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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 73917
Experience:  Qualified Solicitor
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I have paid for a caterer to cater at an event on the 10th

Customer Question

Hi I have paid for a caterer to cater at an event on the 10th July. It looks like we may need to cancel the event if lock down restrictions are not eased by that time. I paid in full when I booked even though i only needed to have paid a 10% deposit at the time of booking and could have paid the balance two weeks before the event. Their terms and conditions state that they do not give any refunds no matter how far in advance you cancel your event. However I now want to cancel. They are refusing to give me 90% of my fee back. My point to them is that if I had only paid the deposit they would only be holding on to 10% of the fee. But I had in good faith paid the whole amount upfront and now they are refusing to return any of it. Surely this can not be legally correct?
JA: Where are you? It matters because laws vary by location.
Customer: Surrey
JA: What steps have you taken so far?
Customer: Emailed them to cancel the event and ask for 90% of the fee back
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: No
Submitted: 20 days ago.
Category: Law
Expert:  Ben Jones replied 20 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 20 days ago.

When did you make the payment? and if possible, please upload a copy of their terms on here

Customer: replied 20 days ago.
https://springbokbbq.co.uk/admin/terms-conditions/Payment was made on the 11th May.
Expert:  Ben Jones replied 20 days ago.

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now; 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.

Expert:  Ben Jones replied 20 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about the issues you have experienced in your situation.

Sadly the law will not look at what-if scenario, such as what if you had not yet paid them the full amount and that you would not have been liable in that case. The fact of the matter is that you had already paid them and you are then still bound by the terms at the time.

Of course that does not give them the automatic right to charge you what they want and to issue a no-refund policy without an consideration as to the reasons for the cancellation and how that would have impacted them (i.e. are they covering genuine losses which they cannot recoup, or are they making a profit from you for nothing).

In any event, you can potentially try and rely on the law of frustration to push a cancellation with a refund, at least in part. The legal principle of ‘frustration’ can sometimes be used to discharge the obligations of both parties to a contract and allow them to walk away from the contractual relationship without any further liabilities to each other. However, the circumstances when this may occur are relatively rare and certain factors have to be satisfied for it to be applicable. The most relevant ones are:

- an unforeseen event occurs after a contract is entered into; and

- this event is outside the control of the parties, and makes the contract impossible, illegal or radically different to perform.

Therefore, the event which is relied on must fundamentally change the performance of the contract, to such a degree that it basically makes it completely different to what was originally intended. It is not enough for the contract to have only become more expensive or more difficult to perform, there has to be a fundamental change to the original purposes of the contract.

If a contract is deemed to have been frustrated, the parties to it do not need to perform any future contractual obligations. In addition, they cannot claim damages for non-performance of these future obligations. Additionally, any money already paid under the contract before the frustrating event occurred is repayable to the other side. However, if a party has incurred expenses before the frustrating event occurred and such expenses are non-recoverable, they can seek to offset these from any money due for repayment.

Whilst either party can try and argue that frustration has occurred, it is important to note that this is a relatively rare occurrence and if challenged by the other side, only a court an decide if it can be applied in these specific circumstances. That does mean that if the parties cannot agree to it, it may have to be taken to court for resolution.

Expert:  Ben Jones replied 20 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.