Agency added completion payment clause negligently without client knowledge Agency added completion payment clause negligently without client knowledge
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  1. #1

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    Default Agency added completion payment clause negligently without client knowledge

    I am an IT contractor and completed a contract Sep 2018-March 2019 through an agency for a banking client. My ltd company contract with the agency had a completion payment clause, i.e. if I complete the 7 month contract then (as per client discretion) I will get a nice little bonus at the end, paid by the client. At the end of contract, all other contractors (hired directly or via other agencies) received the confirmation from the client that they will be getting the bonus equal to 15% of invoicing. When I enquired about my payment, the client was surprised to know that the agency had included the clause in my contract, even though they had instructed the agency that new contracts, around the time I started work, will not be offered completion payment. The client confirmed that the agency has made a mistake.

    I contacted the agency and they admitted that the clause was added by mistake in my contract. However, they are claiming due to the language in the contract, they don't have to remedy anything.

    ‘The amount of the Completion Payment will be determined by the Client in its sole discretion based on such factors as the Client shall determine in its absolute discretion,
    including the quality of the Services and Deliverables provided.’


    ‘Nothing in this Agreement shall give any Contractor and/or their Consultant(s) any right to the Completion Payment’

    However, the question of client discretion does not even arise, when they did not even know about the clause. The client is really happy with my work and I would have received the payment, only if they knew. This has left me really angry and upset, as I was waiting on that payment (a little over £10k+vat) and passed on better paying contracts to complete the contract to receive the bonus. Due to error/omission/negligence on part of the agency, I have suffered monetary loss.

    I asked the agency to compensate me for the loss of income. The agency intially offered £2k as goodwill gesture, which I refused. They have since revised the offer of extra payment to £2,340 (laughable) only if I stay till July 2019, as per the new contract extension that I signed (before manure hit the fan). If I give my 4 weeks notice for the new contract now, then I get nothing. The agency is putting pressure on me now, implying through the tone and language of emails, that they would rather be happy if I left the new contract. This has left me extremely stressed and now started to get physically ill.

    Anyways, focussing on my last contract, can someone kindly guide me? Do I have a case? What are my options?

    Is it professional negligence by agency? Breach of contract? Recommendation for a lawyer - where I will not end up paying more money to the lawyer than I am hoping to get back?

    Thanks in advance!

  2. #2

    Prof Cunning @ Oxford Uni

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    Quote Originally Posted by Status500OK View Post
    I am an IT contractor and completed a contract Sep 2018-March 2019 through an agency for a banking client. My ltd company contract with the agency had a completion payment clause, i.e. if I complete the 7 month contract then (as per client discretion) I will get a nice little bonus at the end, paid by the client. At the end of contract, all other contractors (hired directly or via other agencies) received the confirmation from the client that they will be getting the bonus equal to 15% of invoicing. When I enquired about my payment, the client was surprised to know that the agency had included the clause in my contract, even though they had instructed the agency that new contracts, around the time I started work, will not be offered completion payment. The client confirmed that the agency has made a mistake.

    I contacted the agency and they admitted that the clause was added by mistake in my contract. However, they are claiming due to the language in the contract, they don't have to remedy anything.

    ‘The amount of the Completion Payment will be determined by the Client in its sole discretion based on such factors as the Client shall determine in its absolute discretion,
    including the quality of the Services and Deliverables provided.’


    ‘Nothing in this Agreement shall give any Contractor and/or their Consultant(s) any right to the Completion Payment’

    However, the question of client discretion does not even arise, when they did not even know about the clause. The client is really happy with my work and I would have received the payment, only if they knew. This has left me really angry and upset, as I was waiting on that payment (a little over £10k+vat) and passed on better paying contracts to complete the contract to receive the bonus. Due to error/omission/negligence on part of the agency, I have suffered monetary loss.

