit and finish, then the customer Signs Off the project and pays the 50% balance of the invoice.
At this point the Injection Moulding Tools are ready to start to mass produce the plastic moulded parts.
In our case Star Prototype manufactured the Injection Moulding Tools, and sent us the sample plastic parts as requested. Whilst the plastic moulded sample parts were being shipped to us for our approval, Dave Moir had contacted us to say that a few little problems were obvious, for example the camera hole wall was not moulding properly.
When we received the parts, we used the parts to make up some prototypes to test fit of the plastic parts, then I advised Dave Moir of the little amendments were required to the Injection Moulding Tools so that the plastic moulded parts would be to our specifications to be used in the assembly of for our wrist watches.
But, at this point Star Prototype and Dave Moir have demanded payment of the 50% balance and that we Sign Off the project as being good and complete, before they will make any adjustments to the Injection Moulding Tool.
Naturally I have refused to do this, but Dave told us that legally we cannot do that and that they have a clause in their contract (Star Prototype) that if the customer does not Sign Off the project as good within 30 Days of placing the order, then the customer has to pay the 50% balance anyway without the amendments actually being done.
I have checked and astonishingly it does say that. Dave Moir has told us that we cannot have or use the Injection Moulding Tools at all.
Gordon Styles the Director of Star Prototype has told us that it would be impossible for us to sue Star prototype because it is so complicated, expensive and time consuming to do so in China. I said that then we could maybe sue Dave Moir who is based in the UK.
Gordon Styles then said that Dave Moir does not work for Star Prototype and that he is in fact an independent consultant. (although Dave Moir is shown on Star prototype website as being a manager).
I have told both Gordon Styles and Dave Moir that as Dave Moir is an independent consultant that we will sue him directly.
I quoted the following, but not sure if this is correct in UK law:
Therefore the consultant David Moir is to be sued for both breach of contract and tort liability.
David Moir materially failed to perform his obligations under the contract.
Orsto Ltd suffered damages as a result of the consultants breach of obligation.
In actions brought under breach of obligation in the UK and most other jurisdictions, it is irrelevant whether the consultants breach was innocent, negligent, or wilful.
Orsto Ltd need only prove that a material breach of contract occurred and the damages resulted.
Please advise if this can actually be done, as we do not have a legal contract direct with Dave Moir. But we do have maybe 20 + emails backwards and forwards with Dave Moir throughout the whole project.