Goosedale WEDDING VENUE REFUSING REFUND *** Settled by Tomlin Order***

[BankFodder]

I've just scanned this thread briefly. They are not proceeding with the contract because of laws which have been imposed as a result of the virus crisis.

If this is correct then this amounts to a frustrated contract. Frustrated by supervening illegality and in principle the contract should be set aside and  you should be entitled to recover all of your money.

Please post up the particulars of claim – keep it very short. No need to send any further details. However it should mention that the contract is frustrated.

 

post it up here before you click it off

[BankFodder]

I've only started to look at this. My site team colleague @Andyorch has been dealing with it and is familiar with it. Best to wait until he comes along. However I would say this immediately that your particulars of claim is far too long and there is too much narrative.
I'm afraid most of it can be cut out
 

Just to begin a quick commentary, line 10 and then again at line 14, you talk about the change of date but you don't make it at all clear who was the initiator of the date change. It's all very vague and it could be taken that you had made the proposal for an alternative date.
Please can you clarify.

However, on the basis of what I understand so far, you booked a wedding on a particular date and it was cancelled/postponed on the initiative of Goosedale and that you tried to accommodate them. They eventually proposed a weekend date but wanted more money for it despite the fact that it was they who had change the date.

I'm not entirely sure whether there were legal constraints in place at the time or whether this was some policy that they were operating of their own initiative by way of taking a responsible approach to the virus problem

 

In fact I realise that you had originally booked a weekend and they proposed a weekday but without offering a refund.

[BankFodder]

I'm sorry but what you're saying is rather unclear.

Quote

The marriage was to take place on 23 May 2020, they did not contact us, after the Regulations for Covid restrictions were in place from 15 March, they then stated that no Refund is available, 

 

It's unclear whether you are saying that they did not contact you at all or that after the Covid restrictions were in place they did not contact you.

It might be easier if you would express the timeline in a bullet pointed chronology. No narrative

[BankFodder]

Does this particulars of claim address the issue?

 

Quote

The claimants seek reimbursement of £7700 paid to the defendant on XXX date 2019 in respect of a frustrated contract for a wedding venue booked for the XX date 2020 and which was cancelled by the defendant as a result of implementing government restrictions in respect of Covid 19. The defendant has refused to refund the contract price. The claimant seeks £7700 plus interest plus costs

 

No. You don't seem to understand. That is the particulars of claim. What more do you need?

 

By the way, don't send anything off until @Andyorch has seen it and commented.

[BankFodder]

Well you are the one who has to decide if it's correct. You have to check it, and see if you think that if there is anything missing. You are the one who is going to have to sign is a statement of truth. As I've already said, wait until @Andyorch has commented.

However, the correct approach to a particular's claim is that you provide the minimum amount of information – and then you let the other side raise all their points and disclose all their arguments in their defence. You shouldn't disclose any more of your own facts or of your own evidence as all you are doing is giving the other side cues as to how to respond

 

 

Now if you'll excuse me, I'm off to a stoning.

 

 

[BankFodder]

Sorry I don't quite understand. You've just recently issue the claim – right? They've responded already? Have they acknowledged the claim or have they filed a defence?

When does the 14 days for them to do so expire? At the exact expiry of the 14 days you should apply for judgement

[BankFodder]

That's ok. You have managed now and we have seen the defence.

Please monitor this thread for a reply tomorrow

 

[BankFodder]

14 hours ago, intree said:

I will await further advice in any event my daughter will attend as a witness so the Judge can talk to her direct, as lay persons we are not aware of the legal situation, my contract was giving them money from my account and the relevance of them taking it - as far as the contract is concerned it has been frustrated so in any event it does not exist, so to preserve my claim as a lay person I used the best of my judgement, I am not legally qualified hence I am sure a Jude will understand this, but I will await further advice,thank you for your responses to my issues in this matter, I know you are trying to help.

 

 

and thank you Bankfodder I will await your response tomorrow 

 

Okay. First of all, don't worry this is fine.

It would be extraordinary if the family of the bride were not intended to be beneficiaries of the contract and if one needed additional proof, you have paid for the venue. Furthermore, it's absolutely a tradition internationally that the bride's family foot the bill for the wedding – regardless of how old-fashioned that idea might be.

Therefore, there is no problem here claiming first party rights under the Contracts (Rights of Third Parties) Act 1999 and there is nothing in any protocol or in the Act that says that this must specifically be pleaded.  I haven't noticed anything in the contract which specifically excludes third party rights.

