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JimLawyer
JimLawyer, Solicitor
Category: Law
Satisfied Customers: 13933
Experience:  Senior Associate Solicitor
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Hope you are really well! Not sure if you remember as I know

Customer Question

Hey Jim
Hope you are really well!
Not sure if you remember as I know you have many people you advise to, not sure if you can see from my account this time last year there was dispute raised from me to the Venue events hire org ‘Willows’ I booked regarding re-payment of deposit refund. You assisted me with my rights and contractual reasons and terminology with a letter. Just to help you recall it was last left at they responded with a letter or email confirming no refunds will be given to which then I advised with you and you advised I would need to go through the claims process. I had stopped all communications with them and left it at that to whenever I'd start to engage in the lengthy claims process.
To my surprise the org 'Willows' recently got in contact with me....Long story short they would like to offer me and agreement where they would commit to now actually re-paying the deposit back (which is great) even though unacceptable what they did but nevertheless - step forward. Initially they proposed full payment by this time next year 2022 June and I confirmed no not acceptable given how I was treated as a client etc etc then the Finance director or one of the director got in contact with me and proposed 50% of deposit to be paid no later than 31st Dec 21 and remaining by March 2022. At this current stage, the agreement is with me to review as I have attached for you along with the email correspondence, as I told them based on the recent dealings with me I would seek legal advise on how to proceed forward and confirm my decision to them close of business this week.
I have asked and argued why they cannot make the full payment by end of this year but given the current climate circumstances they have assured they will do their absolute best to commit to paying myself and all the other customers that are in the same positions as myself if not worse for the sake of re-building their reputation.
It is positive that they have taken this first step and claiming that they will provide full refund stipulated by the timeframes however I am wary and concerned by this that if it hinders or impact in me raising/initiating the claims proceedings over the 3 year limit civil claims proceeding as I can remember when briefly studying civil law. I have raised this concern to them and made the director away that this better not be a 'get out of jail' for them to buy time and get me into the agreement to not be able to claim sue against them, the director advised/assured otherwise this is not the case and seemed reasonable, however you can never be sure.
Please can I ask when you get a chance to review the agreement that they have sent me and let me know if there needs to be any changes to it as director himself has advised to let them know of any amendments to make etc One of the main concerns for me in the agreement there is a section where it is mentioned that I won’t be able to claim /sue against them which of course is them saving themselves, I don’t want to have to sign to this but at the same time I will if they commit to returning my money.
Also let me know your thoughts and if you think I should proceed with the agreements or anything else that I should ask for.
Look forward to hearing from you.
Regards
Tareqnote key detail dates
Initial Hire date 20th Aug 2020
Rescheduled Hire date 15th Feb 2020
Constant communication between more to Willows regarding my concern of event going ahead and request for refund - Apr - Aug 2020
Submitted: 15 days ago.
Category: Law
Expert:  JimLawyer replied 15 days ago.

Hello, this is Jim and welcome back to JustAnswer.

Expert:  JimLawyer replied 15 days ago.

That sounds encouraging - court action has a habit of focussing the mind so for the to offer payment of the deposit back to you is good news.
I am not sure why they will offer full payment by June 2022 as that is a full year away from now. It can only because they are impecunious / have poor cash flow in my view. You could sue but if they defend it would probably take 9-12 months to be decided at court in any event.
They then make a revised offer of 50% by end of this year and then the balance by March 2022 which is slightly better.
There is no reason why it should take this long though - not only that, they want you to sign a deed so it needs to be witnessed. I note there is a reference to a limited company here - Aquesta Limited (trading as "The Willows").
My thoughts are this - the Companies Act 2006 applies to the directors. If they run the limited company knowing it to be insolvent (ie. why can't they pay this now?) then the directors are in breach of the Act above. Meaning they would face personal liability if ever they were to be sued.
The contract itself looks fine, it means they won't admit blame but they still want to pay as a gesture of goodwill and by signing it you agree not to tell anyone about the agreement, and agree not to sue them either. It is pretty standard in my view. The only question for you is whether you want to wait until December this year to see your money. They sort of have the upper hand as if you press on with the claim and they maintain a denial of liability the case will be a while before a hearing is listed - the courts are clogged full of Covid-dispute claims at the moment so if you rejected this offer then it could mean lengthy court action. On the plus side, signing this as a deed means you get a full 12 years to enforce the terms, not 6 as for a normal contract. You could reply to them to ask why they cannot pay you for 6 months and refer to the Companies Act 2006 in the sense the directors would be personally liable if it turns out the limited company has no means to pay a court judgment for example.
In summary I think yes, it's a good result but to wait 6 months is questionable - you may decide to simply sign and at least you have evidence of the agreement and that they will pay in December this year and then March next.

