Advice on dispute with a private school please

[ORD]

Sheepshanks said:

DonkeyApple said:

We have a local prep that does exactly this. But it is the local school for new money media and overseas bankers and they make a good return out of this game in an area where there is never an issue filling spaces.

Could it ever be considered reasonable to keep anything more than a nominal amount if the place is filled anyway?

Yep. This is the whole point of liquidated damages. Without them, you have to spend thousands fighting over what loss has actually been caused.

[RobinOakapple]

ORD said:

Sheepshanks said:

DonkeyApple said:

We have a local prep that does exactly this. But it is the local school for new money media and overseas bankers and they make a good return out of this game in an area where there is never an issue filling spaces.

Could it ever be considered reasonable to keep anything more than a nominal amount if the place is filled anyway?

Yep. This is the whole point of liquidated damages. Without them, you have to spend thousands fighting over what loss has actually been caused.

Hasn't really answered the question, which is in any case more a moral one than legal.

[Sheepshanks]

ORD said:

Yep. This is the whole point of liquidated damages. Without them, you have to spend thousands fighting over what loss has actually been caused.

If they easily (ie just went to the next person on the list) filled the vacated place then that's easy - there's no loss.

[ORD]

Sheepshanks said:

ORD said:

Yep. This is the whole point of liquidated damages. Without them, you have to spend thousands fighting over what loss has actually been caused.

If they easily (ie just went to the next person on the list) filled the vacated place then that's easy - there's no loss.

And sometimes the loss will be vastly more than £3000. It is perfectly rational and reasonable to just set an amount in advance. The alternative is this: no provision allowing for termination at will and a fight over what loss is caused by breach. That would be a st-storm of unnecessary expense.

[Actus Reus]

RobinOakapple said:

Hasn't really answered the question, which is in any case more a moral one than legal.

It answers the legal question quite definitely.

The argument here seems to be that it was not as clear as it could or should have been from the contract. I've not read it so make no comment.

[JustinP1]

DonkeyApple said:

If the OP's contract was as you say then good on you for batting it back and helping him obtain a settlement. Deliberately obscure consumer contracts are a vile aspect of the legal profession.

The final irony is that after all the hubbub on this thread, the school's solicitors didn't even rely upon the contract terms at all to sue him!

So, in effect, it arguably didn't actually matter whether the OP had read them or not....

The final ounce of sympathy I had for the school was lost when in the claim they did not refer to the actual numbered clause that was breached - because they could not.

It said (I abbreviate a bit):

"If you cancel a place the genuine pre-estimate of loss to the school is between one and five years fees. However, the school agrees to limit this to one term of fees if proper notice has not been given."

In a contract where either party is able to at any time give a term's notice of termination, then the above clearly the above is legal bunkum and all it shows if that the drafter has little understanding of 'genuine pre-estimate of loss'.


So, they didn't rely on the contract (possibly to save embarrassment), and actually specified that they weren't claiming 'damages' as you would normally.

Instead they called on an obscure case law from the 1970's where the judge made a (arguably obiter) remark along the lines of patrons of private schools have the tacit understanding that they must pay school fees in lieu of notice as they would when they terminate the contract with their 'house servant'.

Except, the OP didn't even know what that case law was about or the legal concepts behind the claim because they didn't send him a copy. It was shoddy stuff from start to finish...

[ORD]

JustinP1 said:

The final irony is that after all the hubbub on this thread, the school's solicitors didn't even rely upon the contract terms at all to sue him!

So, in effect, it arguably didn't actually matter whether the OP had read them or not....

The final ounce of sympathy I had for the school was lost when in the claim they did not refer to the actual contract term that was breached.

It said (I abbreviate a bit):

"If you cancel a place the genuine pre-estimate of loss to the school is between one and five years fees. However, the school agrees to limit this to one term of fees if proper notice has not been given."

In a contract where either party is able to at any time give a term's notice of termination, then the above clearly the above is legal bunkum and all it shows if that the drafter has little understanding of 'genuine pre-estimate of loss'.


So, they didn't rely on the contract (possibly to save embarrassment), and actually specified that they weren't claiming 'damages' as you would normally.

Instead they called on an obscure case law from the 1970's where the judge made a (arguably obiter) remark along the lines of patrons of private schools have the tacit understanding that they must pay school fees in lieu of notice as they would when they terminate the contract with their 'house servant'.

Except, the OP didn't even know what that case law was about or the legal concepts behind the claim because they didn't send him a copy. It was shoddy stuff from start to finish...

Blimey! Sounds like an absolute shambles on their side. I had understood that the contract included a term specifying the liquidated damages for termination without proper notice to be £3000 (the fee for a term).

For the uninitiated, "genuine pre-estimate of loss" is a concept used to defeat an argument that a liquidated damages clause gives rise to an unenforceable penalty. The concept has, in any case, been somewhat overtaken by the new (and silly) law on penalties.