Their only point in their defence is that you are not the contracting partner. They have not raised any other issues whatsoever and so in principle your reliance on the 1999 Act means that their defence fails.

Of course it won't be as easy as that – because I'm sure that they will want to amend their defence in some way – but for the moment it is a very good start. Now you see the benefit of minimal pleading in your claim because you haven't offered them any particular clues as to how to frame the defence. However you did raise the issue of frustration and they haven't addressed that point at all.

There is a well established principle of pleadings that what is not expressly denied, is admitted. So it can be said that by their silence they have admitted all the points contained in your claim and that your only task is to overcome their position that you don't have the locus to bring the claim.
Of course they are litigants in person and so they have a certain licence – but can you also are litigants in person and therefore so do you.

 

 As I suggested, they can amend their defence – and you can amend your claim, but I don't suggest that you do. Later on we will help you provide a reply to the defence and specifically address the point they are making.

However, for the moment I suggest that you simply indicate to the court you are proceeding with the claim. I notice that they have rejected mediation – so you don't have a choice. Frankly I think that was a mistake on their part.

Their defence is based on rather a technical issue and the fact that there are expressing this as a "lack of capacity" to contract suggests that they've been talking to somebody, but somebody who frankly doesn't really know very much about it.

 

Don't worry

 

[BankFodder]

I didn't know you would be wanting witnesses to come along. I don't think it's a good idea – but maybe you can tell us what they are going to say and we can comment here.

If they do end up going then you need to have a very definite idea of what they are going to be saying. Of course they will be questioned by the other side – but you must know what evidence they are going to produce "in chief" – in other words the main evidence that they will be giving.

It may be that they have nothing useful to say nothing useful to add to what you are going to say in which case it will just confuse the issue.

Are you already saying that you have sent off a directions questionnaire without asking for any directions? Other than the allocation of the court

[BankFodder]

Well of course it is a way to go. I was going to propose simply putting in a reply to the defence pointing out that the claimant was one of a class of beneficiaries being the mother of the bride and therefore relying on the Third Parties Act 1999.

I thought it would be cheaper and quicker – but if you decide to make an application to add the party I would suggest that your reasons for doing so would be something like:

 

 

Quote

First Application:
The applicant has named themselves as claimant in this action as they are entitled under the Contracts (Rights of Third Parties) Act 1999 to enjoy all the rights of a directly contracting party. The applicant is the mother of the bride and in fact is the person who is responsible for the entire organisation of the wedding celebration and its arrangements and who is also paying for the entire event.
The defendant has responded to the claimant's particulars of claim and has defended on the sole point that the applicant lacks locus to sue.
Although the applicant does have locus under the 1999 Act, for the avoidance of doubt, the applicant is now formally seeking to add her daughter as an additional claimant to the action.
The addition of a second claimant does not alter the cause of action in any way. The facts are exactly the same and the applicant does not propose to make any further changes to the particulars of claim at this point.
On that basis, the addition of a second claimant is merely intended to clarify the position and is purely a technical alteration - and as no new issues have been raised in the particulars, there is no necessity for the defendant to make any further response to the claim.
It is in the interests of justice that you be allowed to proceed with your claim either on the basis of your third party rights or with an amendment which is purely technical

Second application:
The Defendant has defended purely on the issue of the status of the claimant. The substantive allegation in the particulars of claim that the contract is frustrated has not been addressed and is therefore admitted by the defendant.
Accordingly, it is requested that the court enters judgement for the claimant with an order that the defendant pays the judgement sum forthwith.

Costs:
As this application is merely a technical clarification but the claimant maintains their position that they are entitled to sue under the Contracts (Rights of Third Parties) Act 1999, and as the amendment proposed by this application raises no new issues, and as the defendant has not defended on any substantive issues raised in the claim, it is requested that the court orders that the costs of this application follow the judgement.

 

[BankFodder]

The only thing I don't like about doing it this way, is that it would have been nicer to leave the reply to the defence should pointed out to the court that the claimant was exercising third party rights, the last moment

Technically, with an application, the defendant will have a chance to respond and effectively they may decide to use this moment to change the defence and to specifically address the issue of the frustrating contract.

I'm not sure which approach is best.