Expert:  JimLawyer replied 15 days ago.

I hope this helps and answers the question - my goal is to ensure you are happy with the answer and have the information you need. If you have any follow up questions then please let me know. I will reply as soon as I can to help with any further queries.

Many thanks,
Jim

Expert:  JimLawyer replied 15 days ago.

Please let me know if the answer helped or if you need me to cover anything else?. I am happy to clarify the answer or if you have any follow up questions. If so, I’d be grateful if you would let me know. I am free most days, including weekends, so feel free to ask me anything you are unsure of.

Best wishes,

Jim

Customer: replied 15 days ago.
Jim thanks a lot for your detailed answer, glad you have looked over it, overall I think I will sign but before I do as last thing to try would be what you mentioned above regarding paying now, why taking six months, companies act 2006 and breach of contract directors etc is Could you provide like a sentence to go in an email or some sort of brief formal letter making references to all these points, be good to challenge/ask/query this before I sign?
Other than that you don't feel anything needs amending regarding the agreement? I think it looks ok other than annoying point 4 but understand this is their way to save themselves...
Look forward to hearing from you.
Regards
T
Expert:  JimLawyer replied 15 days ago.

Dear Sirs,

Without Prejudice Save as to Costs

I refer to the above matter.
I note your offer to settle and note the terms which appear to be set out in a deed. I am not sure why a simple contract couldn't be used and why it needs to be a deed given the requirement for witness signatures. In principle I am happy with the terms but would first like to enquire why payment will take 6 and then 9 months from now. I presume you have sufficient cash resources to compromise my claim and pay what is agreed. I note you are a company limited by guarantee and as such the Companies Act 2006 provisions apply - you will be aware that if you run a limited company knowing it to be insolvent then the directors face personal liability. I have had no explanation of why I have to wait 6 and then 9 months for payment and can only presume it is due to cash flow issues. That being the case I would ask the directors to also give a personal guarantee, under the aforementioned deed, to guarantee the agreed payments in the event the limited company is unable to pay me in 6 months time (by December 2021) and then the balance by March 2022.

If you are unwilling to agree to this, I ask for your reasons.
I do wish to compromise this dispute and settle though as you can appreciate, to have to wait for so long is not desirable in my view.
Yours sincerely,

Expert:  JimLawyer replied 15 days ago.

Hi Tareq, I just put something together for you there. I would hope they will just agree to pay you now and not have to wait for several months...

Customer: replied 15 days ago.
perfect! thanks alot Jim, really appreciate your help - will respond with above text and see what the response is!
Expert:  JimLawyer replied 15 days ago.

No problem, I think it's a bit much for them to ask you to sign a deed (which is stronger than a contract and gives them 12 and not 6 years to sue if you breached the agreement) yet they can't pay you for 6/9 months. You could agree to sign on the proviso they pay your first instalments within 7 days from now, then the balance by say, October.

Customer: replied 15 days ago.
just quickly, when you say refer to the 12 year timeframe, am i right in saying that if I sign this agreement I cannot make a claim/sue against them until 12 years has passed? I am just trying to understand this particular point? Appreciate your help.
Expert:  JimLawyer replied 15 days ago.

Yes, so a deed just means it's a more robust contract - more "cast iron" and if one party breaches the terms, the other party can sue for any period up to 12 years from that breach. Not the usual 6 you get in a normal contract.

Expert:  JimLawyer replied 15 days ago.

It works both ways, you would have 12 years to sue them if they were the ones in breach.

Customer: replied 15 days ago.
right i see, so in simple terms if they dont make the first payment by 31st decemeber or missed the balance payment by march 22 am i right in saying that they will be breaching the agreemennt / deed they have offered me??
Expert:  JimLawyer replied 15 days ago.

Yes, if they fail to make payment, you could sue them any time between 31st December 2021 and for up to 12 years after. They would be in breach. Bear in mind the deed is between you and the limited company. If the limited company failed this year, they would not pay you. Hence why I would suggest asking the directors to also sign the deed to make them personally liable if the company failed.

