# Compensation Claim against me



## NikNox (23 Jan 2008)

Hi there,

I'm new to this, but am after some advice please.  Short version of events is:-

My son is in a band, band were booked by an Agent to perform on 8th December.  I signed a contract (although it's acutally Terms & Conditions rather than an actual contract) and sent it to the Agent, which they had sent as an attachment to an email.  Never received a signed copy from them.  Anyway, day of gig arrived and one of the band members was too ill to perform.  Tried desperately to organise something else, for 3 hours, and failed and had to cancel gig.  Contacted Venue to cancel.  Shortly afterwards got a phone call from the Agent, very aggressive, telling me I had to 'do something about it'.  Explained that I had tried everything I could think of, short of performing myself, and had failed.  They said they would find a replacement and get back to me.  Never did.

Thought it was done and dusted.  Couple of weeks ago I get Court papers because they have filed a claim for compensation, £1000 plus Court fees.  As far as I can see, no Solicitor involved at present.  I have sent back a defence.  Had my stepmother look over the original 'contract' (she used to work in a Solicitors) and she could see nothing about what happens if there is illness.  No clauses to cover cancellation by the Act either.  And, because I never received a signed copy of the 'contract' myself, she thinks that it is therefore null and void and does not exist.  Today had more papers from the Court, who are transferring the case to a Court more locally.  Have to fill in an Allocation Questionnaire, but can ask for a 'stay' of one month where no action is taken on the case, and giving both parties time to try and sort things out without Court.  

What I would like to know is:-

(a) Are we right in thinking that a Contract is not proper unless it's signed by both parties?
(b) Could I write to the Agent and suggest to them that since they did not send a signed copy of the Contract to me they haven't got a leg to stand on?

I will not be paying this £1000 compensation under any circumstances because I do not believe that they have a right to claim it.  Illness is an unforseen circumstance, beyond my control.

Advice please??  Many thanks.


----------



## ClubMan (23 Jan 2008)

Are you based in the _UK_? _NI _or _GB_? Bear in mind that _Askaboutmoney _is an _Irish _site ficusing mainly on _Irish _personal finance and related issues. You may not get detailed feedback on _UK _specific issues.


----------



## Crugers (23 Jan 2008)

NikNox said:


> Hi there...
> I signed a contract.........
> ...What I would like to know is:-
> 
> ...


 
Hi NikNox
Sorry, but...
Q(a) You started off by saying "..._I signed a contract........."._ Do you not think they have signed it (by now) too? So I suspect there is at least one contract in existance signed by two parties...
Q(b) See answer (a)... They sent you a copy and you agreed to the terms by signing it!

I've no legal background but I think it would be closer to you not having a leg to stand on...
You really do need good legal advice. See a solicitor, soon...


----------



## NikNox (23 Jan 2008)

Crugers,

I see what you're saying, but I am supposed to have, in my possesion, a copy of the contract signed by them.  As you would an employment contract, for example.  They keep the copy signed by you, you keep the copy signed by them.

My stepmother worked in conveyancing, dealing with contracts all the time.  So she knows what they mean.

I have never received a copy of the contract signed by them.  OK, they could send one to me now, but the postmark on the envelope would be proof that I wasn't sent it BEFORE the performance date, which was 8th December 2007.

The original contract was sent to me by email.  I had to download it, print it off and send it back to them.

As far as I see it, the contract is null and void.


----------



## csirl (24 Jan 2008)

Contracts dont have to be written, 2 signed copies etc. to be enforceable (although this helps a lot). If it is clear that a "contract" existed between the 2 parties, even if this is a verbal contract, then the court will say that it must be honoured.


----------



## polly2000 (24 Jan 2008)

I've signed a contract with a government body and I haven't received their part back. They sent me 2 copies in the post with no signatures but showing their department and I kept one copy and sent the other one signed by me back to them

I think what's more important is what is in the the contract given to you


----------



## Stifster (24 Jan 2008)

It doesn't matter that they didn't give you a copy before the event as long as you had seen the terms and conditions before you signed. There doesn't have to be a second copy either.

Looking at it logically, why would the situation be any different if you had a copy in your possession.

As our contract law is based on the same system as the UK I'd imagine you are goosed but get local legal advice.


----------



## FKH (24 Jan 2008)

If one party signs a contract then they are usually bound by its terms, even if the other party does not sign, and it can be enforced against them. You should probably get legal advice from a local solicitor. You could also consider trying to establish where the claimed fee of €1,000 comes from, was this the cost of booking another band?


----------



## NikNox (24 Jan 2008)

[FONT=Verdana, Arial][/FONT] 
[FONT=Verdana, Arial][/FONT] 
[FONT=Verdana, Arial][/FONT] 
[FONT=Verdana, Arial][/FONT] 

Thanks to everyone for your replies.  I thought it might be a good idea to type out the contract for all to see.  I cannot see anywhere where it states that the Act is liable if they cancel, and nothing about cancelling due to illness.  In fact, Clause 2 leaves the onus down to the Agent.  I cannot see that the Act were in breach of this contract at all.  If anyone can, please point it out to me.

As for the £1000, I have no idea where that figure comes from.  There hasn't been a breakdown given, and the Act were only being paid £300 for the gig.  They paid £70 for the hire of a van, which they never used in the end, so they were, in fact, out of pocket themselves.  It was a very unfortunate situation, and they really wanted to do the gig because £300 would have been enough for them to produce their next EP.  But, someone was ill, I tried to find a replacement and couldn't, the Agents said they would find a replacement and didn't, so I see it as completely unfair that they are suing for compensation.  The band member who was ill has a doctor's certificate, and a back to work certificate to prove his illness, so the Agent cannot claim falsehood or misstatement.  It was just one of those things that happens from time to time.

I do understand what everyone is saying about them not signing the Contract, but surely because it states in Clause 1 that the parties to the Contract are solely the Agent and the Act, then they should have sent me their signed copy?
____________________________________________________


1. The parties to this contract are solely and Agent and the Act.
2. The Agent undertakes to provide by all reasonable means and endeavours the services herein defined and undertakes all obligations and liabilities incurred as a result of the provision of these services.
3. The services to be provided by the Agent are to be the provision of the Act to the specification of the Engager at such times as specified by the Engager.
4. The Act agrees to be solely contracted to the Agent for the purpose of the provision of the services defined in this agreement and all obligations and liabilities incurred in the provision of these services shall be enjoyed exclusively by the Agent subject to the provisions herein defined as:-
a) The Engager undertakes to provide full provision of a safe supply of electrical power to the Act, where appropriate
b) The Engager will assume full responsibility for any loss or damage incurred by the Act where such damage is as a result of any reasonably forseeable event outside the control of the Act whilst they are at the venue.
5. The Agent does not accept liabilty for any loss or damage occurring as a result of falsehoods or misstatements declared by either the Act or the Engager.
6. Where a deliberate falsehood or misstatement has resulted in loss or damage caused by the Agent, the Agent reserves the right to seek remunerative compensation from the party deemed to have made such representations for any losses caused to it's good name and reputation or in a pecuniary manner.
7. All fees payable to the Act shall be agreed solely between the Agent and the Act, and should not be disclosed to the Engager.
8. In the event of cancellation of the performance by the Engager not more than one calendar month before the contracted date, a compensatory payment of fifty percent of the full agreed fee shall be payable to the Act, except where otherwise mutually agreed in writing and signed by both parties.
9. Any communications required between the Act and the Engager shall be made exclusively through the Agent.
10. Any modifications to the contractual terms shall only be made with the full agreement of the Agent and the Act, and will not form any alteration of any of the general contractual obligations herein agreed.


