Wedding Supplier - COVID-19

[Rorrryyy]

Hello Guys,

I am new to the forum, we are having a real issue with a business. Possibly made a little worse with emotion, as this should be for our upcoming wedding mid-June. Obviously at this point it would seem extremely unlikely that a wedding could go ahead mid-June - our venue and all but one of our suppliers have agreed this much. All having agreed to postpone until a later date, at no cost penalty to us.

However, our food supplier have informed us that they do no interpret the CMA guidance the same way that we do. They have offered to move us to another date in 2020 without additional cost; however, there is not a Saturday, which could tie in with our venue, not to even mention all our other suppliers. Therefore, all in all that is nothing more than a token gesture and they know that. Being reasonable, we said we would push our wedding to summer 2021 or even 2022 if that were what we needed to do, to find something that works for all suppliers. Ultimately, we have paid a premium for a Saturday in summer, so in our view it is only right to expect to receive this.

The particular supplier has said we would have to pay them another £3,000 on top of our £7,000 bill to do that; otherwise, we would have to forfeit our 50% deposit of £3,500 as per his contract. Now that just seems unfair to me, the wedding contract is going to be frustrated, as weddings will not be happening by mid-June. I honestly cannot see what actual costs he has incurred to date; we have only exchanged a few emails, selecting some items from a set menu!

I have responded saying our intention was absolute in attempts to work with them, to move to a date that works for all, however I am not having an over 40% penalty charge applied for costs that are not my problem. Said I would be looking to get advice, reporting to CMA. Then ultimately, Small Claims Court is where I envisage this will end up

We are decent people, who thought we were trying to do the right thing for the suppliers by trying to work with them to postpone rather than cancel. All we got back was an email quoting many legal terms, without an ounce of compassion or empathy.

Any advice on how to proceed would be a huge help!

[Rorrryyy]

Hello Guys,

Further to this - when I press ahead with the money claim online and CMA referral am I ok to concurrently share my situation all over social media and review sites, or would this jeopardise my claim in any way?

Again, any advice on how to proceed would be a huge help!

[Rorrryyy]

Celestine EXC so sorry for the unsolicited tag guys, I had seen you had given helpful advice on similar topics, so I hoped you can help me a little. I am a bit stuck at the moment, I cannot afford a solicitor, to respond to the businesses solicitor whilst I am unable to work. I suppose I just need someone to look objectively and advise where I go next.

Their solicitor states:
"You suggest you are going to file a claim against our client on Money Claims Online. We strongly suggest you seek independent legal advice and, in any event, direct you to your obligations under the Civil Procedure Rules. Should a claim be made against our client without you first doing so, the relevant application will be made to have the claim struck out and our costs of doing so will be claimed from you directly."

Is that correct, do I need to pay for legal advice before going through the Small Claims Court?

Our wedding food supplier has indeed now said that our wedding will not be able to go ahead. However rather than to work with us to find an alternative date, they have said our contract is now frustrated, further to that they are stating that the force majeure clause in their contract allows them to keep a huge chunk of our deposit money.

The supplier states:
"Upon reflection and taking your comments on board, it deeply saddens me that a wedding event on your chosen date as per our agreement is likely going to be impossible to provide.

The contract should therefore, by mutual agreement, be considered to be frustrated by the COVID-19 epidemic, such that termination under force majeure (Clause 6.5) is to take place. In accordance with the contract which you freely agreed to, and which contains no unfair clauses, we are entitled to deduct from the deposit paid, prior to the return of the balance thereof, costs associated and incurred (and unavoidably to be incurred) in connection with your booking. The CMA’s advice makes it clear that this is not unreasonable or unfair.

After taking advice from our accountant and legal team who both asserts as being reasonable to deduct, we propose to provide you with a partial refund of 28% of your deposit, that being £789.21 + VAT. To confirm, this offer is made as a gesture of goodwill and should be interpreted in any way whatsoever as an admission of liability, we simply want to achieve a fair resolution to the matter at hand.

