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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71031
Experience:  Over 5 years in practice
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We employed someone (Malcolm) through a recommendation

Customer Question

Hello -
We employed someone (Malcolm) through a recommendation to do some drainage work in a field we have recently bought. He looked at the job, and gave us a vague verbal estimate of around £3000. He said he could not say exactly as he did not know exactly what he would find when he started digging, and could not say exactly how much materials he would use. This seemed reasonable, so we agreed for him to start work.
He subcontracted the job to a large firm (Whitelocks) without telling/discussing it with us. We thought that the firm he used was said to be expensive, but we assumed that Malcolm had an arrangement with them regarding his estimate. They did a good job, and we were pleased with the result. BUT - when we got the bill, direct from the sub-contracted firm, it was for £9,300!
I rang Malcolm, who sounded quite shocked, and said he thought there must be a mistake. He said he would talk to Whitelocks about the bill. Some days later I had a call from the owner of Whitelocks, asking me what the problem was. I explained to him, and he said he would ring Malcolm as his contract was with Malcolm. The next day Malcom rang me, said that after talking to Whitelocks he now saw that the bill was correct. He said that he had told me that the estimate he gave was not including materials. That is not true - we discussed it at some length, and we agreed who was to buy what. He suggested that I ring Whitelocks and ask for a discount.
I see that is unfair for Whitelocks not to be paid, but it is also unfair for us to pay 3 times what we were expecting. Can you tell me where we stand legally in this matter, please?
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
I'm not sure if you are asking whether you are liable to pay.
If you are then it depends upon whether or not your contract was with him or with them. If it was with him and he subcontracted then his quote should be accurate to up to 15% unless he was asked to do other work or it was made clear that materials were excluded.
His position seems to be that he didn't quote accurately which is his problem rather than yours.
If you have an entirely separate contract with this firm then you are liable to pay their fees unless you can argue that they are wildly inflating the value of the job.
Which way a court would find depends. You seem to be saying that you were of the view that he was subcontracting but then on the other hand you receive the bill directly and he does seem to have said that he couldn't say what the cost of materials would be which would suggest that was additional.
Equally they seem to accept their contract is with him rather than with you which is helpful.
This may well come down to a court taking the view that you are liable for the value of the job according to market rates. District judges do have a reputation for doing anything that they think is fair whether it is lawful or not. It might be worth investigating the rough average price.
Can I clarify anything for you?
Customer: replied 2 years ago.
Malcolm, the original man, said that the cost of materials would vary depending on what he found when he started digging. I can't remember how much he suggested it would be by, but think it was likely to be less than £200. He said it might be more, or it might be less. If he had said that he cost of materials would be extra, we would have queried that at the time. The job was definitely sub contracted to Whitelocks.
If the estimate had been for over £9000 we would not have had the job done.
What do you suggest is our next step?
Expert:  Jo C. replied 2 years ago.
Investigate the average price so that you know where you stand.
This is a sum over which they could Sue so you need to decide whether you are prepared to go to court. If so just offer the agreed price in full and final settlement. He won't be happy but it is an offer you need to make.
If he sues defend on the basis that was the agreed price.
Customer: replied 2 years ago.
Who am I to offer the money to? Malcolm or the sub-contracted firm who sent me the bill?
Expert:  Jo C. replied 2 years ago.
If you say your contract is with him then make the offer to him. Otherwise it causes lots of contractual issues.
Customer: replied 2 years ago.
Hello again -
We have decided that we are willing to pay for the cost of materials on top of the estimate - I have drafted a letter to send to Malcolm. Could you tell me if a polished up version of this would be suitable, please?-------------------------------
We had an estimate from you of around £3,000. There was no mention of sub-contracting the job out to Whitelocks, and of the fact that they would charge considerably for various vehicles. The final invoice from Whitelocks is £9,351.42, which is 3 times the estimate.
You said on the phone after discussing the bill with ***** *****lock that we were expected to buy the materials ourselves, and that they were not included in the estimate. We are sure that that was not said at the time; if that had been the case, we would certainly have enquired about the likely cost of the materials.It is unfair that Whitelocks should be out of pocket. They have done a very good job, and were acting in good faith. I understand from ***** *****lock that you did not discuss the price at all when you arranged for them to do the job, despite having discussed our budget with us during our original conversation.It is unreasonable that we should be asked to pay a bill so far above the estimate. If the estimate had been that high, we would not have had the job done. We would certainly have asked other businesses for quotes, and adapted our requirements.It seems likely that you severly underestimated the cost of the job. We have a legal right to pay you the amount of the estimate. We have decided to offer you the estimate plus the cost of materials, which brings the total to £5,311.80We feel that is is a generous payment, and we enclose a cheque in full and final payment.
Expert:  Jo C. replied 2 years ago.

You need to head it with the words without prejudice. Also, you need to mark the cheque without prejudice and take photographs of both sides.