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james bruce
james bruce, Solicitor-Advocate
Category: Law
Satisfied Customers: 2314
Experience:  Owner at James Bruce Solicitors
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My daughter changed school over the summer and we gave the

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My daughter changed school over the summer and we gave the notice to her previous school (a UK private school) on 5 June 2020, ie with than a full term.
The school is asking us for the payment in lieu of notice for a full term.Relevant clause from the school’s terms and conditions:
"Withdrawal by the Parents: If the Pupil is withdrawn on less than a Term's Written Notice, or excluded for more than 28 days for non-payment of Fees as set out in clause 4.6, Fees in lieu of Notice less the Acceptance Deposit will be due and payable as a debt immediately unless the place is filled immediately and without loss to the School."The school says that the 3 new children that joined in September were registered to join the school before we gave our notice. They also say that they have not been able to fill our daughter’s place.Our daughter’s class was not full last year and there was no waiting list.
We understand that the class is again not full this year.Could you please advise if we have to pay the full term or if there are good defences which could be brought forward?
For example, could it be argued that, given that i) the class was not full anyway, ii) they have always tried to get more children in and iii) they have never turned any child down, they have therefore suffered no loss (measured as opportunity cost), beyond things like advertising costs and maybe some admin? The only way they would have suffered a loss is if they had turned a child down between the first day of the term and the date of our notice. The fact that our notice was late had no impact on the fact that they would have lost the income anyway.Thank you for your help.
JA: Have you talked to a lawyer about this? In which country do you live? If different, which country is your legal question related to?
Customer: I have not yet talked to a lawyer on this. The country is England
JA: What steps have you taken so far?
Customer: Nothing, I have only exchanged a few emails with the school.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No

Hello, I hope you are well. My name is***** am a solicitor advocate and I will be assisting you with your question today. I am very sorry to hear of the problem you are experiencing and I will do my best to help you with this matter.

I have read you information above, thank you for that. What is unclear, is whether you gave the school a full terms notice as required as per clause 4.6 ?

Customer: replied 5 days ago.
Hi James, thank you for your message.
My apologies for the typo, I did NOT give a full terms notice, we gave a notice which was less than a full term.

Thank you for that additional information, that will be helpfull in allowing me to advise you today.

I full understand you frustration with what you have explained. However, if the clause is there in the agreement and is clear about the requirement for a full terms notice to be served, then very sorry to say but the school could and most likely would enforce that clause and seek that terms fees from you. Failure to settle would be a breach of contract. If they took the matter to court, the you could also be looking at interest payments and costs.

Customer: replied 5 days ago.
Thank you James.
I appreciate the breach of contract but is the clause actually enforceable in court?
Doesn't the school need to prove the actual loss?

No, it is a contractual clause, if you breach that, you are liable for the loss caused, in this case one terms school fees.

Customer: replied 5 days ago.
Is it fair to ask them 1) to prove that they have not managed to replace my daughter’s place and 2) what they have done to try (under their duty to mitigate the loss)?

You can ask for evidence that they have not immediately filled the place.

They do not have to to show what they have done, there is nothing in that clause saying that they have to.

Under contract law, as long as they have not immediately filled the position at no loss to them, then you are legally and contractually liable to them.

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