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Ash
Ash, Solicitor
Category: Law
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Experience:  Solicitor with 5+ years experience
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Can I sue a professional consultant

Resolved Question:

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.

Thank You

Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.
Alex Watts : Hello my name is ***** ***** I will help you with this
Alex Watts : Is Star Prototype and David Moir both based in the uk please.
Alex Watts : Who is the company you paid and are they in the uk?
Customer:

Hello Alex

Customer:

Star Prototype are a Chinese Company run by an English Director/Owner, has has moved out to China approx 8 years ago.

Customer:

Star Prototype have 2 people based in the UK, 1 of those is David Moir.

Customer:

He is on their website as the Manager for North UK.

Customer:

I Paid the money to Star Prototype Account in Hong Kong.

Customer:

David Moir has had a few conversations with me by email, on the phone and here at my office in person.

Customer:

We talked about the work required and he went to China to oversee projects ordered from other companies in the UK and of course also the project from this company.

Customer:

David Moir lives and is based here in the UK.

Customer:

I was under the impression that he was actually an employee of Star Prototype. But as soon as we hit this problem with supply, the Director of Star Prototypes, Gordon Styles said in emails that David Moir does not actually work for Star Prototype and is just a consultant for Star Prototype.

Customer:

This is why I thought, well if he is a consultant and has been clearly consulting us then maybe we could sue him.

Customer:

As a consultant witha verbal contract as no written contract exists bewteen my company and David Moir. We have a contract for the project with Star Prototype.

Alex Watts : Have you paid anyone in the uk please?
Customer:

The payment was made to Star Prototype into their Hong Kong bank account. To be honest we thought that Star Prototype was a British company simply with a factory in China. As we dealt with David Moir all of the time and as you can see when you click on the contact details for the UK on the Star Prototype website it shows you David Moir as the manager for North UK. Please look at this link to that page on their website: http://www.star-prototype.com/contact/united-kingdom/

Customer:

We have paid E3 Design in Jesmond UK for CAD services for this specific project and it was that company that advised us to use Star Prototype and put us in touch with David Moir also they sent CAD designs direct to Star Prototype and David Moir for our project.

Customer:

So payment for machining and tooling was paid to Star Prototype account in Hong Kong. Payment for CAD design work on the project was paid into the business account of E3 in Jesmond UK. They were advising us and guiding us through the process of manufacturing the tooling for the parts.

Customer:

Hello

Customer:

Where you trying to chat?

Customer:

I will wait for your reply. I realise that you will be busy.

Customer:

Thank You.

Alex Watts :

Did Mr Moir ever hold himself out to be an employee?

Alex Watts :

How did you instruct him?

Customer:

I was under the impression that David Moir was an employee, in all of his emails to me he refers to we, us and our when referring to Star Prototypes, in every single email.

Customer:

He contacted me after Peter at E3 design asked him to, with a view to quoting for tooling work to be done. I then discussed the project with him, by email, on the telephone and in person at my office. Every step of the way he referred to Star Prototypes as we, us and our. I presumed that he either was either an employee or an independent engineer under contract to Star Prototype. His working agreement with Star prototype and how he was remunerated was never any concern of mine. At least at the time it was not. I instructed him to carry out overseeing the project, verbally and by email. I also signed a direct agreement with Star Prototype for the works to be done. This agreement was given to me by him via email to sign.

Alex Watts :

But was he just an agent?

Customer:

I do not want to appear rude here, but I think that you are asking questions rather than providing answers. I have given you the facts, there was no written agreement between my company and David Moir, hence I do not know whether in law he would be classed as a Consultant or not, based on how he contacted us, worked with us and advised us.

Alex Watts :

Can you sue.

Alex Watts :

Yes you can

Alex Watts :

But you can only sue the Company as that is who you pad

Alex Watts :

* paid *

Alex Watts :

You can not sue David Moir - you had no contract with his and he was not paid

Alex Watts :

You can only sue the Company

Alex Watts :

But the sad news is you can't sue in the UK as the UK does have any agreement with China to enforce Judgments.

Alex Watts :

China is not covered by:

Alex Watts :

The Administration of Justice Act 1920 & the Foreign Judgments (Reciprocal Enforcement) Act 1933

Alex Watts :

The Brussels Regulation

Alex Watts :

Lugano Convention

Alex Watts :

Therefore sadly whilst you can sue, it would need to be in China

Alex Watts :

That is because the Company you based is there and not the Uk

Alex Watts :

Any Judgment in the UK simply could not be enforced in China

Customer:

I understand. Just one last question about this, as I paid money to E3 Designs in the UK, who advised me to use Star Prototype, could I sue them?

Customer:

AS they have been paid for a technical service which included advising me and being involved with me contracting with Star Prototype and actually sent directly to Star Prototype technical CAD drawings for their project to go ahead.

Alex Watts :

But that I think was a separate contract, they only recommended Star to you?

Customer:

Yes that is correct.

Alex Watts :

Sadly then no

Alex Watts :

They are individual contracts, you can't sue someone for a duff recommendation

Customer:

To be honest I am not looking to run around suing people, its just very unfair waht has happened. Maybe this is just a lesson learned. Thank you for your time, you have been very helpful.

Alex Watts :

Indeed I agree its unfair.

Alex Watts :

But I had to ask the various questions to understand and fully explore the issue

Alex Watts :

In future any agreement you have must say its governed by UK law to allow you to sue here

Customer:

I know, maybe I cam across as rude. Apologise.

Alex Watts :

I am sorry that its not the answer you want and certainly not the one I want to give you, but I have a duty to be honest

Customer:

Ok. I will do that. That is good advise.

Alex Watts :

Is there anything else I can help with today?

Alex Watts :

Thank you.

Customer:

That is it thank you very much.

Alex Watts :

Please do remember to rate before you go - the button should be at the bottom of the screen

Customer:

Good bye and have a nice day.

Alex Watts :

If you do need more help please click reply

Alex Watts :

And you.

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