Advice on dispute with a private school please
Discussion
ORD said:
I just checked back over the first few pages to see whether I had misremembered what BV said. I had not. He actually said this:
"It is easy for pub experts to encourage the OP to spend time and money defending the claim, but my view, based on decades of real life cases, is that the OP should settle ASAP. If he can negotiate a bit off the claim, great, but if the school holds out for the full amount, it is not worth the OP contesting this."
Nothing I have seen has led me to believe that this was anything but good advice.
He also said this in his very post on the thread: "You are bang to rights, OP. Pay up". Not only that, but from the explanations Justin has provided, that bit in bold doesn't sound like good advice either."It is easy for pub experts to encourage the OP to spend time and money defending the claim, but my view, based on decades of real life cases, is that the OP should settle ASAP. If he can negotiate a bit off the claim, great, but if the school holds out for the full amount, it is not worth the OP contesting this."
Nothing I have seen has led me to believe that this was anything but good advice.
Giving out advice, as opposed to merely raising points for the OP to investigate, regardless of how many years experience it is based upon, without reading the contract in question, is utterly ridiculous.
If I go to a solicitor saying "I want out of this contract and THIS is the reason I should be allowed", I don't want to hear him say "tough titties, THAT particular point is watertight so you're stuffed, pay up.", what I would like to hear is "THAT particular point is watertight, HOWEVER, this one, this one and this one are not, so we can try and argue THOSE points", something only someone that has read the contract can say with any accuracy. Which is exactly what Justin and Jas did to great effect.
Edited by Centurion07 on Tuesday 13th October 21:25
I am not trying to be argumentative or patronising, but I think you are completely wrong about that clause. It looks to me like a perfectly valid liquidated damages clause, and the structure that it takes is not even very unusual. It's not uncommon to say something like this:-
'The parties acknklowedge that any breach of clause BLAH may case loss to Party A in the amounts of x, y or z. It is nonetheless agreed that Party A may recover x for each and any breach of that clause'.
You have a tendency to make Big Picture points about fairness and so on, but our law is a great deal more technical than that. There are right and wrong ways of approaching an issue. Banging on about the contract being unclear or long is almost always a complete dead end.
'The parties acknklowedge that any breach of clause BLAH may case loss to Party A in the amounts of x, y or z. It is nonetheless agreed that Party A may recover x for each and any breach of that clause'.
You have a tendency to make Big Picture points about fairness and so on, but our law is a great deal more technical than that. There are right and wrong ways of approaching an issue. Banging on about the contract being unclear or long is almost always a complete dead end.
ORD said:
I am not trying to be argumentative or patronising, but I think you are completely wrong about that clause. It looks to me like a perfectly valid liquidated damages clause, and the structure that it takes is not even very unusual.
Can you answer me this:Considering that either party can terminate the contract with just 'a term's notice', how can breach of the agreed notice period possibly cause 'a genuine pre-estimate of loss' of '1 to 5 years fees'?
I think the silence will be deafening, so I'm happy to open the question to the floor... Alternatively, do you see the point I am making?
For the good of the thread and the layman reading trying to understand the concepts, I would hope that the rather 'tribal' start of this thread can be forgotten and perhaps we might get Breadvan's thoughts on the drafting of that clause and the problems with it as he will undoubtedly be able to explain more succinctly than I can.
Edited by JustinP1 on Wednesday 14th October 00:27
(1) You have not quoted the actual contractual term (unless I have missed that bit), but instead have, it appears paraphrased it. This is a bit odd, given that you bang on about how important it is to look at the actual words.
(2) The contract, according to your paraphrase, did NOT claim one to five years of fees as a pre estimate of damage. it claimed one term's fees. The prefatory words are just flim flam that have no operative effect. The question is what was the obligation, and the obligation was to pay a term's fees. Arguing "this clause is unfair because it said that it could have done something unfair but in the event it didn't" is a daft argument.
I still cannot see how all of the smoke and mirrors that you throw up have any bearing on what sounds like a very simple claim, that did not depend on all of the long and well or ill drafted terms of the contract. I am sorry, Justin, but your posts suggest that you are a bit adrift on how the law of contract works.
More generally, there is such a thing as legal reasoning, and you do not have to be a qualified lawyer to be adept at such reasoning (Loon1 is good at it, for example, and so is La Liga). You may be cross when I say this, Justin, but you don't appear to me from your posts to have that knack. This may be a type of reasoning that can be learned, or maybe a person just has it or doesn't have it - I don't know (my ex wife, a very bright woman, studied law for a while, but could not make head nor tail of it, as she just couldn't adopt legal reasoning, and every year a bunch of new law undergraduates change subjects in the first term because they just cannot get their heads around how legal thinking goes).