----------



## FKH (24 Jan 2008)

NikNox,

I seems to me that you are the Agent under the contract and are liable under Clause 2. There was definitively a verbal contract that you would supply the band and by your actions in trying to find a replacement I do not think that you could argue no contract existed.

I think that the Venue may be successful against you as undertook to provide an Act by "all reasonable means and endeavours" and failed to do so. You could try and settle the matter for a lesser amount. I would speak to a solicitor before you do this and get their advice.


----------



## NikNox (24 Jan 2008)

FKH, I am not the Agent.  I am the mother of one of the band members, the Act, and I signed the contract on their behalf.


----------



## NikNox (24 Jan 2008)

Oh and it is the Agent that is taking me to Court for compensation.  I would assume that the Venue and the Agent had their own contract.


----------



## FKH (24 Jan 2008)

Sorry NikNox, I see what you mean now. You probably should have contacted the Agent when you first had to cancel, not the Venue, but that is irrelevant now.

The Agent may be facing a compensation claim from the Venue and this is why they are suing you. The £1,000 may be what they are being sued for by the Venue.

I think in this instance if it went before a judge they may have sympathy for the band but you could be liable for maybe the £300. If you have to go to court you should really have a solicitor with you to show that you are taking the matter seriously.


----------



## NikNox (24 Jan 2008)

I have today called the Citizens Advice Bureau, and they have confirmed that it doesn't matter that the contract wasn't signed by the Agent.  But, I read out the contract to them on the phone and they couldn't see any breach of contract.  They also suggested I try to find out whether the Venue had to cancel it's party (it was a private party that the band were hired for, where no tickets were sold, for 50 people, which is why we contacted them in the first instance to give them time to get a replacement/disco/whatever. I felt it was common courtesy to do that) or not.  They did suggest I go to a Solicitor and take advantage of various offers for free time.  There's one locally that offers a 30 minute free consultation, which if I'm prepared well, should be enough time.  I reckon I could self-represent in Court too.  Sadly, I'm not a wealthy woman, and therefore cannot afford either Solicitors fees or the compensation!  I also do not believe that I am in the wrong here.  It was an unforseen circumstance, regrettable yes, but totally beyond my control.


----------



## Brendan Burgess (24 Jan 2008)

Someone lost out as a result of your band failing to perform. 

The agent. 
The venue.
The people attending the party. 

What do you expect of them? It seems to me that they have lost out and should be compensated by you or by the band. 

This is not a legal opinion, just a matter of fairness. 

Brendan


----------



## NikNox (24 Jan 2008)

Brendan said:


> Someone lost out as a result of your band failing to perform.
> 
> The agent.
> The venue.
> ...


 
And the band lost out too, to the tune of £300.  It wasn't their fault that one of the members was too ill to perform.  It happens.  No-one was particularly pleased with the nature of events, least of all the member who was ill because he felt that he was letting everyone down.  But he couldn't help it that he was ill could he?  I don't think it's fair that I should have to pay £1000 for something that was beyond anyone's control.


----------



## NikNox (24 Jan 2008)

Also, the Agents have got insurance for this kind of thing, so effectively they won't have lost anything financially, whereas the band lost the £70 they spent on hiring a van they didn't use.  Maybe WE should be the ones suing for compensation!


----------



## Tadhgin (24 Jan 2008)

What does the compensation sought relate to? Is it reputational damage (to the agent) or is it the cost of getting a replacement band at short notice? Or is it something else?


----------



## NikNox (24 Jan 2008)

Tadhgin said:


> What does the compensation sought relate to? Is it reputational damage (to the agent) or is it the cost of getting a replacement band at short notice? Or is it something else?


 
I have no idea, except 'losses incurred' and 'failure in my contractual obligation'.  If I could see somewhere in the contract that had been breached by the band I could understand it.  There is no breakdown of the compensation demanded.


----------



## so-crates (24 Jan 2008)

NikNox said:


> I have no idea, except 'losses incurred' and 'failure in my contractual obligation'. If I could see somewhere in the contract that had been breached by the band I could understand it. There is no breakdown of the compensation demanded.


 
Maybe I am being suspicious but I think the Agent was being paid considerably more than they were paying the Act? The conditions appear to be arranged to prevent the Act finding out the cost of the Act and the Venue finding out the price of the Act. I am sure the Agent wants to make money but maybe the difference is quite sizeable.

Not by any means a legal-eagle but it would seem to me that in Point 2 





> The *Agent* undertakes to provide by all reasonable means and endeavours the services herein defined and *undertakes all obligations and liabilities* incurred as a result of the provision of these services


 
and Point 4


> The Act agrees to be solely contracted to the Agent for the purpose of the provision of the services defined in this agreement and all obligations and liabilities incurred in the provision of these services shall be enjoyed exclusively by the Agent subject to the provisions....


 
indicate that the Agent is saying that they are solely liable...

By point 8 there is a performance obligation for the Engager but none for the Act which seems odd given that according to point 1 the only parties to this contract are the Act and the Agent (basically why would the performance obligation on the Engager be listed in a contract they are not party to? Surely that performance obligation in this contract could only be discharged by the Agent?)

It just reads to me like the Agent had themselves a contract of terms and conditions with the Engager and they just fiddled it around a bit to use with the Act but didn't actually make the terms fit. 

Ask a local legal expert, but I think that contract might be found a little bit wanting from the Agents perspective. There is nothing to say that the Agent can't sue for recompense but that does not mean they have any entitlement to the £1000 they have asked for. Whether or not the band were discommoded by not being able to perform is pretty immaterial, they are the ones that didn't fulfil their obligation but that doesn't mean that they owe everything the Agent is being approached for.


----------



## NikNox (25 Jan 2008)

Exactly So-Crates, I, with my untutored eye, thought that too, that the Contract had been fiddled about with by the Agent.  Performance obligation should surely be placed onto the band, which is does not appear to be.  Also, in Clause 9 it states that any communication between the Act and the Engager shall be made exclusively through the Agent, indicating that they don't want either to know the costs involved.  I do think, possibly, that that could be where they're getting us, because I contacted the Venue in the first instance to cancel the performance.  I thought that only fair, to give them time to find a replacement.  Besides, it was a Saturday, and I didn't know they would be at work.  They were.  There is nothing to say that the Agent can't sue for recompense, but there's nothing to state that they can, except for Clause 6 (deliberate falsehoods or misstatements, neither of which happened because the illness was true and can be backed up by medical certification).

I wouldn't object, too much, if it comes down to it, recompensing them the £300 that the Act were due to be paid.  That would seem fairest to me.  Anymore than that however is, I feel, over the top and not my responsibility.  If we had just cancelled the performance, with no reason, then that would be a different matter.  But, illness surely should not be a reason for litigation, especially for such a huge amount.  I think that the Agent served papers on me (without legal advice I hasten to add, they just went straight to Small Claims Court) and hoped that I would bow down like a frightened rabbit and pay up.  But, I am not an idiot, and can see that there is something not right here.  Hence my requests for advice.  The better armed I am, the better a case I can present.  But, I will see a Solicitor next week.


----------



## csirl (25 Jan 2008)

Niknox, you have to bear in mind that there may be verbal contracts that are enforceable existing on top of the written contract. You're looking at it too much from the point of view of the band. You need to look at it as follows:

The band are a service provider. They agreed to provide a service, on behalf of an Agent, to a venue. The service was not provided. As a result the Agent/Venue lost money and/or damaged their reputation. The customers who were to avail of the bands service either (i) did not get the service they were expecting or (ii) the Agent and/or Venue had to provide an alternative service at short notice and possibly at greater cost.