[RobinOakapple]

Actus Reus said:

RobinOakapple said:

Hasn't really answered the question, which is in any case more a moral one than legal.

It answers the legal question quite definitely.

The argument here seems to be that it was not as clear as it could or should have been from the contract. I've not read it so make no comment.

But it's not a legal question. Have another look

Sheepshanks said:

Could it ever be considered reasonable to keep anything more than a nominal amount if the place is filled anyway?

He didn't ask about legality, he asked about reasonableness (which as I am sure you will agree is often different).

[DonkeyApple]

Sheepshanks said:

DonkeyApple said:

We have a local prep that does exactly this. But it is the local school for new money media and overseas bankers and they make a good return out of this game in an area where there is never an issue filling spaces.

Could it ever be considered reasonable to keep anything more than a nominal amount if the place is filled anyway?

In theory that is what the deposit increases of recent years are a reflection of. In days gone by it was a nominal admin fee to put your child's name down and man made no charge at all. The modern, high deposit is a function of the rise of the number of consumers who shop around for different schools (primarily as they have no school that they went to or they have migrated to a different area) and the fact that many more consumers include State Primary in their list as well. This means there are more drop outs and condensed into a tighter period so it is harder to manage. They are a business and have a right, if not an expectation by trustees etc, to protect and cover themselves. Plus, the cost of a term's fees for failing to notify in time is generally well known but it is clear to me that at least some schools deliberately set their terms to either confuse or remove selection options. In those case I am of the personal view that they can go and swivel because if they want to act like dubious little scrotes then they must welcome what dubious little scrotes receive in life.

A fair and honorable contract protects both parties. It doesn't set out to create traps for the consumer.

[Richie Slow]

Hungry Pigeon said:

There are many commercial reasons why the contract signed by the OP is reasonable.

Private schools don't want to have their books clogged by folks who can afford to send their kids to private school but want to hedge their bets in case they can educate their kids for free. That's why they set things up so you can't wait to see if you get a free place before accepting a private school place.

The OP sought to hedge his bets but got his arse burnt because he was stupid enough to sign something without reading it.

Folks here have bailed him out by proving themselves to be a pain in the arse. This is why the school settled, not because your legal arguments are blindingly wonderful. You've clearly indicated that you are the archetypal LIP, and they've run a mile - as would any businessman with half a titter of wit.

Whilst your flim-flam may have persuaded the school's solicitors that it's more trouble than it's worth to fight you, I'm with BV in that agreements of this type have been around for yonks (I signed one 15 years ago) and had it gone to court you'd have had your arse handed to you on a plate, and quite rightly so.

Happy days!

Nobody's accused you of being wrong yet.

It would have been just as interesting if a PHer who represented the school's interests had started the thread. A different bias would perhaps have been offered to fit the alternate desired result?

[DonkeyApple]

JustinP1 said:

The final irony is that after all the hubbub on this thread, the school's solicitors didn't even rely upon the contract terms at all to sue him!

So, in effect, it arguably didn't actually matter whether the OP had read them or not....

The final ounce of sympathy I had for the school was lost when in the claim they did not refer to the actual numbered clause that was breached - because they could not.

It said (I abbreviate a bit):

"If you cancel a place the genuine pre-estimate of loss to the school is between one and five years fees. However, the school agrees to limit this to one term of fees if proper notice has not been given."

In a contract where either party is able to at any time give a term's notice of termination, then the above clearly the above is legal bunkum and all it shows if that the drafter has little understanding of 'genuine pre-estimate of loss'.


So, they didn't rely on the contract (possibly to save embarrassment), and actually specified that they weren't claiming 'damages' as you would normally.

Instead they called on an obscure case law from the 1970's where the judge made a (arguably obiter) remark along the lines of patrons of private schools have the tacit understanding that they must pay school fees in lieu of notice as they would when they terminate the contract with their 'house servant'.

Except, the OP didn't even know what that case law was about or the legal concepts behind the claim because they didn't send him a copy. It was shoddy stuff from start to finish...

I like that case.

Would you not counter argue today that the modern 'house servant' in the UK will be a cash in hand immigrant who has no rights whatsoever so can be binned on a whim?

[Actus Reus]

RobinOakapple said:

Actus Reus said:

RobinOakapple said:

Hasn't really answered the question, which is in any case more a moral one than legal.

It answers the legal question quite definitely.

The argument here seems to be that it was not as clear as it could or should have been from the contract. I've not read it so make no comment.

But it's not a legal question. Have another look

Sheepshanks said:

Could it ever be considered reasonable to keep anything more than a nominal amount if the place is filled anyway?

He didn't ask about legality, he asked about reasonableness (which as I am sure you will agree is often different).