You do give some very useful practical advice, however, Justin, and long may that continue. If by being bolshie you have got the OP a result, then that is a result. If you judge by results alone, you are right, but if we are taking of the academic question of whether the OP had a defence to the claim, I still cannot see what your case is. I can imagine a |Judge saying to you at a hearing "Yes, Mr J, that's all very well, but how does any of this answer the claim?"
When I see litigants in person in court, they often come a cropper because they cannot see what is relevant to the determination of a point and what is not, and even when given lots of hints by the Judge they insist on banging on about irrelevant stuff. Some such LIPs do indeed get results, because they wear down the opposition by taking every ballsaching point imaginable. See the litigious character depicted in "The Hound of the Baskervilles", or Mr Haddock of "Uncommon Law".
(2) The contract, according to your paraphrase, did NOT claim one to five years of fees as a pre estimate of damage. it claimed one term's fees. The prefatory words are just flim flam that have no operative effect. The question is what was the obligation, and the obligation was to pay a term's fees. Arguing "this clause is unfair because it said that it could have done something unfair but in the event it didn't" is a daft argument.
I still cannot see how all of the smoke and mirrors that you throw up have any bearing on what sounds like a very simple claim, that did not depend on all of the long and well or ill drafted terms of the contract. I am sorry, Justin, but your posts suggest that you are a bit adrift on how the law of contract works.
More generally, there is such a thing as legal reasoning, and you do not have to be a qualified lawyer to be adept at such reasoning (Loon1 is good at it, for example, and so is La Liga). You may be cross when I say this, Justin, but you don't appear to me from your posts to have that knack. This may be a type of reasoning that can be learned, or maybe a person just has it or doesn't have it - I don't know (my ex wife, a very bright woman, studied law for a while, but could not make head nor tail of it, as she just couldn't adopt legal reasoning, and every year a bunch of new law undergraduates change subjects in the first term because they just cannot get their heads around how legal thinking goes).
You do give some very useful practical advice, however, Justin, and long may that continue. If by being bolshie you have got the OP a result, then that is a result. If you judge by results alone, you are right, but if we are taking of the academic question of whether the OP had a defence to the claim, I still cannot see what your case is. I can imagine a |Judge saying to you at a hearing "Yes, Mr J, that's all very well, but how does any of this answer the claim?"
When I see litigants in person in court, they often come a cropper because they cannot see what is relevant to the determination of a point and what is not, and even when given lots of hints by the Judge they insist on banging on about irrelevant stuff. Some such LIPs do indeed get results, because they wear down the opposition by taking every ballsaching point imaginable. See the litigious character depicted in "The Hound of the Baskervilles", or Mr Haddock of "Uncommon Law".
ORD said:
I am not trying to be argumentative or patronising, but I think you are completely wrong about that clause. It looks to me like a perfectly valid liquidated damages clause, and the structure that it takes is not even very unusual. It's not uncommon to say something like this:-
'The parties acknklowedge that any breach of clause BLAH may case loss to Party A in the amounts of x, y or z. It is nonetheless agreed that Party A may recover x for each and any breach of that clause'.
You have a tendency to make Big Picture points about fairness and so on, but our law is a great deal more technical than that. There are right and wrong ways of approaching an issue. Banging on about the contract being unclear or long is almost always a complete dead end.
I agree, save on this - the law is mostly substantive, and not technical. People rarely win on true technicalities. Arguing that the claim fails because the contract contains some unrelated clause that might contravene some consumer rule strikes me as trying to win on a technicality. A sensible Judge would say "yuh Momma", but probably more politely (unless the Judge was Alan Moses, in which case he would say GTFO).'The parties acknklowedge that any breach of clause BLAH may case loss to Party A in the amounts of x, y or z. It is nonetheless agreed that Party A may recover x for each and any breach of that clause'.
You have a tendency to make Big Picture points about fairness and so on, but our law is a great deal more technical than that. There are right and wrong ways of approaching an issue. Banging on about the contract being unclear or long is almost always a complete dead end.
Breadvan72 said:
I agree, save on this - the law is mostly substantive, and not technical. People rarely win on true technicalities. Arguing that the claim fails because the contract contains some unrelated clause that might contravene some consumer rule strikes me as trying to win on a technicality. A sensible Judge would say "yuh Momma", but probably more politely (unless the Judge was Alan Moses, in which case he would say GTFO).