The band are self employed contractors in this arrangement. They did not perform the contract and as a result the receipients of the service lost out. The fact that a member of the band was ill, though unfortunate, is irrevelent - the contract wasnt performed (p.s. what I mean by the "contract wasnt performed" is that the band did not do what had been agreed i.e. play the gig, and this not need be a written contract).

This is no different to e.g. 

If you hired a contractor to install e.g. a heating system in your house at a cost of €5k. And as a resuilt of the heating system not being fully installed by the contractor (maybe he was sick?), you got a bad water leak which damaged your house. Wouldnt you expect the contractor to pay for the damage even if the repair costs were €20k - a lot higher than the price you paid the contractor to install the heating? 

The comparison with the band is that the €300 is equivalent to the 5k above and the €1,000 to the €20k.

All you can do in this situation is try to get more information on the losses incurred by the various people to ensure that the €1,000 is an accurate and fair amount.


----------



## MugsGame (25 Jan 2008)

> I think that the Agent served papers on me (without legal advice I hasten to add, they just went straight to Small Claims Court)



Small Claims Court is for consumer remedies, it can't adjudicate on commercial contract disputes. But I would tend to agree with Brendan and csirl that you do have some liability, if only from a fairness perspective.


----------



## Stifster (25 Jan 2008)

MugsGame said:


> Small Claims Court is for consumer remedies, it can't adjudicate on commercial contract disputes. But I would tend to agree with Brendan and csirl that you do have some liability, if only from a fairness perspective.


 
The OP is in the UK.


----------



## NikNox (25 Jan 2008)

They did not perform because they could not perform, that's my point really.  Had they been fully functional then they would have provided the service they were engaged to do.  What would have happened if the van had broken down and was irrepairable on the way to the gig?  What I'm saying is, yes I know they were meant to perform and I see the point about them not providing the service they were meant to, but that was because it was impossible for them to do so.  I don't think the fact that a member was ill is irrelevant, it's the reason they cancelled.  If someone couldn't fit a heating system into my house because they were ill I wouldn't sue them if I had a leak.  That's ridiculous.  As humans, by nature we are prone to not being able to do things sometimes.  It happens.  If you don't go to work because you are ill your employer doesn't sue you does he? You have signed a contract to say that you will be there on certain days at certain times, and agree to provide a service to that employer.  

I have said previously that if it comes down to it, then the £300 that the band were due to be paid would be a more reasonable amount to pay.  They lost out as a result of the illness too, and are £70 out of pocket because they didn't use the van they hired.  Could go round and round on this one.


----------



## NikNox (25 Jan 2008)

Also, if I had a water leak, my home contents insurance would cover it and I would not expect anyone else too.  Likewise, the Agent has insurance for exactly this kind of eventuality.


----------



## Tadhgin (25 Jan 2008)

It is important that you get a solicitor. He or she will seek to identify the purpose of the compensation and quantify the cost of same. It may well be possible to settle this before the Court. If not, you will at least be better served in Court.


----------



## NikNox (25 Jan 2008)

Tadhgin said:


> It is important that you get a solicitor. He or she will seek to identify the purpose of the compensation and quantify the cost of same. It may well be possible to settle this before the Court. If not, you will at least be better served in Court.


 
I know, the only problem with that is that I cannot afford to be represented by a Solicitor.  At £180 an hour, average, that's a hell of a lot of money! I'll go for a free consult and then represent myself, if it can't be settled out of Court.


----------



## so-crates (26 Jan 2008)

Maybe it might be worth considering negotiating a settlement with the Agent? As you said


> I wouldn't object, too much, if it comes down to it, recompensing them the £300 that the Act were due to be paid. That would seem fairest to me.


so in other words you are acknowledging that the other party was put out by this. I think it wouldn't be unreasonable to approach them with an offer of partial compo on this basis. It may also be more cost-effective for both parties. 
Firstly though, it may be worth asking them to elaborate on "costs incurred", after all, they are asking for a sum which is more than three times what they valued the bands performance at so it is perfectly reasonable for you to query how they arrived at the sum they believe their due. I would ask for a detailed list of the costs incurred. If they refuse to provide then it is reasonable to query the validity of their claim. If they provide figures that add up you can query the costs listed, investigate their reasonableness or haggle with them. I disagree with you though. As I said, the band didn't perform, the reason is pretty immaterial from the perspective of any other parties, they are the ones that suffered a loss due to non-performance. The loss the band suffered was not part of the contract.


----------



## mathepac (26 Jan 2008)

NikNox said:


> They did not perform..



Precisely. As others have said, they / you did not do what they / you were contractually obliged to do,  the reason (or excuse) they / you did not perform is totally irrelevant.  Therefore the other party to the written / oral contract(s) is seeking redress.

Legal advice urgently needed.

Are some or all of the band members legally minors, is this why you signed on their behalf? Maybe you said but I must have missed it.


----------



## NikNox (26 Jan 2008)

mathepac said:


> Precisely. As others have said, they / you did not do what they / you were contractually obliged to do, the reason (or excuse) they / you did not perform is totally irrelevant. Therefore the other party to the written / oral contract(s) is seeking redress.
> 
> Legal advice urgently needed.
> 
> Are some or all of the band members legally minors, is this why you signed on their behalf? Maybe you said but I must have missed it.


 
I am going to see a Solicitor next week.  None of the band are minors, all are either working full time or full time students, and live within a 40 mile radius of each other.  Reason I signed the contract was purely because I was being hassled by the Agent to send it (fairly enough) back to them.  They had emailed it to me, so I printed it off and signed it and sent it to them.  It was for quickness really.  I am one of the band member's mother, and I was running their Myspace, email etc., in an unofficial manner.  Teenagers are notoriously bad at organising things, especially boys, so I took it upon myself to help them out.


----------



## NikNox (27 Jan 2008)

so-crates said:


> Maybe it might be worth considering negotiating a settlement with the Agent? As you said
> 
> so in other words you are acknowledging that the other party was put out by this. I think it wouldn't be unreasonable to approach them with an offer of partial compo on this basis. It may also be more cost-effective for both parties.
> Firstly though, it may be worth asking them to elaborate on "costs incurred", after all, they are asking for a sum which is more than three times what they valued the bands performance at so it is perfectly reasonable for you to query how they arrived at the sum they believe their due. I would ask for a detailed list of the costs incurred. If they refuse to provide then it is reasonable to query the validity of their claim. If they provide figures that add up you can query the costs listed, investigate their reasonableness or haggle with them. I disagree with you though. As I said, the band didn't perform, the reason is pretty immaterial from the perspective of any other parties, they are the ones that suffered a loss due to non-performance. The loss the band suffered was not part of the contract.


 
Of course the other party was put out by this.  I have never said otherwise and fully acknowledge that.  That is why I spent the entire morning of the performance phoning every guitarist I know to try and get a replacement.  I was trying to come up with all sorts of scenarios, like the band playing an acoustic set for instance, which they themselves didn't think was possible because (a) they can only perform 2 or 3 of their set acoustically and (b) they felt that £300 for a half hour (max) performance would not be a fair price for the Venue to pay and they felt that a lesser fee would not cover their expenses.  I even tried to persuade my son's father to play drums and my son to play bass, but, again, not feasible.  It was a day of complete and utter stress, and the decision to cancel was not taken lightly at all.