Right - I think we're getting tied up in semantics here, but to me 'the reasonable man' is the man on the Clapham omnibus and thus very much legal! Anyway, carry on - I'm off to do some powers of attorney.

[DonkeyApple]

Actus Reus said:

Right - I think we're getting tied up in semantics here, but to me 'the reasonable man' is the man on the Clapham omnibus and thus very much legal! Anyway, carry on - I'm off to do some powers of attorney.

I had to go on the 88 from Clapham many moons ago. There was nothing reasonable or educated about anyone on it until I blessed it with my accidental and once in a lifetime presence.

[thelawnet1]

ORD said:

And sometimes the loss will be vastly more than £3000. It is perfectly rational and reasonable to just set an amount in advance. The alternative is this: no provision allowing for termination at will and a fight over what loss is caused by breach. That would be a st-storm of unnecessary expense.

Not really.

For example, if you are dealing with admissions to an oversubscribed senior school, then your loss is zero.

For a minor prep school, let's say you had 21 applicants for 20 places in nursery. And number 1-20 takes the place, then number 21 is turned away, and seeks education elsewhere. Now number 20 subsequently changes his mind, and doesn't send his child to the school

Now you could say that the loss is potentially 10 years of fees, for nursery to year 8 for number 21, but the problem with that argument is that number 20 had the absolute right to leave after one term anyway, so the amount he needs to pay under the contract is limited to one term's fees.

So we very clearly have damages between £0 and one term's fees.

I don't think it's actually that hard or expensive to say therefore:

Did someone else take the place?
- yes, then you owe nothing
- no, you must pay one term's fees

[JustinP1]

RobinOakapple said:

ORD said:

Sheepshanks said:

DonkeyApple said:

We have a local prep that does exactly this. But it is the local school for new money media and overseas bankers and they make a good return out of this game in an area where there is never an issue filling spaces.

Could it ever be considered reasonable to keep anything more than a nominal amount if the place is filled anyway?

Yep. This is the whole point of liquidated damages. Without them, you have to spend thousands fighting over what loss has actually been caused.

Hasn't really answered the question, which is in any case more a moral one than legal.

To be honest, the moral and legal aspects are often intertwined. If you consider the logic, then you get this:

School states that their 'genuine pre-estimate of loss' (liquidated damages) is X if you don't give enough notice.

Parent A cancels a place and School asks them to cover the liquidated damages.

School offers Parent B the newly available place and they take it up.


Now, the School *don't have to* mitigate their losses because they've used a liquidated damages clause and they've made a 'genuine pre-estimate of loss'. But they have now mitigated their losses.

However, at the point that the contract was formed there might be a glut of parents waiting to take up places, and in the past places have usually been taken up on short notice on a waiting list.

Then the argument Parent A could possibly put forward is that the School have not made a genuine pre-estimate at all since they know that breach is unlikely to result in the financial damage they claim.

Edited by JustinP1 on Wednesday 7th October 13:57

[pincher]

JustinP1 said:

Breadvan72 said:

So, if the OP has bluffed his way out of adhering to his promises, bully for him and his expert team, and for those who think that practicality and the bottom line are all that matter, and think that behaving like a straightforward person who keeps his promises is for silly people, yippee!

So, PHers helping another for free when he's a litigant in person being sued by big firm of solicitors trying to enforce unlawful penalties for a business is immoral...

Breadvan72 two months ago said:

Talking of restraints of trade, guess who got Jenson Button out of his contract with Benetton, back in the day? [/bragging]

...but being paid megabucks to help a multimillionaire get out of one multimillion pound contract to get him into the next is by your own definition 'bragging' material?


Is this for real? Someone help me out here.

Edited by JustinP1 on Tuesday 6th October 02:08

Wonder if this will ever get answered?

[JustinP1]

To be totally honest, it no longer matters.

The discussion has moved on quite a lot since then, thankfully in an adult way discussing the facts and the surrounding legal aspects, rather than moral finger pointing and point scoring.

I wanted to post up the facts so that readers of the thread, whatever their leaning at the start of the thread could understand the actual issues involved. I don't think there's been an attack on the OP's morals after the true facts are known, and possibly I don't think they may have done in the first place had they been known from earlier on.

I for one think this forum is a healthier place if it keeps in the vein of the last couple of pages. Let's not go back.

Edited by JustinP1 on Thursday 8th October 15:30

[gshughes]

DonkeyApple said:

They are a business ...

A point of pedantry, but don't private schools claim to be charities rather than businesses to allow them to claim various tax breaks, or it that no longer the case?

[ORD]

gshughes said:

DonkeyApple said:

They are a business ...

A point of pedantry, but don't private schools claim to be charities rather than businesses to allow them to claim various tax breaks, or it that no longer the case?

Businesses that are also charities.

[ClaphamGT3]

Some will have charitable status, some will be pure businesses - it depends on the school