Customer: replied 15 days ago.
right now i understand!! thanks for clarifying that - from that written text you gave me before i send it off just want to check is that captured part of the text, if not can you just insert somewhere if possible would really appreciate it so all areas covered and it really puts them on the spot... and aslo maybe the point you mentioned above regarding willing to sign on the provision that they pay first installments monthly and the balance by Decemebr to take into thier cashflow consideration (which they claim)
Customer: replied 15 days ago.
this is what i have currently draftedDear Sirs,Without Prejudice Save as to CostsI refer to the above matter.I note your offer to settle and note the terms which appear to be set out in a deed. I am not sure why a simple contract couldn't be used and why it needs to be a deed given the requirement for witness signatures. In principle I am happy with the terms but would first like to enquire why payment will take 6 and then 9 months from now. I presume you have sufficient cash resources to compromise my claim and pay what is agreed. I note you are a company limited by guarantee and as such the Companies Act 2006 provisions apply - you will be aware that if you run a limited company knowing it to be insolvent then the directors face personal liability. I have had no explanation of why I have to wait 6 and then 9 months for payment and can only presume it is due to cash flow issues. That being the case I would ask the directors to also give a personal guarantee, under the aforementioned deed, to guarantee the agreed payments in the event the limited company is unable to pay me in 6 months time (by December 2021) and then the balance by March 2022.If you are unwilling to agree to this, I ask for your reasons.I do wish to compromise this dispute and settle though as you can appreciate, to have to wait for so long is not desirable in my view.Yours sincerely,Tareq Rahman
***********
Customer: replied 15 days ago.
if you could just insert the part re directors personally signing if required so they are held liable and my prefered payment plan from now until 31 dec 2021 , instead of 31 dec 21 and then balance mar 22
Expert:  JimLawyer replied 15 days ago.

Dear Sirs,

Without Prejudice Save as to Costs

I refer to the above matter.

I note your offer to settle and note the terms which appear to be set out in a deed. I am not sure why a simple contract couldn't be used and why it needs to be a deed given the requirement for witness signatures. In principle I am happy with the terms but would first like to enquire why payment will take 6 and then 9 months from now. I presume you have sufficient cash resources to compromise my claim and pay what is agreed. I note you are a company limited by guarantee and as such the Companies Act 2006 provisions apply - you will be aware that if you run a limited company knowing it to be insolvent then the directors face personal liability. I have had no explanation of why I have to wait 6 and then 9 months for payment and can only presume it is due to cash flow issues. That being the case I would ask the directors to also give a personal guarantee, under the aforementioned deed, to guarantee the agreed payments in the event the limited company is unable to pay me in 6 months time (by December 2021) and then the balance by March 2022. I ask therefore that the directors of Aquesta Limited also sign the deed as a personal guarantee for the payments in the event the Limited company is unable to pay my by both of the above dates.

I trust you have no objections to this - if you do, please confirm why with reference to the reasons why both payments are to be delayed to December 2021 and March 2022 respectively.

I do wish to compromise this dispute and settle though as you can appreciate, to have to wait for so long is not desirable in my view. You will be aware if the court grants judgment in my favour payment is required within 14 days so I ask that you reconsider the timelines for both payments.

Yours sincerely,

Customer: replied 15 days ago.
brilliant, you are a life saver! thanks again for your help, support - really appreciate it! Have a great evening Jim!
Expert:  JimLawyer replied 15 days ago.

My pleasure and happy to help as always. Have a good evening too!

Customer: replied 11 days ago.
Hey Jim
I received a response from director see attached and let me know your thoughts
Expert:  JimLawyer replied 11 days ago.

Thanks, it's your choice - as he says if you decided to sue it would take several months, probably more than 12 given the amount of covid related claims in the courts at the moment. My view is you take their offer and that way at least you have a signed agreement knowing you will be paid.

Customer: replied 11 days ago.
that’s the best thing to do, the fact they have offered to pay per timescales is the positive I need to take away from it! I just need to monitor anticipate time of the said payments hopefully they meet targets set then I don’t see there to be any issues however when they start missing or don’t make the said payments which is when I will come to your for advice regarding can dos or cant breaches etc and how I should move forward in those scenarios, finger cross it does not come to that. Just want to say thanks again for the support advice much appreciated - have a great weekend!