I will contact the Agent though I think to find out where this £1000 has come from, because I do think that is completely unreasonable.  And, surely they have Insurance for this kind of thing.  I would of course expect an Agent to make money out of booking a band, but £700? It is a large sum, and I'm interested to see how they justify that.

But, as I have said, I will be going to see a Solicitor next week, just to get things straight from a legal point of view.


----------



## Harlequin (27 Jan 2008)

Why are you being held accountable for this money? Do the band not take any responsibility for it?


----------



## mathepac (27 Jan 2008)

Harlequin said:


> Why are you being held accountable for this money? Do the band not take any responsibility for it?



The contract is between the Agent (OP) and the Engager, so the Engager is suing the Agent for non-performance, loss, damages, costs, etc.


----------



## NikNox (27 Jan 2008)

mathepac said:


> The contract is between the Agent (OP) and the Engager, so the Engager is suing the Agent for non-performance, loss, damages, costs, etc.


 
I am not the Agent.  My son's band is the Act, and the Contract is between the Act and the Agent, although the Engager is mentioned in it.  The Act cancelled due to illness of one of the members.  

The reason the band themselves are not being sued is because I signed the Contract, for quickness more than anything because it was emailed to me as an attachment.  I printed it off, signed it and sent it back because the Agent was in a hurry for it.  If it had had to be signed by all the members of the band it would have taken an age because they all live in different areas of the county, one 40 miles away.


----------



## mathepac (27 Jan 2008)

NikNox said:


> ...  Teenagers are notoriously bad at organising things, especially boys, so I took it upon myself to help them out.



Ahem, ahem (polite cough).


----------



## NikNox (27 Jan 2008)

Harlequin said:


> Why are you being held accountable for this money? Do the band not take any responsibility for it?


 
Because I signed the contract.  However, I spoke last night to the band member who was ill, and he has agreed to cover any Solicitors costs (mind you, I told him he would have to!), and if we do end up going to Court and have to pay an amount, he will pay that too.  I personally will not be out of pocket, which is good, but I do feel that the Agent is being harsh here.  When I spoke to Citizens Advice they couldn't see that the Agent had much of a case at all, but advised I seek legal advice.


----------



## NikNox (27 Jan 2008)

mathepac said:


> Ahem, ahem (polite cough).


 
Sorry, but they are! Well, mine is anyway.  His head is too full of music and girls to be worrying about the real world! Adult life will start soon enough!


----------



## Harlequin (28 Jan 2008)

NikNox said:


> Because I signed the contract. However, I spoke last night to the band member who was ill, and he has agreed to cover any Solicitors costs (mind you, I told him he would have to!), and if we do end up going to Court and have to pay an amount, he will pay that too. I personally will not be out of pocket, which is good, but I do feel that the Agent is being harsh here. When I spoke to Citizens Advice they couldn't see that the Agent had much of a case at all, but advised I seek legal advice.


 
Well, that's something. It doesn't seem fair that they would let you swing for something that was their fault.


----------



## NikNox (28 Jan 2008)

Harlequin said:


> Well, that's something. It doesn't seem fair that they would let you swing for something that was their fault.


 
It is, but my son always said that he wouldn't expect me to cover any costs anyway so I knew the actual payment, if any, wouldn't be down to me.  But, it's that word, 'fault'.  The way I see it, it is because the band member was ill that the gig was cancelled.  However, no-one was at fault as such because illness cannot be helped.  He wasn't 'skiving', he was genuinely ill.  As I have pointed out to the Court, it was an unforseen circumstance, beyond anyone's control, and therefore compensation, especially of such a large amount, is harsh.


----------



## csirl (28 Jan 2008)

The lesson to be learnt from this is that if the band are going to perform for money on a regular basis, then they need to have a back-up plan in place in case of things like illness of a band member, equipment failure etc. 



> I even tried to persuade my son's father to play drums and my son to play bass, but, again, not feasible.


----------



## NikNox (28 Jan 2008)

csirl said:


> The lesson to be learnt from this is that if the band are going to perform for money on a regular basis, then they need to have a back-up plan in place in case of things like illness of a band member, equipment failure etc.


 
It's not quite that easy though is it? To do that they would have to have another person regularly attending practices to learn the songs, almost like an understudy, which doesn't happen with bands realistically.  It's the first time they had been booked by an Agent, and the most money they had ever been offered, so they were extremely keen to do the gig.  

After all, even the big superstars cancel performances and tours due to illness, and they don't have replacements or back up plans!


----------



## so-crates (28 Jan 2008)

Quick question... have your son's band ever been in a similar situation themselves where they have had no choice but to cancel and were dealing with the Engager (Venue) directly? If so, how has that been handled in terms of recompense? Do they have any friends who have been booked through agents previously and had similar problems? It might be worth getting them to check that out as there may be some useful pointers for this. As you say these things happen so there must be other people out there who have had similar problems.


----------



## NikNox (28 Jan 2008)

so-crates said:


> Quick question... have your son's band ever been in a similar situation themselves where they have had no choice but to cancel and were dealing with the Engager (Venue) directly? If so, how has that been handled in terms of recompense? Do they have any friends who have been booked through agents previously and had similar problems? It might be worth getting them to check that out as there may be some useful pointers for this. As you say these things happen so there must be other people out there who have had similar problems.


 
They've cancelled gigs at short notice before, for varying reasons, and have never had any problems.  As you say, it happens.  To be honest, this is the only time they have been booked by an Agent, and most of their friends who are in bands haven't, so it's not easy to compare.  Of interest, the gigs they've had to cancel before have been gigs that have sold tickets.  This was a private party, no tickets sold, for 50 people in a Working Mans Club.  Citizens Advice said it would be good to know if the party still went ahead, but I can't seem to find out.  It's the first time I have ever heard of a band being sued for not performing, let alone for a genuine reason.


----------



## NikNox (28 Jan 2008)

I just found this, from a Google Search.  It's part of a Contract written between a Band and a Purchaser, which I guess must be the Venue.  Anyway, maybe the Agent in my case should adopt this clause for their future contracts, seeing as there is nothing in their contract about cancellation by the Act whatsoever!

Cancellation - The Purchaser and the Band agree that this contract is not subject to cancellation unless both parties have agreed to such cancellation in writing.  The agreement of the Band to perform is subject to detention by sickness, accidents, riots, strikes, epidemics, acts of God, or any other legitimate condition beyond control of the Band. If this occurs deposits shall be returned in full to Purchaser.


----------



## csirl (28 Jan 2008)

This band really has to grow up and start dealing with things. Once you start charging for your services, you have obligations - its no longer a bunch of kids just messing around. 

Did you see the recent BBC Watchdog programme about a DJ who kept on no-showing when booked? Did you see the hurt it caused those people who were left without a DJ?


----------



## NikNox (28 Jan 2008)

csirl said:


> This band really has to grow up and start dealing with things. Once you start charging for your services, you have obligations - its no longer a bunch of kids just messing around.
> 
> Did you see the recent BBC Watchdog programme about a DJ who kept on no-showing when booked? Did you see the hurt it caused those people who were left without a DJ?


 
Erm, I think that's a bit much to be honest.  Firstly, they have never been paid much for gigs £20-£30 at most, the majority of them unpaid because they enjoy it so much.  They weren't 'charging' £300 for this performance, the Agent offered it.  Would you say no?? I think not! They had been spotted by the Agent following a regional win in the Live & Unsigned South Coast Idol Competition, and the Agent approached them months ago asking them if they would ever be interested in gigs/wedding receptions etc.  Of course they said yes, because they want to gig as much as possible.  The performance on 8th December was the very first offer from the Agent, and the Agent offered the fee.