    I asked the agency to compensate me for the loss of income. The agency intially offered £2k as goodwill gesture, which I refused. They have since revised the offer of extra payment to £2,340 (laughable) only if I stay till July 2019, as per the new contract extension that I signed (before manure hit the fan). If I give my 4 weeks notice for the new contract now, then I get nothing. The agency is putting pressure on me now, implying through the tone and language of emails, that they would rather be happy if I left the new contract. This has left me extremely stressed and now started to get physically ill.

    Anyways, focussing on my last contract, can someone kindly guide me? Do I have a case? What are my options?

    Is it professional negligence by agency? Breach of contract? Recommendation for a lawyer - where I will not end up paying more money to the lawyer than I am hoping to get back?

    Thanks in advance!
    If you want a solicitor that does a good job, have deep pockets.

    But going back to the start, you say that the client was surprised a bonus was in your contract, because they weren't offering one.
    The question of discretion does arise - if the client isn't paying you a bonus because they did not intend you to have one due to your contract, then that's the deal.
    But speaking of discretion, it sounds like you have discussed your contract directly with the client. You might want to check the contract to see what it says about that.

    Yes, it's sad that you were hoping for a completion bonus that the client was never going to pay, but the best you could hope for from an agent would be some sort of goodwill gesture as they are under no obligation to pay you a bonus, unless they receive it from the client.
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    Take the £2k good will gesture.
    At the end of the day, the agency aren't going to pay you unless the client pays them. If they offer £2k that's veryu generous for an agency.

    You don't really have a case as the contract doesn't commit to paying at all.
    The only possible case you could have is if you could prove that other contractors, equal to you in all other ways, did receive the payment. And then it would be down to a judge ruling quite generously on your side (which I doubt would happen).

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    Quote Originally Posted by WTFH View Post
    If you want a solicitor that does a good job, have deep pockets.

    But going back to the start, you say that the client was surprised a bonus was in your contract, because they weren't offering one.
    The question of discretion does arise - if the client isn't paying you a bonus because they did not intend you to have one due to your contract, then that's the deal.
    But speaking of discretion, it sounds like you have discussed your contract directly with the client. You might want to check the contract to see what it says about that.

    Yes, it's sad that you were hoping for a completion bonus that the client was never going to pay, but the best you could hope for from an agent would be some sort of goodwill gesture as they are under no obligation to pay you a bonus, unless they receive it from the client.
    hiya WTFH, many thanks for your reply. Re the discretion and discussing the completion payment with the client - I was advised by the agency that it is something the client will inform me about - hence, I brought it up with the client at the end of contract. I understand that the client does not has to pay, as their contract with agency is clear. I am seeking a reasonable remedy from the agency, with whom I have the contract, for being negligent. Sigh, I understand your point about lawyers and deep pockets

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    Prof Cunning @ Oxford Uni

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    Quote Originally Posted by Status500OK View Post
    hiya WTFH, many thanks for your reply. Re the discretion and discussing the completion payment with the client - I was advised by the agency that it is something the client will inform me about - hence, I brought it up with the client at the end of contract. I understand that the client does not has to pay, as their contract with agency is clear. I am seeking a reasonable remedy from the agency, with whom I have the contract, for being negligent. Sigh, I understand your point about lawyers and deep pockets

    But if the agent do not get paid by the client, how is the agent negligent?
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  6. #6

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    @WTFH sigh, I understand what you mean by lawyer and deep pockets. Re discretion for bonus payment, the agency advised me that it is beween me and the client, hence i brought it up with the client, at the end of the contract. Agency contracts team was negligent/messed up and seems like now got away with it too

    @Lance loved the Jam tomorrow
    Last edited by Status500OK; 25th April 2019 at 15:32.

  7. #7

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    IMO all the answers are in your post. Unfortunate in your emotional state it's hard to see the cold hard facts.

    So going through a few points...

    The client is really happy with my work and I would have received the payment, only if they knew.
    No you wouldn't. If they knew then it wouldn't have been in there. You said it yourself.