I am sure you will agree that the above is both fair and reasonable. I will raise and send a cheque to the value of £947.05 by first class post. However, should you prefer the funds to be paid via BACS please send me you bank details to be settled by immediate return and certainly by no later than 4pm on 20 May 2020."

If they have these supposed costs to date (provided by the accountant), then why are they refusing to share them with us (I have asked them to provide 4 times), surely a reasonable request as they are proposing to keep £2,435.27 of our money, which is in fact 43% of the sub total for the whole event. I have asked genuinely, how do they arrive at such a figure as an on the day food supplier. It is my opinion; they have not provided anything of value, for the monies, they have been paid. Furthermore, they do not make any mention of what the deposit is for, neither in their invoice or contract. Their deposit is simply to hold the date. All line items on their invoice, are on the day delivery (food, staffing, transport etc). I struggle to see how any part of that invoice has been supplied to date. We have only exchanged a few emails and selected some items from a set menu?

I have attached the force majeure clause which they make reference to (suitably redacted I hope). I know we are emotional invested in the situation, so just looking for a little guidance. They have effectively given us the 3 options listed below, all of which treat us unfairly in my opinion.

1. Move to a date up to the end of this calendar year, this would effectively be a weekday in winter. Certainly not the premium Saturday in summer we had booked and paid for.

2. Move to a summer date in 2021, which a 40% surcharge applied to our invoice. Not sure how they can justify such an increase in price.

3. If we do not agree to either of the above, then we lose a huge chunk of our deposit, even though we have received nothing of value to date.

The overall implications of them keeping this money, will ultimately mean we can no longer get married, as we will not have any available funds to engage an alternative caterer.

Thanks in advance, for any guidance you can give me.

[Celestine]

Thanks for the tag, am now subscribed and will respond properly over the week end if that's ok as this requires proper consideration. My initial thought unfortunately is that if the original contract stipulated no refund of deposit, this is a significant hurdle to overcome and that asking them to justify what they've expended is not going to assist. I take issue with their alternative remedies however, why a 40% uplift? It feels like they are pushing you into having to accept cancelling and that is where I suspect their conduct may be unfair.

[Rorrryyy]

Thank you for offering to provide some guidance, I hugely appreciate any advice

Will you need to have a look at the original contract, invoice and our conversation since the discussions around covid began? I have all that, but not sure I could attach them to the post.

[Celestine]

How did you pay the deposit?
You can attach documents to your post but make sure you remove anything which identifies you or the supplier in this case.

[Rorrryyy]

The deposit was paid by bank transfer August 2019, as BACS or cheque were the only options.

No problem - I shall redact all the documents, hopefully tonight / tomorrow, then get those added to the thread. Thanks again for offering your guidance.

[pt2537]

Hi

This is an area ive had to deal with a fair amount recently concerning frustrated contracts. Plainly, at this stage due to a pandemic and emergency legislation that is in place, you cannot have a wedding unless you intend to have only 6 people present from only two different households a,d you get married in your garden, even then im not sure that would work.

Where a contract is found to be frustrated, both parties are released from their obligations under the contract and neither party may sue for breach.

In terms of losses these are decided by Law Reform (Frustrated Contracts) Act 1943.

If you look at s1(2) of LRFCA 1943, you will see that all monies due under the contract are no longer payable, and the monies paid are essentially recoverable. The trader may retain any costs expended so if for example he has to pay out £200 for a service or to buy goods, then he would be able to retain that £200 and refund you the rest.

s1(3) LRFCA does require you to pay for any valuable benefit conferred on you by the trader.

If they are relying on their terms to entitle them to claim more than they would otherwise be entitled to, id argue that such a term would be unfair contrary to the Consumer Rights Act 2015.

[Rorrryyy]

Hi pt2537

Yes that was how I understood it, however I am certainly no expert when it comes to contracts. As now they will only me to contact their solicitor, I don't want to say something which could be used against me.

I have received in the post today, a cheque for £947.05, even though I told them not to insult me with such a low offer of my funds back. If I was to accept this cheque (goodwill gesture as they call it), then they will still have £2,435.27 of our money, for providing absolutely nothing. They claim their force majeure clause in their contract allows this.