They appreciated that the Venue was let down, which is why I, and they, tried desperately to sort out an alternative before cancelling.  If they had simply just cancelled without trying then I would agree with you.  But, the gig WAS NOT cancelled lightly at all.  It was a very unfortunate situation, and one which they were deeply disappointed about themselves.  They have apologised to the Agent by phone, email and in writing.


----------



## NikNox (29 Jan 2008)

Update - I saw a Solicitor today. He read through the Contract and couldn't find anywhere that we are in breach of it, which is what I thought anyway.  He was surprised at the amount of money the Agent is trying to claim, and advised that I write and ask for a full and detailed written breakdown of the claim, with full documentation and receipts for the costs that the Agent says it has lost.  He said he wouldn't be at all surprised if the losses, if any, were considerably lower than the amount being claimed, and that if the Agent doesn't supply me with the details then the Court will certainly want to know how they have arrived at that figure and will want documented proof of it.  He said that I shouldn't worry too much about it because it would seem as if the Agent is just trying to get money out of me/the band, and that all 3 Judges I would be likely to meet in the Court (depending on the day) are extremely fair and he felt would be completely sympathetic to the band's situation.  He agreed with me that illness is an unforseen circumstance and that there is certainly nothing in the contract which determines what will happen if the Act cancels the performance, and said that the Agent should have insurance to cover such things anyway.  Also, because it was a private party, with no tickets sold, the chances are the Venue managed to find a disco or something else for their entertainment.  He said it would be good to find out from the Venue what, if anything, THEY did once the band had cancelled, and if they are indeed suing the Agent.  

He said I do not need legal representation in Court at all, and would not be responsible for any costs either way as it's Small Claims.

I feel much better from seeing him, and he has basically reiterated what I already thought.


----------



## NikNox (6 Feb 2008)

Here's an update, for anyone who has been following/advising in this thread.

I wrote to the Agent, asking them for a full account of their costing for the £1000 claimed, with documentation as proof.  Today I got a letter, outlining the following costs:-

Employed staff on the day £200, Loss of Profit £250, Excess Phone Charge £10, Contract Costs £25, Post £1, Loss of next year's income @ 10% £550, Unnecessary use of Directors £150, Damaged reputation at 10% of the sub total £118.60, grand total £1532.91.

What a load of rubbish!! The only thing I would see as reasonable is the loss of profit at £250.  They have said that the Venue have been valued customers and regularly used the Agents, and that last year the Agent profitted £5,500.00 from the Venue.  Because the band cancelled the performance, the Venue have now cancelled their contract with the Agent, and therefore the Agent is suing us for 10% of what they predict they would earn from that Venue this year.  How ludicrous is that? If they had such a profitable and solid relationship with the Venue, I find it hard to accept that the Venue cancelled the Agent's services SOLELY on the band cancelling due to someone being ill!

I have asked for documentary proof to be send of all of their costs, including accounts which show the profit from the Venue from last year, a copy of their phone bill, their staff costs, postage costs and contract costs (incidentally, the contract was sent via email as an attachment, which I had to print off and send back to them!!).  As for the 'Unnecessary use of Directors', well that could mean anything I guess, so I've asked for clarification of that too.

In their letter they have said that they are going to contact agencies across the South of the UK and London to inform them about the band saying that the band are unreliable and lack conviction, and have said that as a consequence no-one will book them.  That is defamation of character, and I have drafted a reply to them which includes a statement from me to that effect.

When I saw the Solicitor, he told me that the only thing he could see that the court 'may' say we have to pay is the recovery of their loss of profit, whatever that was (he was the one who advised me to get a breakdown).  They have stated quite clearly that it was £250, and we would be happy to pay that in full settlement.  However, they have indicated in their letter that they will be seeking the full amount they have claimed.

It's actually all quite laughable really, so I must see the funny side to get me through!

Comments please!


----------



## JoeB (7 Feb 2008)

1,186 + 118.60 doesn't add up to 1,532.91 (should be 1,304.60)

They have picked a ridiculous and arbitrary amount for 'damage to reputation'

Make sure you mention in court that they have threatened to destroy your bands reputation and that that is their expressed goal.

Having said that I think the Act have responsibility.. they can't go around cancelling gigs. It doesn't matter what the reasons are unless they are excellent, i.e involved in an armed bank robbery, crashed into by a large truck etc.. sickness is ok, as you say some large superstars cancel gigs due to 'tiredness' but I imagine compensation is paid in those cases (and in the case of most, if not all, cancellations).

The band probably need insurance in the future in case they fail again to live up to their obligations.


----------



## NikNox (7 Feb 2008)

JoeBallantin said:


> 1,186 + 118.60 doesn't add up to 1,532.91 (should be 1,304.60)
> 
> They have picked a ridiculous and arbitrary amount for 'damage to reputation'
> 
> ...


 
Well, that was the first time they had ever been booked through an Agent, and I can tell you they will never do it again!! They get enough gigs without having to sign contracts.  And of course they have responsibility, no-one is disputing that and I think the Agent should accept an offer of £250 as that is what he quotes as being his loss of profit.  We do not see that as unreasonable.  The rest, however, is a joke and none of it is backed up with any proof or documentation.  He could be making it all up!!


----------



## NikNox (7 Feb 2008)

Oh yep, forgot to add that they have added VAT of £228.31 to their claim as well!


----------



## NikNox (7 Feb 2008)

I have sent a rather long letter to the Agents today, asking them to provide supporting documentation for their 'claim'.  I have also sent a copy of their letter, with their threat of defamating the band, to the Court.  I am hoping that once they realise they have dropped themselves in it, they might drop the claim altogether.  The letter as a whole is very pointed at the band, constantly saying that they are unreliable and lack conviction.  If they had simply cancelled, or not turned up, then yes, those comments would be justified, but they cancelled because someone was ill, and only after extensive and exhausted efforts to find a replacement.

I wonder at the Agent's professionalism in all of this.  Seems they are resorting to schoolboy tactics!


----------



## Pulped (8 Feb 2008)

It seems to me somewhat bizarre that you are being sued by this agent. Leaving aside the merits of his case I don't see how they have come to the conclusion that any contract exists between you and the agent. The contract existed between the band and the agent, by signing it on behalf of your son you did not suddenly become a party to it.


----------



## so-crates (8 Feb 2008)

Just out of curiosity NikNox, exactly how established a business is this Agent? I keep getting flashes of a DelBoy-esque character (sans charm) every time I read another post from you.
Sounds to me that everyone you've discussed this with (including solicitor and yourself) bar the Agent feels that while they may be due some compensation for loss of income they are not due the amount they have ... to be frank, in my opinion.... dreamt up.
One thing I am curious about (besides the Unnecessary Use of Directors you will have to let us know what THAT means, I have a quite active imagination) is the staff costs. Were the band expecting to meet with staff supplied by the Agent or is the Agent referring to himself? And the Director, is the Agent a Director of his own company? Or is it a larger concern?


