Small claims court

[DirtyBox]

I was wondering if anyone has any experience of the small claims court? I put my son in a nursery in September but after 4 sessions it became clear it was not working out and the manager suggested I take him out and they would refund the remaining fees. I have 2 emails from her in which she agrees to refund the money however now she is refusing and saying we signed a contract which states the fees are non refundable. Does the fact she agreed to the refund initially over ride the contract?

[rendelharris]

I'm willing to stand corrected by a qualified person, which I'm not, but I'd say unfortunately a signed contract trumps any non-witnessed undertaking she might have made (unless you have an email saying take him out and we'll refund? It sounds like her emails came after though). You might have a case in small claims if you can demonstrate that some deficiency on their part made it unconscionable for you to leave your son there, but otherwise I fear they have the upper hand.

[P.O.U.S.theWonderCat]

Actually, there are only a few circumstances where you need a written contract (e.g. conveyances of land). At law, a verbal contract is as valid as a written one (albeit that a written one is easier to evidence).

[rendelharris]

Oh, well if that's the case maybe you have got a good case - like I said, I'm no expert. It would depend on whether an agreement to refund money constitutes a contract, wouldn't it, rather than an offer - I wouldn't have thought it was as cut and dried as that. Small claims court is interesting - went this year and won against Aspect plumbers for an incompetent job - but bear in mind you have to pay fees (I think it was about ?110) which you won't get back if you lose, and the defendants may be able to claim for expenses incurred as a result of the claim.

[ianr]

> but bear in mind you have to pay fees (I think it was about ?110)

The fees do vary with amount claimed: https://www.gov.uk/make-court-claim-for-money/court-fees.

Do you perhaps not have an agreed variation of contract? What you describe suggests that you have agreed to forgo the future sessions, and the nursery has agreed to forgo the fee, and confirmed so in writing.

Eg: http://www.out-law.com/en/topics/projects--construction/construction-contracts/variations-to-contracts-and-changes-in-the-law/

http://consumerhub.eversheds.com/specialism/how-effective-are-variation-clauses-in-your-contracts/

[malumbu]

Speak to your local trading standards Office (you will probably be referred to Citizens Advice). It may be that the nursury has a history already.

Check out your position on unfair contracts - https://www.gov.uk/government/collections/cma-consumer-enforcement-guidance. For something as personal as looking after your children surely they cannot demand such inflexible arrangements. Nurseries could be classed as a distress purchase where the power may be with the seller.

Write, preferably old school and recorded delivery with a reasonable request but say that if you don't get satisfaction that you will to to the County Court. Refer to the e-mails.

You may suggest a compromise of alternative dispute resolution http://www.tradingstandards.uk/advice/AlternativeDisputeResolution.cfm which will then make you come across as being reasonable if you go further.

Small Claims Court is set up to be (relatively) low cost and easy to use. I've been through it a few times. Problem can be enforcement, particularly individuals, where bills can mount up.

Whilst you don't want expensive legal advice the nursery is likely to want to avoid it too.

[DirtyBox]

Thank you for the advice. I'm going to write a pre-action letter to them and send it via email and also send it to the nursery, the registered address of the company, and to the home address of the 2 directors. Will probably hand deliver to the nursery as it's only down the road and then they can't claim non-receipt.

I will list the reasons both sides decided that we couldn't continue to use the nursery - giving a bowl of coco-pops as a snack instead of fruit like they said they would and putting my sons nappy on so tight he was crying in pain - as well as pointing out that they already agreed to the refund. Hopefully that will do the trick and we can avoid court.

[rendelharris]

The reasons you give for withdrawing your boy mean you have a case for non-provision of agreed services so breach of contract - I'd suggest, as they did these things, you have a case for refund of all fees paid, not just the unexpired portion. I meant to add to previous, when I went to small claims I found the judge to have one of the sharpest minds I've ever come across (and my barrister sister tells me this is very common) - if you have a good case s/he'll cut through any bluster and see the facts. Good luck!