Compensation Claim against me

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.
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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!).
 
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?
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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!!
 
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?
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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!!
 
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.
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Actually that's an interesting point. None of them are minors, all 18. I shall enquire.
 
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!
 
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!
 
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!
 
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.
 
It's not personal. It's business. Put your personal feelings to one side, and make a sensible business decision. Settle.
 
Complainer said:
It's not personal. It's business. Put your personal feelings to one side, and make a sensible business decision. Settle.
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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.
 
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!
 
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.
 
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.
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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.
 
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.
 
:) 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" :D

P.S. Don't forget to get a "VAT" receipt ;)
 
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" :D

P.S. Don't forget to get a "VAT" receipt ;)
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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! :)
 
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!
 
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.
 
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!
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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!
 
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