I am almost finished redacting our email correspondence, contract and invoice - I will upload them to the post once I am done, any guidance would be hugely appreciated.

[Rorrryyy]

Hi Guys,

I have attached the following to the post...

1. Redacted email correspondence, beginning 17 March as we started become seriously concerned about the impact of Covid-19 on our wedding. Inclusive of the latest email from their solicitor, Yesterday, 1 June. I have used red dashed lines to distinguish between each email. As you will see, there are quite a few of my emails which were never responded to.
2. Redacted contract, which shows the force majeure clause.
3. Redacted invoice, which shows our deposit payment.

I have received in the post today, a cheque for £947.05 - however, not sure if I was to cash this, does that mean I am accepting their refund (gesture of goodwill as they call it), as I strongly dispute them amount? After asking on several occasions for a breakdown of costs incurred to date, they are refusing to provide these, apparently this is confidential information provided by their accountant.


The defence being put forward by their solicitor, appears to centre around me at first agreeing to their 30% penalty charge being added to our bill. However, this was never formed into an agreement, and was before I became aware of the CMA guidance around frustrated contracts. I would argue that during a telephone conversation 17 March, I was essentially given the three options below...

1. Move our date to another date before 31 December 2020. After checking with our venue, they only had a handful of Tuesdays available in September / October which would tie in with the caterer. Keeping in mind we had paid for a premium date, a Saturday in summer. in any case as the contract cannot now be fulfilled, who in their right mind would agree to move a wedding for 100 people to anytime in 2020 right now.
2. Pay their 30% penalty for moving to a date after 31 December 2020
3. We would forfeit our deposit, as per the terms of the contract.

It is clear we have gone above and beyond to keep them as our supplier, our intention has always been to work with them to find an alternative date, as our original agreed date could now not go ahead - however they will only allow this if they are attaching a huge surcharge to our bill, profiteering from the awful situation which we all currently find ourselves.

Their allegation that I have tried to blackmail the supplier is laughable and a complete fabrication, all I have tried to get is what we have paid for. Nothing more, nothing less. Additionally, the solicitor speaking about my behaviour during telephone conversations, this cannot be deemed as anything other than another complete fabrication. Since learning of the CMA guidance, we have had one telephone conversation Friday 15 May - I left that phone call with the supplier saying they would be having another look at costs over the weekend, then coming back to me with something that would be nothing like the original penalty charge quoted. So, I was then a little surprised to get their email the following Monday, basically saying they will not work with us to find another date, and they will keep a huge chunk of our deposit money, as their contract allows.

Thanks again for offer of guidance on this matter. This is a highly emotive topic for me, so objective views are very much appreciated. The whole situation has caused further upset to my fiancé and I, we should be looking forward to our wedding in 18 days time, however we need to spend our time chasing a food supplier for money back, so that we can engage another caterer.

It remains my opinion that the supplier has provided nothing of value to date. We have exchanged email and selected some items from a set menu. They appear to now want to discharge themselves from the contract, using their force majeure clause to keep a large chunk of our money.

[pt2537]

Hi pt2537

Yes that was how I understood it, however I am certainly no expert when it comes to contracts. As now they will only me to contact their solicitor, I don't want to say something which could be used against me.

I have received in the post today, a cheque for £947.05, even though I told them not to insult me with such a low offer of my funds back. If I was to accept this cheque (goodwill gesture as they call it), then they will still have £2,435.27 of our money, for providing absolutely nothing. They claim their force majeure clause in their contract allows this.

I am almost finished redacting our email correspondence, contract and invoice - I will upload them to the post once I am done, any guidance would be hugely appreciated.

As far as i can see, when the contract is frustrated each party is released from their obligations, the contract is no more, the legislation i referred to above takes over. So their force majeure clause can be poked where the sun dont shine in my view. And of course if they wish to rely on it in such circumstances one could argue the term itself is an unfair term contrary to the Consumer Rights Act 2015.