 

I will also add, that if it had been clear in the opening post to this thread as to who did what in terms of organising and finalising the contract, then we would have referred to the third parties act in the original claim and this would have put it beyond doubt

[BankFodder]

Don't worry about the confusion of the beginning. You weren't to know. Frankly it's not massively serious.

If you are going to ask the judge to make the changes under their own motion then I think that you should supply some information – broadly based on the application which I suggested above.

• The important thing is to make very clear are that – firstly, it is clear to anybody experienced in the wedding business that there will be a number of beneficiaries to any wedding celebration – in particular the immediate family – and in particular, the family of the bride. Therefore you clearly come within the class of persons envisaged by the 1999 act and therefore you inherit rights to bring an action – which is what you are doing.
• The addition of your daughter is simply to clarify the position, but it changes nothing. In effect it is merely a technical matter.
• Finally, you have not changed the basis of the substantive claim in any way. Your particulars of claim make it clear that the contract is frustrated – and that remains the case, and unless the defendant raises any further issues, that will remain your position.
• It is in the interests of justice that you be allowed to proceed with your claim either on the basis of your third party rights or with an amendment which is purely technical

 

Therefore you feel that if the judge accepts that you are a class of beneficiary envisaged by the 1999 act, then there would be no need for the court to amend the claim on its own motion. However, if the judge feels that the clarification is necessary, then the amendment should be made in the full knowledge that there is no disadvantage to the defendant's position because no new issues have been raised.

Furthermore, the defendant has not challenged the issue of frustration is simply sought to raise a technical obstacle to the progress of the claim.

These are the points which must be made to the judge either in supporting a request that the court makes the amendment on its own motion, or which must be made in any application you decide to make to amend the claim form.
 

 

You will be unable to represent your daughter at a face-to-face court hearing. She would have to be present. However, if you are the litigating party because of third party rights, then you will be entitled to speak at the hearing because you will be a litigant

[BankFodder]

By the way, if we had known about the way that the contract had been arrived at, then we would simply have advised you to assert from the outset that you were relying on your inherited rights under the Contracts (Rights of Third Parties) Act

[BankFodder]

I would definitely write to the court in advance. I think the judge deftly needs an opportunity to see what you are saying and to consider it.

My own instinct is that the judge will accept completely that you enjoy third party rights. Personally I think that the defendant has latched onto this as a way of obstructing you.

I'm going to make a slight amendment to the two posts which I made above with the suggested representations

[BankFodder]

In addition to the question that my site team colleague has just asked you above, what bearing has the letter to your daughter on the application that you are making to the court as regards your status as a claimant?

Could we see the letter please. Post it up in PDF format

[BankFodder]

3 minutes ago, intree said:

It is a letter to my daughter stating no refund will be given but they accept the Frustration of Contract, this has been posted up above, I have to refer to this in a short while I am just looking into where it is

 

Are you actually saying that your daughter has received a letter in which the defendant agrees that the contract has been frustrated?

 

 

2 minutes ago, intree said:

Yes I advised above I want to continue with the claim, then the transfer came to Leicester which I posted up above

 

Did the DQ give you any space to say anything else other than you wanted to proceed?

[BankFodder]

Well I have to say that you are drip feeding important information to us. It's very unhelpful. A lot of time is being spent here and we are only discovering new information by accident.

Please will you make sure that your file is in order and let's have the information we need

[BankFodder]

If we can see the letter, that will probably change everything and we will take a different approach.

[BankFodder]

Thank you.

The letter is extremely useful because first of all, it acknowledges you as a close family member and that brings you comfortably within the Contracts (Rights of Third Parties) Act and it will be very difficult for them to challenge that.

Secondly, they admit that it is a frustrated contract and all they are doing is trying to find a solution which does not involve making you a refund.

The fact that it is without prejudice is not relevant here for two reasons:

First of all, the without prejudice element would refer to the settlement proposals that they are making. But their admission that it is a frustrated contract has nothing to do with the settlement.

Secondly, they have admitted (by their silence) in their defence that the contract is frustrated. Their admission here is simply evidence that they accept this – and it makes even more evident that their attempt to derail your claim on the basis that you don't have locus is a highly specious argument. Their admission that the contract is frustrated goes to the substantive issue of your claim and they would not be entitled to deny it in court

I suggest that you make an application notice. There will be a fee but I think it's the fastest way to deal with this.

