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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 59734
Experience:  Qualified Solicitor
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Query regarding fees payable in lieu of notice. I made an

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Query regarding fees payable in lieu of notice. I made an independent school aware that we were looking at another school with timescales and asked if the deposit could be held pending outcome. They did not answer my question. My child had no school potentially to go to thus we signed their contract and wrote asking again about the deposit with no answer. Our son then got a place at the other school and we immediately informed the school asking if there was any chance of the deposit back. They said not only do we owe the deposit (which they had banked) but the remaining amount for a terms fees in lieu we were apparently 3 days out of a terms notice. We had no copy of the terms and conditions, nil was on their website either and they had not answered any questions regarding finances. Thus in terms of informed consent or reasonable access to necessary info we were sorely lacking. I’ve tried to make a complaint but they have ignored this and given us a week to pay the remaining amount if they will sue us. What is the best plan is there any legal come back and is it worth it? We were also going to ask our complaint to go to the board of governors if they pursue as seems ethically very strange in terms of realistic loss 3 days out and not answering questions regarding financial implications. We could have been prewarned if this possibility since they knew our time frames
Assistant: Where are you? It matters because laws vary by location.
Customer: London Worcester park
Assistant: What steps have you taken so far?
Customer: I’d written my concerns as a list and ways in which they had ignored emails, we were not fully informed etc, asked for the terms and conditions which we now have post hoc and then written over a month ago saying if they wish to pursue asking I’d like to make a formal complaint that they have ignored. They have only just written saying they will take us to court if we don’t pay the remaining amount in a certain time frame and have not addressed any concerns which is upsetting
Assistant: Anything else you want the lawyer to know before I connect you?
Customer: I don’t think so thanks

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Have they now provided you with a copy of their terms and conditions? If so, please can you upload it on here so that I can take a look?

Customer: replied 10 days ago.
Here is what was sent thanks
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Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Customer: replied 10 days ago.
Sorry a bit more
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Final thanks
Customer: replied 10 days ago.
These were the terms and conditions that we never got and are not on their website thus is what we signed
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Final
Customer: replied 10 days ago.
One before last

Many thanks for your patience. Whilst you will likely lose the deposit, the issue is mainly to do with the term’s fees they are pursuing you for as a result of the alleged failure to give sufficient notice to withdraw your child.

Whilst a term’s fees are common in these scenarios, you can always argue that you were not issued with the terms and conditions requiring that until after the event had passed. So whilst you are prepared to accept that the deposit will be lost and they can use that to cover any losses, you should not be held liable for the term’s notice they are expecting as you simply had no contractual obligation to abide by that, as no formal terms of business were issued to you. Had you been issued with such terms, you would have known what was contractually expected of you and timed the notice or withdrawal differently.

Just be aware though that there is nothing stopping them from taking this to court and it is their prerogative to do this. It means you will have to do your best to defend the claim and use the above argument. Assuming he total amount claimed is less than £10,000 it means it will go in the Small Claims Court where the risks are not that high and even if you lose you will only be liable for the amount sought but not the school’s legal fees.

Does this answer your query?

Customer: replied 9 days ago.
Thank you very much indeed. Just to check 1. If we don’t pay in a week they said they will add their legal costs and 1.5% per month based on t&c we did not get but if small claims unlikely they’ll get this and vice versa? 2. From reading around other cases in consumer law and unfair terms would need to be a genuine estimate of loss (they have a reserve list, we were 3 days out of a terms notice and they had pre-warning of this potential) also there is some section on requirement for consumer transparency (no t&c also not answering financial q’s on outcomes when asked re deposit and knew timeline of outcome of other school and did not inform us of potential financial outcomes, also t&c not on their website) is this right please? 3. Would us not asking for the t&c be a big issue as they clearly wrote about deposit and that was in the bit signed but I’m not sure how we could have guessed as mentioned (no formal terms of business) additional financial implications especially as we’d already asked about delaying deposit penalty pending other school outcome with timeframes, my email on declining place asked about getting back deposit and we were shocked when asked in addition for balance of full terms fees 4. Any other point of law that could help if small claims please? Many thanks

Hi there:

1. They cannot claim legal costs for pursuing a claim but if they have engaged debt collectors for example and win, they can add these to the total claim. However, each side pays their own legal fees in the Small Claims Court even if they win

2. Yes, that is correct and they also have a duty to mitigate their losses as soon as it became obvious that they would suffer any (from the point you advised of cancellation) and that would ideally mean finding a replacement pupil

3. Not really, it is their responsibility to provide you with the terms they want to apply in your business relationship with them, not your duty to ask for them. Failure to provide any will backfire on them, not on you.

4. The key is that they cannot just penalise you, they must only pursue you for such costs as are deemed fair and reasonable in the circumstances, considering the genuine pre-estimate of losses incurred and also considering what they have done to try and mitigate these

Customer: replied 7 days ago.
Thanks very much. Final questions.
1. If they don’t respond to us potentially taking to board governors (they’ve ignored plea for formal complaint) and independent school inspectorate (they seem interested from communication with parent aspect) is it worth offering £200 say as final end to the matter - my understanding is that if banked it would bind them to it as final? 2. Is it worth challenging them by asking questions about what losses they have suffered and whether they have filled the place- it looks like with one Mumsnet school they then backed off. 3. If we do need to take a case ourselves in small claims will they need to prove they have filled the place? I presume it will be helpful for us to get a verbal from a parent at the school on whether they have filled it. Also I presume we don’t give our arguments away or is it best to challenge earlier with points above to prevent small claims? Many thanks

If you made an offer and you specifically made it conditional on it being in full and final settlement and it is then accepted by them by being banked, then that is when they will be giving up their rights to take it any further. You can also ask them for proof of costs incurred before you consider this any further as you need to make sure you are only paying for reasonable costs and not being penalised. If you do claim, they will need to supply proof of the costs incurred and also the mitigating steps they have taken to try and reduce/avoid these, which can include evidence that the space was filled. You do not have to give any specific arguments away yet, this can happen further in the process if it gets that far

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