Ask an European Law Question, Get an Answer ASAP!
Hello my name is ***** ***** I will help you with your question today. I am reviewing it, please give me a moment.
What does the contract say about termination?Is it a UK Company?
Sadly I can't help.
The contract says: Luxembourg Courts. So as a UK lawyer I can't advise, I am sorry.I will refer it to the Moderator.
Hello, I am just enquiring to see if you intended to cancel the contract for the move or just postpone? Thanks, Peter
Thanks for the clarification. I was checking as you did have the right to postpone for up to 12 months. The T/C does state clearly about the 3 days notice for a 50% refund, my feeling is that you are going to be bound by this. It is a UK company but like my colleague, I have concerns about the reference to Luxembourg courts, which I am also not an expert in!
I'll opt out and see if anyone else can assist. Have the company indicated that they will definitely only refund 50% of the charges though?
Hi, I have reviewed your invoice and the terms and conditions of your contract. A signature of booking confirmation is not always necessary, the specific circumstances of your case determines whether a valid contract was entered into and the terms and conditions determine what will happen upon cancellation and the Courts with jurisdiction in the case of dispute. I note that you are not in dispute with the fact that your cancellation was within the 3 days mentioned in Clause 6.3 of the agreement. The transaction appears to have been on line and as such there is no requirement for a signature. Your confirmation of the order and the dates for collection would suffice for purpose of establishing that there was indeed intention to contract with the company. Clause 6.3 is very specific on the penalty for cancelling the contract within the 3 days and as such the company would be within their rights regrettably in this situation to use their discretion to not refund up to 50%.
Parties to a contract are free to agree to jurisdiction of specific Courts to deal with the matter in the event of a dispute. The company is registered as a limited company in the United Kingdom and as they would be the defendant the general rule under the Civil Procedure Rules would be that you would pursue them where they have their registered office or where they have an office where they are trading from and that would be within the UK. However, parties can vary this by agreeing to an alternative jurisdiction and in your case by agreeing to the terms and conditions of the contract you have agreed to the provision in Clause 17 that nominates Courts in Luxembourg. So to issue proceedings you would have agreed to commence proceedings in Luxembourg. Note however that the agreement is for non-exclusive jurisdiction as opposed to exclusive jurisdiction. The latter would mean that you can only pursue the matter in a Court in Luxenbourg. However Clause 17 allows for when you would be able to pursue the matter outside Luxembourg Courts and that is when the company agrees to an alternative jurisdiction in writing before the date when their services commence. So you could seek their agreement to allow any action to be taken within the UK if they remain adamant that they will not exercise their discretion to allow you to cancel at no cancellation fee or at a fee less than the 50%. The terms and conditions only allow for this where they agree and as such it would be your hope that you can get to an amicable agreement to charge a lot less than they have indicated or for them to allow you to pursue within the UK. Depending on the specific reasons for the cancellation they may not unreasonably withhold their agreement.
So in a nut shell from the limited information which you have provided I do not think you can argue that there was no contract. Your notice of termination was within the 3 days of date of collection and as such they would be entitled to exercise their discretion to not refund up to 50% of the total fee. The nominated jurisdiction which is in the terms and conditions is Luxembourg however this is stated as non-exclusive and an alternative jurisdiction is possible with prior agreement from the company. You would therefore be asking for the UK as the Civil Procedure Rules would allow you to sue them within the UK as the jurisdiction where they are registered as a limited company.
I hope this has clarified the position for you. If you are satisfied with the response please do not forget to rate my service. Also please do not hesitate to send any follow on question should you need further clarification. Thank you.
Hi, I would be grateful for your feedback/rating if you have found any of the guidance useful. Thank you.