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Jenny, Solicitor
Category: Law
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Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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I am currently in dispute with a digital agency in Portsmouth

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I am currently in dispute with a digital agency in Portsmouth who I entered into agreement with in 10/14 to host my website on a dedicated server & build me a fully coded Magento Website from scratch. I asked the company owner, who was my main contact throughout, for hosting terms etc but he preferred he wanted to "keep things simple" so there were no standard terms forming part of the Agreement between us either as regards ***** ***** and site design services, or as regards ***** ***** Agreement between us was the result of terms agreed in correspondence etc. We had a detailed project brief & very specific required services which were agreed by the agency owner as well as other services such as EBAY integration which were promised by them & not delivered.
The site build overran timescales laid out by the company by 2 months (despite time being of the essence & the site being live for christmas and valentines as key sales times being part of implied terms between us) They then asked for more money to get the site finished as "goodwill" in December which we paid (despite being financially difficult as the site was not working) as we desperately needed the site finished as we were losing revenue. The site went live in 2/15. Numerous services promised were not provided, or were non functional, there were detailed issues with lack of functionality, the inability to conduct secure transactions which are key to the operation of an ecommerce site, & frequent problems with crashes, slow site speed & downtime/outage. We discovered we weren't on a dedicated server but a development server. For the next few months the site lost traffic & revenue due to issues with the site and we were constantly in touch with the agency owner. By 8/15 we requested a phone call with the business owner to seek some remedy. This didn't provide positive outcome.
In 9/15, to seek to mitigate our losses, we moved the site to a new hosting provider. When the new hosts tried to move the site they discovered that it was riddled with malicious software & coding & we had to pay for a complete audit/deep clean of the site to remove all the malicious coding & software. In addition, the site had to be upgraded and was non functional for the rest of the month. So basically the site we had been provided with was neither functional nor fit for its purpose. We repeatedly emailed the agency owner & support team, but no offer to remedy the breaches was made. A key requirement in engaging was new coding for the website. They were aware of difficulties we had prior regarding non-standard Magento coding. The coding they provided, including extensions which formed part of our Agreement, was unstable & had to be removed by our new hosts in order to make the site stable so was not fit for service. In addition the server they had used was not kept "clean" & so had infected our site with malicious software.
In November 2015 (following repeated emails to the agency owner who informed us he would charge us by the hour at a rate double our usual rate to fix the problems he & his team had created) we discovered the agency was using our business as an example of his work on his portfolio of business webpage without permission & had fabricated a testimonial from us saying how pleased we were with their work. We sent a Without Prejudice letter concerning the agreement & dispute which had arisen including a detailed layout of the services promised by the agency and not delivered or delivered with improper functionality, a timeline of the issues with the site & email correspondence, & appendices showing emails wHere services were agreed or promised, and where lack of functionality or service outage had been raised. We also sent an open letter with an undertaking to be signed by the agency in relation to the use of our site (including our registered trademark) without permission & the fabricated testimonial with a deadline of 7 December 2015. We sent this via email and by recorded post to the offices. On the 7/12 we received a brief email response from the agency owner covering off a couple of points without actually responding to them but not signing the letter. in Feb 2016 we sent further correspondence chasing the issues not addressed and outlying that by reason of the breaches of contract outlined in first letter and this letter, we had suffered loss & damage & in the circumstances, they were liable to us for damages for breach of contract & in order to try to resolve the dispute between us we would be prepared to accept a payment of £7386.00 in settlement of our claim, being the total paid by us to you under your invoices. The agency owner contacted us after deadline saying he needed more time as had been out of the country and refusing to sign the letter. We extended the deadline to 15.4 to try and achieve resolution. We have no further correspondence so we need to go to small claims next - can you advise on this? thanks Nicola
Hello my name is ***** ***** I am a solicitor and I am very happy to help you today. What would you like to know about this?
Customer: replied 2 years ago.
Hi - well i provided quite a lot of detail with regards ***** ***** and my question in the original text?
Yes I have read it, what I am unclear on is what information you are asking us to provide in respect of making a claim?
Customer: replied 2 years ago.
Hi - ah ok. Well at this point the deadline for satisfactory response from the other party is tomorrow at noon. I suspect I will not hear from them or have any positive outcome by then. I feel I have exhausted all other avenues to get resolution so as I understand it my next port of call would have to be small claims but I have never done this and so am concerned it will be expensive or difficult. Could you advise as to whether this is the right route and the process of going to small claims (costs etc) thanks Nicola
No problem Nicola, it does seem as though you have exhausted all avenues, can I check that you have specifically stated that you will issue proceedings in the event that he does not come up with a satisfactory solution?
Customer: replied 2 years ago.
Hi Jenny - yes I used this text in the previous correspondenceWe reserve all our rights, including the right to commence proceedings against you (without further reference to you should that prove necessary) for breach of contract and to seek an order for damages plus interest and costs.
Ignoring this letter may lead to our starting proceedings against you and may increase your liability for costs.I am aware intellectual property issues can't be raised in small claims but we kept the open letter regarding the use of our ip without permission separate to the without prejudice letter. and the issue there is more that they fabricated a testimonial from us and refuse to sign the undertaking letter to prevent them doing this again.its been a long and drawn out process attempting to get resolution from these guys but it has almost destroyed my business so i am willing to take to to small claims
Perfect. As you know the exact amount you wish to claim you can issue this claim online , I would wait until the 16 April to do so,using the money claim online service. The issue fee for this claim will be £410. You will need to register an account as an organisation and fill in all of the details of the breach of contract in the Claim form. Whilst I appreciate there were no written terms and conditions this is still a breach of contract issue. The money claim online homepage is here there is detailed guidance on how to use the service here: guidance should provide you with all of the information you need to start the claim. If you have any further questions please do ask. If I have answered your question please do take the time to rate my answer as I am not otherwise paid for answering your question. Thank you and all the best.
Customer: replied 2 years ago.
Hi - ok so you feel this is the appropriate cause of action and i have a case? Why do you recommend waiting until the 16th? my deadline has always been noon on 15 and this is with an additional month of extra time provided to them for no actual good reason as they have had all the correspondence twice now. Also apart from the 410 gbp costs what are the other costs incurred in this? thanks
Hi yes you clearly do have a case on the basis of the fact that they have failed to provide the contracted services and you have suffered a loss as a result. Whilst technically you can issue a claim on 15 (after noon) there is no legal need to do so immediately. Ultimately it is up to you but my preference would be to wait till 16th in case there is a late response. The claim is likely to be allocated to the small claims track (as it is less than £10k). The hearing fee will therefore be £335. You will not need to pay any solicitors fees unless you chose to appoint one.
Jenny and other Law Specialists are ready to help you
Customer: replied 2 years ago.
thanks for explaining. ok small claims it is! thanks and regards
No problem all the best.