Contractors' Questions: Any pay-out for me for recovering client's data?

Contractor’s Question: For my Plan B, I manage a few websites and for one client, this means doing occasional monthly updates, page maintenance and SEO.

I did not build the site but I agreed to try to help fix issues caused by a plug-in. In the two days it took, disaster struck and due to me failing to back-up, I lost a good chunk of the site.

As I was unable to get a positive response from the site builder who I tracked down on day three, I contacted the web hosting firm which said restoring the site would cost £100. Who should pay this fee; me or the client? I’m yet to invoice for the work I’ve done which, including the 2-3 days’ running around due to the plug-in disaster, would land the client with a £450 bill, which they’re bound to object to. But I must be compensated for my time; right?

Expert’s Answer: You had a ‘duty of care’ to carry out this work with care and skill. You should have undertaken a back-up before working on the site, which you appear to accept. It must be standard practice, even to a layman, to back-up before undertaking such work. You alone will have to meet the cost of restoring the site, and you cannot charge for any work caused by your failure to back-up; in other words, work which would not have been necessary if you had backed up.

Incidentally, it makes no difference if a contract is silent on the duty of care. In the absence of written terms to the contrary, there is a duty to act with reasonable skill and care. There is both a statutory duty in the Supply of Goods and Services Act 1982, but also a common law duty to carry out work to the same standard that any other reasonably competent professional or tradesperson would see as the minimum standard. Note, “it is sufficient if he exercises the ordinary skill of any ordinary competent man exercising that particular art”. This is known as the ‘Bolam Test,’ from the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.

So it is a mixture of statute law and common law which will imply terms, the former inserting an implied term in the contract, the latter a common law duty the breach of which would amount to negligence.

Dur to the limitations of this Q&A format, we will refrain from providing specific guidance on how you should address this problem. That is a matter for any ‘client care policy’ you should have in place. However, you might consider concluding that it is better to be up-front and reach an amicable solution rather than to wait and reap the client’s expected complaint.

The expert was Nigel Musgrove, a solicitor on behalf of legal advisory Cousins Business Law.

Wednesday 12th October 2016