The application notice will basically deal with the points that we have already laid out the earlier draft, but would it will also specifically refer to their defence in which they implicitly admit that the contract is frustrated and that by way of evidence you are supplying their letter dated XXX in which not only do they acknowledge that you are a close family member and therefore likely to be a beneficiary, but also they make it clear at paragraph XXX – highlighted – that they agreed that the contract is frustrated.

On this basis, the defence lacks any validity and you request that the defence be struck out and judgement given the entire sum plus costs plus the cost of this application.

Something like that.
You would supply a copy of their letter with the relevant sentence highlighted in yellow.

 

 

[BankFodder]

In fact, I apologise – because you did post up the letter although it was at post number #53 – not 43.

I'm very sorry because it passed us by and it would have helped enormously if we had noticed it.

 

 

If you agree that this is the way to go then please post up the text of your application notice before you send it off.

I think you will need to set about this fairly quickly

[BankFodder]

I think you might be better off downloading a form N244 and then working from that. Although in theory there is nothing to stop you making an application by means of a letter, I think that it may not be appreciated that it is a formal application.

Start off with the proper court form and then you can attach extra evidence and also your statement

[BankFodder]

I think that it will be better to see it written in the context of the form and to agree it there

https://www.gov.uk/government/publications/form-n244-application-notice

[BankFodder]

I'm just thinking over this, and I think it might be to your advantage to prepare the N244 and then to write a nice letter to the defendants, pointing out what you are proposing to do and suggesting to them that if they consented, it would save a lot of time and a lot of hassle for everybody including them and the court.

Frankly it would be very sensible of them to consent and if they did then that would probably just about bring an end to the litigation. On the other hand if they objected, then I think that we would include this in the application notice and point out to the court that you had sought to discuss this with the defendants and they were being uncooperative and this was a further reason why costs should be awarded in your favour.

I think this is the correct way to go

[BankFodder]

Please don't send anything without running it past us first.

 

Here is a suggested draft of a conciliatory letter which you might want to consider

 

Quote

Dear Mr XXX

 

We have received the defence to our claim number XXX.

I note that the basis of your defence is a technical matter which is that you say that you did not have a contract with me but rather it was with my daughter.

In fact, I shall be relying upon the Contracts (Rights of Third Parties) Act 1999 which gives me complete contractual rights equivalent to the principal contracting party because I am a class of person who is a beneficiary under contract.

I’m sure that you are aware that wedding celebrations are large affairs, involving the close family and generally speaking paid by the family of the bride.

In your letter of 23 September 2020, you correctly identified me as the mother of the bride – so it is clear that you recognise my involvement and my role in the wedding organisation and the wedding celebration

The fact that the person who actually entered into the contract with you was my daughter, by no means reflects the fact that as with most wedding arrangements, it is part of a large joint operation shared by a number of parties and in which particular tasks are allocated to particular individuals.

If you look at the Contracts (Rights of Third Parties) Act and also in any litigation protocols you will find that there is no requirement for the 1999 act to be specifically pleaded. And as I have already said, your defence is based on a purely technical matter which does not affect the substantive argument that the contract has been frustrated by events and by legal obligations.

However, in order to put the matter beyond doubt, I am making an application to the court to add my daughter as a party formally to the litigation in the event that the court considers that I should not be treated as a class of beneficiary as contemplated by the 1999 act.

I am writing to you as a matter of courtesy to inform you that I have prepared this application and I shall shortly be filing it with the court. I think it is beyond doubt that the court will agree and so the purpose of this letter is to ask you if you will consent to this order being made which will save time and expense to all parties and also a great deal of inconvenience to the court.

I’m preparing to file the application notice with the court next Monday. If you agree to the order then I shall inform the court that the whole matter is by consent. In fact it would be easier in that case if you would simply indicate that you have lifted any objection to me being considered as a third party under the 1999 Act.

If you decide to maintain your objection then I shall be filing my application notice with the court and also a copy of this letter.

I do hope that we can cooperate on this. I appreciate that it is not your fault that these events have had to be changed and cancelled – but neither is it mine.

It is clear that this is a frustrated contract.

It’s all very unfortunate time for everybody but I do think that cooperation rather than conflict is the only way to manage it all.

Only to send them this letter but not send them a copy of the application notice. I think that the proposed letter above gives them quite enough information.

[BankFodder]

Please don't send anything off until we have looked at everything. In other words we want to do the application notice as well as the letter – and have it already. Once everything is in place then if we have agreed the letter then send it off.

Please don't send the letter without us having looked at and finalise the application notice. Don't be in such a hurry about this please