You're right. 'Technical' was a poor word to use. I meant to use that term in contrast to 'meritsy' and 'big picture' stuff. The rules are usually quite detailed and reward close analysis rather than messing about at the edges or saying 'But what about...?'. In this case, the contract might be a load of b
ks generally or really naughty in some way, but the damages provisions are capable of interpretation and can be tested against the rules specific to such terms. A minor point, the flim flam at the start of the kind of clause in question is, I have always guessed, there to set up some kind of estoppel. I don't know whether it works, but I read it a bit like a recital.
Most Judges are merits judges, and do not like picky points. Litigation is really dead simple. The basic rule is that goodies win, baddies lose. This rule is too often broken, but it holds good in more cases than not. In this case, the OP was the baddie* and the school was the goodie (all things are relative), but the baddie was able to reduce the size of his payout thanks to the power of ballsaching. Darth Justin!
* (Relative) baddie because promise breaker. Coriolanus says: "I'll fight with none but thee; for I do hate thee worse than a promise-breaker."
* (Relative) baddie because promise breaker. Coriolanus says: "I'll fight with none but thee; for I do hate thee worse than a promise-breaker."
Hol said:
RobinOakapple said:
Hol said:
Thank god for grammar schools then.
All you need to is pass a test and your in for no extra money over the secondary-modern alternative, so long as you choose the closest one to your home that is.
Did you go to one?All you need to is pass a test and your in for no extra money over the secondary-modern alternative, so long as you choose the closest one to your home that is.
It was a secondary modern life with
s, playground fights and a few kids who just didn't want to be there (at all).I went to a compo school that was partly a posh grammar school in disguise. It cynically adapted to being a comp by running the top half of the school as a grammar (great teachers with degrees from the best universities, Latin, French, sciences, arts, and so forth) and the bottom half of the school as a secondary mod (rubbish teachers, extensive caning, kids helping the handyman to fix the lawn mower instead of learning to spell).
* Yes, some went on to be bazillionaires, but most didn't. Not all of the grammar schools got cushty white collar jobs, but lots did. And, no, not everyone can be a surgeon, and we do need grunts, and knowing how to fix a lawnmower is a good thing, and not everyone needs a degree, but none of that makes the old system any the fairer.
Edited by anonymous-user on Wednesday 14th October 08:47
Breadvan72 said:
No answer to the question, a bit of reasons why it shouldn't be answered, lots of stuff about Justin.
BV - I appreciate your answer, but it has circumnavigated a simple question. In preference we've gone back to generalisations and your opinion of me based upon my interactions with individual posters over particular points.If I made an assessment of how you deal with cases in the real world with some arguments you have with posters, I don't think I'd get a true picture of your legal understanding either.
Please don't take from my repetition that this was the crux of the OP's case, because actually it has nothing to do with the claim or the defence in the end. It's brought up due to ORD's insistence that I don't know what I'm talking about regarding the clause.
Your above comments noted, lets pretend there's a gun to your head and you had to just give a simple answer to this question:
JustinP1 said:
Can you answer me this:
Considering that either party can terminate the contract with just 'a term's notice', how can breach of the agreed notice period possibly cause 'a genuine pre-estimate of loss' of '1 to 5 years fees'?
Considering that either party can terminate the contract with just 'a term's notice', how can breach of the agreed notice period possibly cause 'a genuine pre-estimate of loss' of '1 to 5 years fees'?
Edited by JustinP1 on Wednesday 14th October 08:53
It is a non question, because there was no contractual obligation to pay one to five years of fees in the event of withdrawal of the pupil. Such an obligation would have been unenforceable, but, and I will say this once more, and slowly, there was no such obligation. Your question simply does not arise. It has no valid premise. I am only interested in what is relevant. Your inability to grasp what is wrong with your position reinforces my view that you are struggling with legal reasoning (not the same thing as the reasoning of a lawyer). You really cannot see the woods for the trees. If you take that personally, I'm sorry, but there it is.
Well I went to a normal state school and was in the bottom set for everything. I was even expelled from my first one. I still did okay and came out with 4a's and a b at a-level. I think the whole streaming and banding is a load of rubbish. It didn't really do me a lot of good as I've never really used my qualifications. But I can't see how anyone truly thinks their education is hampered because of a bit of scrapping in the playground. Seems to me like an excuse made by parents who can't accept their kids not very bright*.