----------



## so-crates (8 Feb 2008)

been thinking on this a bit further and presuming that his income from the venue last year was roughly per Act Profit (250) + Band Cost (300) you can guesstimate that the Agent may have booked ten acts there last year (22 if it refers to profit alone and assuming a similar profit on each Act), it would be interesting to contact the Venue and find out firstly how many acts they booked with him last year, confirm that there was a long-term contract (not just act to act) between the Venue and the Agent and confirm that is was cancelled as a direct result of this (and not as a result of continuing issues). In other words independently verify his claims, preferably in writing. 
My other thought is what exactly is with the VAT? I am not terribly au fait with the arcane elements of value added tax but it seems odd to me that he is attempting to charge you VAT on this at all! Firstly if he is then surely he has to pass that on to Inland Revenue? And what exactly constitutes the goods or services supplied? I mean based on this he is basically paying Revenue, VAT collected, on supplying a reputation to be damaged (a little over £20 to HMRC)..... maybe I am missing the point.
Oh and I entirely agree with Joe Ballantin on the damages to reputation. *If* their reputation has been damaged then £100 is surely not sufficient. Besides why would damage to their reputation bear any relation to "costs" incurred?


----------



## Allen (8 Feb 2008)

I can't see what clause in the contract is supposed to have been broken.  Has the agent been asked this?

Any proper contract should have covered non-performance, as in the contract extract googled above. Unless there is a specific reference to penalty, I would think there should be no penalty payable where the non-performance was caused by circumstances beyond the control of the Act.

I would not be inclined to make any offer, before the court case, particularly as it is the small claims court, but I am not a lawyer.


----------



## Hasslehoff (8 Feb 2008)

Was there an offer? , yes by the venue
Was it accepted? , yes by the band either in wiring or orally
Was there consideration , yes they offered money and in exchange you offered the services of a band ?
Valid contract is now in place and one which is known as a bilateral agreement in that you agree to supply a band and they agree to pay you a sum of money.

So now we have a valid contract , offer, acceptance and consideration so the problem occurs when one party fails to meeting their promise of the contract. That is you fail to turn up and fulfil you side or your promise to the other party. Well that is a clear breach or as we say a fundamental breach "A _fundamental breach _is a breach so fundamental that it permits the aggrieved party (booking agent) to terminate performance of the contract, in addition to entitling that party to sue for damages against the other party (you).
So lets do away with all the mitigating circumstances and my aunty worked in a solicitors office and the agreement did not include a get out clause or was written on a slate and it was not my signature it was a X. You failed in your promise and because of that the other party suffered loss. If you go to court you will lose all day long on this so I suggest that you offer €300 or so or offer a freebie and this time turn up.


----------



## so-crates (8 Feb 2008)

In fairness to the OP Hasselhoff, she has accepted that the contract exists (between the band and the agent, the agent seems to have a separate contract with the venue to which the band was to be supplied by the agent) and conferred an obligation on the band and she accepts that it is reasonable for the agent to seek recompense for the breach of contract, she has stated as much. 
Her concern is now with the amount and the reasonableness of what the agent is suing for. It is perfectly reasonable for her to query the amount the agent claims is due him for non-performance. 
I do like your suggestion of a freebie performance though (and if the agent would accept it I'll bet she would be too!).


----------



## NikNox (8 Feb 2008)

Hasslehoff said:


> Was there an offer? , yes by the venue
> Was it accepted? , yes by the band either in wiring or orally
> Was there consideration , yes they offered money and in exchange you offered the services of a band ?
> Valid contract is now in place and one which is known as a bilateral agreement in that you agree to supply a band and they agree to pay you a sum of money.
> ...


 
As So-Crates has so aptly pointed out, I am well past the point of querying the contents of the contract, and fully accept that services for which that contract was bound, were not delivered.  I have never disputed that, apart from momentarily when I thought that because I had never received a signed copy from them it may be null and void.  I now know different.  Anyway, the band failed in their promise because of illness, not because they didn't turn up or some other unviable reason, unforseen and unfortunate.  I accept that the Agent feels they deserve recompense, and when I spoke to my Solicitor (not my step-mother, but one I saw last week) he firstly could not see a breach of contract, but said that the Court 'may' ask for the Agent's lost profit to be recompensed, which the Agent states is £250.  He also advised that I ask the Agent for full supporting documentation of his claim.  I did so, and the Agent provided figures, with no supporting documentation at all, plus a statement that he feels 'obliged' to slander the band to all his agency associates in the Southwest of the UK and London, and said 'the likelihood is that no-one will ever use you because you are unreliable and lack conviction'.  Now what does that say about the Agent?  Hmmm, not much in my opinion.  I do not dispute the loss of profit sum, it would deem reasonable to me and I don't see any problems with the band paying it.  However, the Agent has also stated that he will only be willing to drop the Court case if a 'reasonable' offer is made, after harping on about how he could have been suing for 10 times as much as he has done (at total of £1500), so I doubt £250 will be enough for him.  He is going to have to prove, with paperwork, the rest of his ridiculous claim for even the Judge to take him seriously.  I actually hope this does go to Court now, because his letter is a joke, is rude and derogatory and he is openly admitting he is feeling obliged to slander the band.  To me, he's dropped himself right in it with that one paragraph, and shows himself to be operating a Micky Mouse outfit which obviously lacks professionalism.  I am sure that an educated Judge will see through it, and will most likely through the case out.  I have remained polite, apologetic, and factual throughout my communications with the Agent (although it has been tempting to be as rude as he has been!), and have fought the corner of a band who were very excited about the performance but had to cancel because a member was ill.  That member also has the medical certification to prove it.  They are far from unreliable and lacking in conviction, and I think that the chances now of them offering a freebie through this Agent are zilch!


----------



## NikNox (8 Feb 2008)

Allen said:


> I can't see what clause in the contract is supposed to have been broken. Has the agent been asked this?
> 
> Any proper contract should have covered non-performance, as in the contract extract googled above. Unless there is a specific reference to penalty, I would think there should be no penalty payable where the non-performance was caused by circumstances beyond the control of the Act.
> 
> I would not be inclined to make any offer, before the court case, particularly as it is the small claims court, but I am not a lawyer.


 
Neither can I Allen, and nor could my Solicitor.  There is no clause to cover cancellation by the band, only the Engager (Venue), and as my Solicitor pointed out, it's a strange contract because it actually states in Clause 1 that the Contract is solely between the Act and the Agent, yet the Engager has clauses!!! Anyway, my Solicitor did think that a Judge would be sympathetic to the plight of the band, particularly as we spent 4 hours on the morning of the performance trying to sort out alternatives so they could still perform.  But, he did say the Judge 'may' award the Agent his profit loss .. £250.  I felt compelled to write back to the Agent, not only because I need to reiterate my first request of supporting documentation for his claim, which he did not send, but also because I wanted to point out to him that his statement about slandering the band was indeed that, defamatory and slanderous/libellous, in the hope that it might make him think a little bit about how he's approaching us.  I don't think the Judge will be too impressed at his school boy tactics! Anyway, I haven't offered anything, merely asked for sight of his accounts between himself and the Venue, his phone bill, staffing costs, and an explanation of what the Directors were unnecessarily used for .. poor things (hope it didn't hurt!).


----------



## NikNox (8 Feb 2008)

so-crates said:


> Just out of curiosity NikNox, exactly how established a business is this Agent? I keep getting flashes of a DelBoy-esque character (sans charm) every time I read another post from you.
> Sounds to me that everyone you've discussed this with (including solicitor and yourself) bar the Agent feels that while they may be due some compensation for loss of income they are not due the amount they have ... to be frank, in my opinion.... dreamt up.
> One thing I am curious about (besides the Unnecessary Use of Directors you will have to let us know what THAT means, I have a quite active imagination) is the staff costs. Were the band expecting to meet with staff supplied by the Agent or is the Agent referring to himself? And the Director, is the Agent a Director of his own company? Or is it a larger concern?


