Repudiation of Invoice post contract performance

[wideboards]

Through his secretary,entirely via email, a customer asked work to be done. The work was unquantifiable. I offered to do the work under my daywork terms as set out below and sent by email to the secretary who acknowledged receipt by email and asked for a start date. The work was carried out to everyone's satisfaction with no caveats expressed. Upon receipt of my invoice, which included the cost of travelling time to and fro London and Northumberland, the client telephoned to repudiate the invoice, insisting that he never intended to pay travelling time, that travelling time was never paid for, that it was not 'custom and practice' to pay travelling time in the building trade and that he had no intention of paying the travelling time. I am confident that I have a clear, unambiguous contract and that the client cannot rely upon a doubtful 'custom and practice' argument. Does anyone see holes in my arguments and position that he should pay in full? Providing I set out my terms and costs clearly,- which I believe I have done - that the client is fully compus mentis, and familiar with business practices, (which this wealthy client is ) can I not charge for anything I choose to charge for and at any rate of my own choosing?

" 9. Daywork.
i. As far as possible everything that is quantifiable will be included in a fixed price quotation. It is not our wish to find means to increase the overall price. However, only the work specified will be carried out within the fixed price quotation. All additional work will be charged at the following Daywork rates within the UK. Overseas rates will be subject to negotiation. a. Labour. � 41.64 per man-hour.
b. Materials. � Cost + 25%
c. Plant. � Hire Cost + 25%
ii. Where Daywork and fixed price work is carried out in the same day, travelling time and other costs will be apportioned proportionately to the number of hours worked in the whole day.

[wideboards]

No. No fixed price was offered for any of the work.

[factor-fiction]

It could be argued that the last sentence of your T&Cs is ambiguous and that the travelling time charge doesn't apply since there was no fixed price work and therefore daywork and fixed price work were not carried out in the same day.

[Buenchico]

I'd go further than Factor30 and suggest that (unless there's another part of the document we haven't seen) it's completely unambiguous that travelling time will only be charged for when daywork and fixed price work are carried out on the same day.

Chris

[wideboards]

Those are interesting comments. Do those views take into account that the offer to carry out the work stated that it would only be carried out under Daywork?

[Buenchico]

If I was arguing your client's case I would regard that statement as strengthening my hand. Section 9 (ii), of your document, appears to specifically state that it only applies where both daywork and fixed price work are carried out, so I'd feel entitled to completely ignore it.

Chris

(PS: Watch out for a post from Barmaid. She's a barrister specialising in civil law, so anything she writes should carry a great deal of weight).

[wideboards]

Thank you Buenchico, there are more terms but the word limit for the site cut off the rest of the Terms in that section. So the full terms read as follows;

9. Daywork.
i. As far as possible everything that is quantifiable will be included in a fixed price quotation. It is not our wish to find means to increase the overall price. However, only the work specified will be carried out within the fixed price quotation. All additional work will be charged at the following Daywork rates within the UK. Overseas rates will be subject to negotiation.
a. Labour. � 41.64 per man-hour.
b. Materials. � Cost + 25%
c. Plant. � Hire Cost + 25%
ii. Where Daywork and fixed price work is carried out in the same day, travelling time and other costs will be apportioned proportionately to the number of hours worked in the whole day.
iii. Travelling time and associated costs are charged at Daywork Rate a.
iv. Accommodation and fuel costs are chargeable at Daywork Rate b.
v. Non-motorized hand tools only are included in the Daywork rates. All powered tools are chargeable in Daywork Rate c. Hire rates are those chargeable, on the day charged, upon a weekday day rate by HSS Tool Hire excluding special offers.
vi. Fixed prices are quoted on the basis that the work will be carried out as a single, uninterrupted contract, without delays whether caused by the client, other workmen, contractors, neighbours, or any other outside agency whatsoever, excluding war, riot, and acts of God. All delays in the work will be charged for at the daywork rate.
vii. The lack of availability of an authorized person from the client, contracting or sub-contracting company, to expedite matters shall not militate against �����������.

[Buenchico]

Hmmm.

I reckon that 9(iii) could keep teams of lawyers occupied for weeks. It clearly defines the rate at which travelling time will be charged (which is a point your lawyers would want to stress) but it fails to define when such charges will be applied to a contract (which would bring a smile to the faces of your client's lawyers). i.e. your client could state that he'd only entered into a contract to have the relevant work done at his premises and not into a contract which included any element of travelling time.

There are certainly some grey areas here. If I see Barmaid (AB's tame barrister) posting anywhere, I'll ask her to provide her opinion but I'd be surprised if she could separate the 'grey' into 'black and white'.

Chris

PS: I'm curious as to exactly what type of work requires someone to travel from London to Northumberland, and involves such high charges. (My mate's a fully qualified plumber. He charges �10 per hour, with materials and equipment hire at cost price, and no call-out fees. He still seems to make a decent profit!)

[wideboards]

Dear Buenchico thank you for your illuminating responses and the interesting anecdote about your plumber. Can I have his name and number because there are no plumbers who work so frugally in our area. At �10 per hour he is not making a profit. He is barely making a living, especially if he is not charging extra for fuel, travelling, running a vehicle, providing modern tools. Even at the rates I charge we do not make huge profits. Running a business is a costly business when you have employees. In answer to your question, I make extraordinary hardwood floors. We do what others, lacking the skills built up over a lifetime of specialist work, cannot do. Also, we pay highly - substantially more than �10 per hour - for those skills in our craftsmen and charge accordingly.