- I'm saying this as someone who isn't particularly bright myself. So I'm allowed to use offensive language.
singlecoil said:
Education is a competition, the idea is to have more of it, and better quality, than others get. I don't think grammar schools are 'fair', but I am very glad that I went to one (a very good one).
Grammar Schools work for the positive side of the argument as far as I can tell as a parent. They identify the brighter kids, irrespective of background or wealth and provide a workable solution to private school tuition. (Which is why I mentioned them to answer that point).
Books and Films aside. Including U571.
Edited by Hol on Wednesday 14th October 09:01
Breadvan72 said:
It is a non question, because there was no contractual obligation to pay one to five years of fees in the event of withdrawal of the pupil. Such an obligation would have been unenforceable, but, and I will say this once more, and slowly, there was no such obligation. Your question simply does not arise. It has no valid premise. I am only interested in what is relevant. Your inability to grasp what is wrong with your position reinforces my view that you are struggling with legal reasoning (not the same thing as the reasoning of a lawyer). You really cannot see the woods for the trees. If you take that personally, I'm sorry, but there it is.
Cheers,I brought it up because I was told that I was wrong and that the clause was 'perfectly valid'.
The first half of the clause was 'flim flam' as you've stated. The 'genuine pre-estimate of loss' calculated properly could never be '1 to 5 years fees' in the first place - regardless of their seemingly kind offer to limit it to a term.
That's the only point I am making on this. As I've said before, this point has no relevance to the claim or the defence - as the claim was 'not for damages'.
Edited by JustinP1 on Wednesday 14th October 09:12
You are wrong. The clause (as paraphrased by you) is perfectly valid.
Those above who say I am wrong, can they please explain how? I advised the OP to try and knock something off the claim in a settlement. He did. Justin and JandJ helped him to do this by blowing smoke in the eyes of the school and letting it know that it had to deal with a stubborn LIP who would argue crappy points all day and waste time and money. Good on them! I haven't seen anything to lead me to change my vuew of where the merits lay, factually and legally.
Those above who say I am wrong, can they please explain how? I advised the OP to try and knock something off the claim in a settlement. He did. Justin and JandJ helped him to do this by blowing smoke in the eyes of the school and letting it know that it had to deal with a stubborn LIP who would argue crappy points all day and waste time and money. Good on them! I haven't seen anything to lead me to change my vuew of where the merits lay, factually and legally.
singlecoil said:
Education is a competition, the idea is to have more of it, and better quality, than others get. I don't think grammar schools are 'fair', but I am very glad that I went to one (a very good one).
Football is a competition. Each side has the same number of players. The goal is the same size at each end. The playing field is level. Does fairness of opportunity mean nothing to you?At present, the football team that is my daughter can be Chelsea, and the football team that is the kid from the council flats down the road can be Wisbech FC. That is because I can buy the best players and a good coach. The parents of council house kid cannot. This is not necessarily because those parents are less interested in their child's education than I am in my child's education.
Parental commitment is vital, and many do lack that commitment, but resources also matter - look at the facilities that even an average private school deploys, and compare those to the facilities at the average state school. Blair, for all his faults, improved education through applying resources to State schools - I saw this happen during the noughties as a school governor and through doing school visits to talk about careers. If we put everything down to parental commitment, how can we help the children unlucky enough to be born to feckless parents? It is not the fault of the child that the parents are layabouts. I have a colleague from a crappy council house background whose parents were hostile or at best indifferent to education. A good State school helped him to go to Cambridge and Harvard, get a first degree and then a Doctorate, and become a leading civil liberties lawyer, changing the world for the better, and paying buckletloads of tax.
singlecoil said:
Education is a competition, the idea is to have more of it, and better quality, than others get. I don't think grammar schools are 'fair', but I am very glad that I went to one (a very good one).
I am sorry to be picky, but a good grammar school would have produced the following sentence: -Education is a competition. The idea is to have more of it, and of better quality, than others have. I don't think that grammar schools are "fair", but I am very glad that I went to one (a very good one).
Breadvan72 said:
singlecoil said:
Education is a competition, the idea is to have more of it, and better quality, than others get. I don't think grammar schools are 'fair', but I am very glad that I went to one (a very good one).
I am sorry to be picky, but a good grammar school would have produced the following sentence: -Education is a competition. The idea is to have more of it, and of better quality, than others have. I don't think that grammar schools are "fair", but I am very glad that I went to one (a very good one).
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