 
Actually they seem quite established.  I've looked into them and they've been going for nearly 10 years.  I was therefore surprised to receive the letter I did from the Director of the Company, as it was derogatory throughout and rude, and contained that slanderous statement.  I would have thought anybody in the entertainment business would be aware of the Libel laws!  I too think they dreamt up the claim costs.  They certainly weren't sending any of their staff to the Venue on that day, so is it their own staff in their office they're claiming for!! The only people we spoke to on the day were another of the Directors, who I have always spoken to (didn't know he was a director actually), and a woman who spoke to my son's father, and was incredibly rude, and then to my son.  I too am absolutely itching to know what the 'Unnecessary Use of Directors' is too, and I too have all sorts flashing through my mind!! Did they have to use them as phone props? Or did they consider using them as replacement bass players? Or maybe they simply used them as sounding boards because we had annoyed them!!


----------



## NikNox (8 Feb 2008)

so-crates said:


> been thinking on this a bit further and presuming that his income from the venue last year was roughly per Act Profit (250) + Band Cost (300) you can guesstimate that the Agent may have booked ten acts there last year (22 if it refers to profit alone and assuming a similar profit on each Act), it would be interesting to contact the Venue and find out firstly how many acts they booked with him last year, confirm that there was a long-term contract (not just act to act) between the Venue and the Agent and confirm that is was cancelled as a direct result of this (and not as a result of continuing issues). In other words independently verify his claims, preferably in writing.
> My other thought is what exactly is with the VAT? I am not terribly au fait with the arcane elements of value added tax but it seems odd to me that he is attempting to charge you VAT on this at all! Firstly if he is then surely he has to pass that on to Inland Revenue? And what exactly constitutes the goods or services supplied? I mean based on this he is basically paying Revenue, VAT collected, on supplying a reputation to be damaged (a little over £20 to HMRC)..... maybe I am missing the point.
> Oh and I entirely agree with Joe Ballantin on the damages to reputation. *If* their reputation has been damaged then £100 is surely not sufficient. Besides why would damage to their reputation bear any relation to "costs" incurred?


 
I wondered too if this wasn't the tip of an iceberg between the Agent and the Venue, giving them a good excuse to cancel their contract with them.  In the letter, it was stated that the client was valuable to them and they had enjoyed a profitable relationship with them, until we 'lacked consideration for the client' and cancelled the gig.  The Agent has said that we made them in breach of their contract with the Venue, and because of that the Venue have cancelled their contract with them.  However, I pointed out in my reply that if they had enjoyed such a solid and profitable relationship, why did the Venue cancel their contract because of that single episode? It doesn't add up to be honest, and I have asked for sight of the letter (if there is one) from the Venue to the Agent cancelling the contract, along with the company accounts with that Venue.  They said that we made them look amateurish and as a result had damaged their reputation with the Venue, so I'm wondering if they could only put in a miniumal amount for that.  I also wondered about the VAT, and surely this isn't something you would charge VAT for??  I think that they know they can only realistically claim for their lost profit, but because it's only £250, they've put down all sorts of unsupported rubbish to 'bulk out' their claim.  I'm surprised we're not being asked to cough up for their cleaning staff that day too!! What made me laugh though was the postage cost.  I've only ever received one piece of posted mail from them, which was the letter I got the other day, and that was franked at 32p.  They are claiming £1! They're also charging £25 for the contract costs, which was sent to me as an email attachment which I printed off and sent back to them!! Perhaps I should consider my own counter-claim because I've spent far more than they have on postage and phone calls alone!!


----------



## NikNox (8 Feb 2008)

Pulped said:


> It seems to me somewhat bizarre that you are being sued by this agent. Leaving aside the merits of his case I don't see how they have come to the conclusion that any contract exists between you and the agent. The contract existed between the band and the agent, by signing it on behalf of your son you did not suddenly become a party to it.


 
Actually that's an interesting point.  None of them are minors, all 18.  I shall enquire.


----------



## NikNox (16 Feb 2008)

Another update, not very interesting, or maybe it is!! Anyway, haven't heard from the Agents since I wrote to them in the middle of last week.  And yesterday I had a letter from the Court saying that unless the Claimant (Agent) paid the Court fee and sent the Allocation Questionnaire back to them by 22nd February the case would be dismissed!  I wonder if my letter made them realise that their claim is not only unfair, but ridiculous, and that their defamatory comments about the band were indeed that, defamatory!

I wouldn't be surprised if they've bottled out!


----------



## NikNox (21 Feb 2008)

Another update.  I emailed the Agent today, asking them why I hadn't heard from them with proof of their claim.  This is the reply I received:-

Without Prejudice. 

Dear *****, 

Thank you of your email, because of your previous letter I have now employed my solicitor, He has made it clear that a breach of the contract  has been made, it is also correct for me to take this further and proceed to court. However, he does disagree with me trying to claim for loss of potential work.

In your letter, in reply to mine, you made no comment to the last paragraph of my letter.

Please answer this:

My claim to the court will be considerably less than the £1000.00  filed, because I cannot claim for 'possibles'.

Therefore the total breakdown will be for court costs, loss of revenue, that days' phone calls, solicitors' fees and extra staff time.

I will send you the breakdown for this if required. 

I now claim £604.00 including VAT

If you prefer to let the courts decide on this then please let me know and I will send you the relevant proof.

I will make it clear how I feel. We are in business to help people have a good time and I can't imagine you are having one, I certainly am not!
I took a hammering from our client over this, and the issues between us, and I have lost loads of money.
I have had a long discussion with my business partner after reading your letter, and I conclude that you and I should come to a sensible solution, so we can move on with better things and draw a line under this whole affair! 

If you think this is fair and we make and agreement, I will put a stop to the court proceedings.   


Waiting on your reply 


I have replied, requesting the proof of this claim and have also pointed out at this stage that my solicitor told me that a Judge 'may' award them their loss of profit which in their original costing was £250.00.  I also said that there was no decision as yet as to Court and settling in or out of it, as it was likely that the band would be ordered to pay far less than the amount the Agent is claiming!

Personally I don't think they've been to a Solicitor at all, and I can't see any Solicitor telling them they can claim VAT!!

Watch this space!


----------



## Complainer (21 Feb 2008)

Settle, for the sake of common sense - make an agreement and get it sorted.


----------



## NikNox (21 Feb 2008)

That's the plan, but not as much as they want.  There is a principle at stake here too.  I feel the band are being penalised far too much for something that wasn't anybody's fault - illness.  I would now like them to just say ... 'ok, pay £250 for our loss of profit' and be done with it, instead of their ridiculous figures for staff (who were employed on that day anyway), phone calls and VAT.  I will not be bullied into a corner!


----------



## NikNox (22 Feb 2008)

I give up!! The man is incredibly rude and obnoxious as proven by the email I received from him today:-

Without  Prejudice

Dear *****
As you have not had the decency to answer my question (last paragraph as requested ;last email)
and you are obviously showing any lack of decency, I will not respond any more to your requests (as you not mine)! 
I will see the person who signed the original contract, a copy of which I have in my possession, namely you, in court.

I am now holding  you totally responsible for all that has happened;  the court date is set for 14.00hrs on 8th May 2008.

My last email to you was to be friendly and understanding, but you have shown your true colours and I am sure the judge will see you as difficult to deal with and not so helpful as you pretended to be.   