    When I enquired about my payment, the client was surprised to know that the agency had included the clause in my contract, even though they had instructed the agency that new contracts, around the time I started work, will not be offered completion payment. The client confirmed that the agency has made a mistake.
    The wording of the clause is absolutely awful. IMO you should have asked them for clear terms.

    This line alone should end the whole argument.

    ‘Nothing in this Agreement shall give any Contractor and/or their Consultant(s) any right to the Completion Payment’
    But you've got to where you are so lets look at the other clause.

    ‘The amount of the Completion Payment will be determined by the Client in its sole discretion based on such factors as the Client shall determine in its absolute discretion,
    including the quality of the Services and Deliverables provided.’
    So they can pay what they want. It says it will include factors but the wording to me comes down to 'The client can pay what they want'. As there are no KPI's around the factors they mention so they are utterly worthless

    They didn't mean it to be in there and weren't really prepared to pay any contractors around that time any bonuses so they can decide to pay you nothing. It's at their sole discretion.

    I asked the agency to compensate me for the loss of income. The agency initially offered £2k as goodwill gesture,
    IMO, bearing the other factors above in this is a bloody good result! Snap their hand off.

    implying through the tone and language of emails, that they would rather be happy if I left the new contract.
    Of course they would, you are a problem to them so they want you gone. I know it's no fault of yours but still. The easiest way to address this problem is to remove it.

    I don't think you've got a hope in hell here and any lawyers fees are going to seriously reduce anything you get back. You spend 3k on a lawyer you get's you a 50/50 result i.e. 5k and you've got how much left.. Oh look.. 2k! And if this is stressing you out, wait until you start a legal process off. You'll be shelling out for what appears to be very little movement over a long number of months with no guarantee of anything.
    That said, nothing wrong with trying for a free consultation so you've settled your mind. Nothing wrong with 'what if' floating around but I still don't think it will be good news.
    Last edited by northernladuk; 25th April 2019 at 15:44.
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    Are there any clauses in your contract about the agency not paying you if they don't get paid by the client? That doesn't help your argument either as the client will just say I'm not paying, the agent will say 'Well done you deserve a bonus, so when the client pays it, we'll pay you.
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    Prof Cunning @ Oxford Uni

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    Quote Originally Posted by northernladuk View Post
    I don't think you've got a hope in hell here and any lawyers fees are going to seriously reduce anything you get back. You spend 3k on a lawyer you get's you a 50/50 result i.e. 5k and you've got how much left.. Oh look.. 2k! And if this is stressing you out, wait until you start a legal process off. You'll be shelling out for what appears to be very little movement over a long number of months with no guarantee of anything.
    That said, nothing wrong with trying for a free consultation so you've settled your mind. Nothing wrong with 'what if' floating around but I still don't think it will be good news.
    £3k? Good luck with that!
    Try £200-400 per hour, and they charge for reading emails, answering the phone etc.
    If you end up going to court and want to do it properly, a barrister runs about £5k per day.

    And when it comes down to it, a solicitor will review what's happened and probably advise you to take the offer.
    If you ended up going to court having rejected a reasonable offer, whether the judge ruled in your favour or not, you would most likely be liable for both sides costs.
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    Quote Originally Posted by WTFH View Post
    £3k? Good luck with that!
    Try £200-400 per hour, and they charge for reading emails, answering the phone etc.
    If you end up going to court and want to do it properly, a barrister runs about £5k per day.

    And when it comes down to it, a solicitor will review what's happened and probably advise you to take the offer.
    If you ended up going to court having rejected a reasonable offer, whether the judge ruled in your favour or not, you would most likely be liable for both sides costs.
    Absolutely correct but what I am assuming here is there will be a number of letters sent between the two legal parties and a compromise will be offered well before it starts getting too silly... but absolutely yes, they can eat the value of his claim well before court.
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