Sadly however you may have to take them to court to get your money, and that will cost a fair amount to pursue

[Rorrryyy]

As far as i can see, when the contract is frustrated each party is released from their obligations, the contract is no more, the legislation i referred to above takes over. So their force majeure clause can be poked where the sun dont shine in my view. And of course if they wish to rely on it in such circumstances one could argue the term itself is an unfair term contrary to the Consumer Rights Act 2015.

Sadly however you may have to take them to court to get your money, and that will cost a fair amount to pursue

That is what I feared, our household income has taken quite a hit due to Covid-19. So spending a lot to recover the money would seem like a false economy. Their solicitor appears to be suggesting that I must get legal advice before making a claim through the Small Claims Court, is this correct?

It becomes all a little bit daunting having to deal with a solicitor, me having pretty much zero legal knowledge. I have tried advice from Citizens Advice, but this pretty much amounted to ask the supplier for their complaints procedure.

What would you advise I do with the cheque they have sent me. If I was to cash this, is this then me accepting their partial refund?

[Celestine]

To issue a claim against them need not be totally impossible. The filing fee is £105 for claims between £1500-£3000.
There are many complexities to accepting cheques like this. I believe you would need to write back to them BEFORE cashing stating that it is only a partial settlement and you will pursue the remainder through the court. Also worth knowing that their solicitors cannot add legal costs to the claim as it is small claims track. You do not HAVE to seek legal advice before issuing a claim but you must follow certain pre-action protocols which are relatively simple.
pt2537 will advise on partial settlements hopefully. Feel free to share a draft with us.

[Rorrryyy]

Sure, I will await some advice before taking my next steps. I did tell them not to send it, as I did not accept the amount, they have obviously just decided to ignore me and send it anyway, with the below statement with it...

"Please find attached herewith, cheque in the sum of £947.05 as a gesture of goodwill made without any admission of liability and in full and final settlement."

When you have some free time, if you could please have a look over the documents I have attached. An objective view would be greatly appreciated. For me right now, it feels almost like we have been stolen from. But like I say, I appreciate I am very much emotionally invested, as this was for something as personal as a wedding day.

[pt2537]

To issue a claim against them need not be totally impossible. The filing fee is £105 for claims between £1500-£3000.
There are many complexities to accepting cheques like this. I believe you would need to write back to them BEFORE cashing stating that it is only a partial settlement and you will pursue the remainder through the court. Also worth knowing that their solicitors cannot add legal costs to the claim as it is small claims track. You do not HAVE to seek legal advice before issuing a claim but you must follow certain pre-action protocols which are relatively simple.
pt2537 will advise on partial settlements hopefully. Feel free to share a draft with us.

Morning

Absolutely a claim is not an impossibility, but its not guaranteed to be a walk in the park either.

Firstly, i wouldnt bank the cheque, if they have offered it as a full and final settlement its safer to say no thanks, it removes the arguments that they could run on accord and satisfaction etc. if you were planning on cashing the cheque you would need to seek clarification from the other side that you would do so as a partial settlement only, and if they dis agree they should confirm. I wouldnt go down this route personally but thats just me.

On the question of costs you must be aware of the rules on unreasonable conduct, their solicitors will be aware of these rules without doubt. Under rule 27.14(2)(g) the court has the power to make an order for costs if the court determines that a party has behaved unreasonably. Now its a high bar they have to get over, but its important that you make sure you read the Court rules and follow them so that they cannot get you on a technicality.

The best advice i can give you, is to sit down and write out your case, as if you were explaining it to a new person, do so in paragraphs, and keep to the facts rather than opinion. opinions always get you into trouble.

Once you have done this you will have the outline of your particulars of claim, they will need editing and puttting into numbered paragraphs, and the law will need inserting etc, but i always find it easier to start that way.

Their comments on their force majeure clause is simply nonsense in my view, a contract doesnt trump the statute, the statute takes precedence.

Celestine is right, you would need to send a protocol letter under the Pre Action Protocol http://www.justice.gov.uk/courts/pro...action_conduct before you start a court claim

If you have any questions please ask away, happy to help