If you  decide to not turn up at court, you will be held responsible through abscence and I will automatically be granted my claim.

Managing Director.


I just cannot believe his rudeness, and all the emails he has sent me will be printed off for the Court to see.  Horrible little man.  All I have requested is proof of his claim.  Fair enough??  And now he is saying that because I haven't agreed to his last statement (to agree to settle at £600 out of court) he will not respond to me or my requests further and will see me in Court.  My Solicitor told me that he HAS to provide proof of his costings to the Court and that I have a right to request it, and when I replied to him today I explained that I hadn't agreed to settle out of Court at £600 because I have not received proof of his claim, and I need that evidence to make an informed decision.  Arrrgggghhhhh!!! He's seriously doing my head in now, so I said in my reply that the band would be willing to settle at £250 being the sum for their loss of profit.  

What's people's opinions on this chap? He's sailing close to the wind with his remarks about me I think, and I don't think the Court will look favourably on that, along with his statement that he was going to slander the band.  

Please let me know what you think - much appreciated.


----------



## Complainer (22 Feb 2008)

It's not personal. It's business. Put your personal feelings to one side, and make a sensible business decision. Settle.


----------



## NikNox (22 Feb 2008)

Complainer said:


> It's not personal. It's business. Put your personal feelings to one side, and make a sensible business decision. Settle.


 
Well it doesn't feel impersonal now, because he has been so rude, which there is absolutely no reason for.  And, I have offered to settle at £250, their loss of profit, which I think is fair enough.  This saga is well out of proportion anyway.  I mean the band cancelled because someone was too ill to perform!! It's not as if they just didn't bother to turn up and didn't tell anyone is it.  OK, the Agent has lost out because of it, but that happens and couldn't be helped and to be treated the way this man is treating me/them is, quite frankly, despicable.  I wonder how he treats other Acts on his books??  His attitude stinks and he is NOT behaving in a business like fashion at all.


----------



## so-crates (22 Feb 2008)

Business is personal, we invest quite a considerable proportion of our lives in "business" and as a director of his company it probably is more so for him. But that doesn't mean that one has to respond emotionally, always worth your while taking a deep breath on these things and ignore his behaviour, address it by ignoring it not by responding, it detracts from the actual issue at hand and is only trying to needle you into an inflamatory response (intentionally or otherwise). 
Personally I think by the looks of it he is trying to bluster you into paying out of court what he wants by engaging your emotions in this, you have offered him what you believe to be fair and he disagrees but that is his prerogative. Be guided by your solicitor on this, you have consulted him for his knowledge and expertise, if he had reason to believe that the amount claimed was valid it would be remiss of him not to tell you to settle. 
One thought, I don't know how the court system works in the UK with regards to this, but independently confirm the date, etc and it would also be no harm to show up on the day in court ready to pay the £250 as well as with the details of all communication. In the interim, re-iterate your settlement offer and continue to request the details of the claim... VAT and all...

Other than that best of luck, I really do hope it works out, well before May!


----------



## mercman (23 Feb 2008)

One major point. When you go to court it is the responsibility of the judge to determine and adjudicate on the situation. At that stage it doesn't make a huge difference on opinions or solicitors quoting you song and verse about the law. The judge will decide who is right and wrong. Try making an offer one more time in writing, which if it goes to Court you will be able to demonstrate your willingness to have the matter settled. Finally, I think the band should get a new manager before you become dizzy from this entire fiasco.


----------



## NikNox (23 Feb 2008)

mercman said:


> One major point. When you go to court it is the responsibility of the judge to determine and adjudicate on the situation. At that stage it doesn't make a huge difference on opinions or solicitors quoting you song and verse about the law. The judge will decide who is right and wrong. Try making an offer one more time in writing, which if it goes to Court you will be able to demonstrate your willingness to have the matter settled. Finally, I think the band should get a new manager before you become dizzy from this entire fiasco.


 
I will write once more with the offer of £250, and as so-crates pointed out I will also request proof of his costings too for the whole of the claim.  He needs to understand that I do have a right to see why he is claiming what he is claiming.  

Of note, I am not the band's manager, merely one member's mother who has helped them out in an unofficial capacity to get gigs etc., and run their MySpace, mainly because they formed when they were all only 16 (they are now 18).  The only reason I signed the contract was because it was sent to the band's 'team' email address as an attachment after they phoned asking for it to be sent back to them the same day.  My son was not in, the other band members live within a 20 and 30 mile radius, so I printed it off, signed it and bunged it in the post literally half an hour later.  The band have agreed that it is their problem, and I have told the Agent that they are willing go to Court rather than me, but as you can see from his email to me he is not accepting that.  So, in effect, the only thing I did was sign the contract, which I realise makes me liable in that sense, but it was the band that made the decision to cancel the gig (after we had collectively tried to organise something else) and not me personally.


----------



## NikNox (25 Feb 2008)

Just to let everyone know that the Agents have accepted an offer of £250.  Thank goodness.  I won't be paying it, the band will so I'm just glad to have the whole stupid thing over and done with.

Thanks to everyone who has been so helpful with their advice.


----------



## so-crates (25 Feb 2008)

Well done NikNox!! Congrats on a good result, seems fair all around. Reason found a way through at last (granted you had to smooth it down quite a bit for him!)
Best of luck to the band in their next gig, hope it is less "fun" 

P.S. Don't forget to get a "VAT" receipt


----------



## NikNox (26 Feb 2008)

so-crates said:


> Well done NikNox!! Congrats on a good result, seems fair all around. Reason found a way through at last (granted you had to smooth it down quite a bit for him!)
> Best of luck to the band in their next gig, hope it is less "fun"
> 
> P.S. Don't forget to get a "VAT" receipt


 
Cheers, to say I'm relieved is an understatement! I'm surprised he accepted it to be honest, especially after all the horrible emails etc., but tis done and dusted now.  I was contemplating paying for advice (last Solicitor was a freebie, 20 minute 'surgery'), so add that to the sum that they could have been awarded in Court and I think £250 is the lowest outcome, and we would have had to pay Court fees and their Solicitor's fees as well.  I feel kind of 'gloaty' too, as it's cost them £130 to put the claim through the Courts!!! So, in essence they've only gained £120! 

Lessons have been learned too.  Why does it always have to be the hard way!


----------



## DavyJones (26 Feb 2008)

Hi NikNox, Thanks for the entertainment, better than any soap!! have been following for a while, glad it all worked out ok for you, hope your boy is grateful!


----------



## mercman (27 Feb 2008)

NikNox - on last thing. Make sure you get a letter of full and final settlement from this Agent as he could simply take the £250 and carry on his merry go round.


----------



## NikNox (27 Feb 2008)

DavyJones said:


> Hi NikNox, Thanks for the entertainment, better than any soap!! have been following for a while, glad it all worked out ok for you, hope your boy is grateful!


 
Glad to have been of service, of sorts   He is grateful, in fact they all are and have agreed to chip in £50 each rather than expect the bass player to fork it all out himself (which he did agree to do).  I'm glad it worked out too .. it's been a nightmare!


----------



## NikNox (27 Feb 2008)

mercman said:


> NikNox - on last thing. Make sure you get a letter of full and final settlement from this Agent as he could simply take the £250 and carry on his merry go round.


 
Thanks, hadn't actually thought of that! I will await their invoice and see what they put on that and take it from there.  I would imagine if they invoice the band for 'compensation for loss of profit for ......' then that would be ok, but good thinking!


----------

