Solicitors in Westminster, London
Can My Child's Prep School Sue Us and Send the Bailiffs Round?
Ed Macey-Dare, a partner in the disputes team, had an article published in the Financial Times:
We withdrew our daughter from a prep school and gave notice at the end of last term. We have been hit badly by the crisis financially and the prep school had offered no satisfactory online teaching before the end of term. It is still demanding that we pay the fees for this term as it normally requires a term’s notice. Does the school have a legal right to insist we pay when it is offering a service differet from the contracted one?
Many school trips and clubs were cancelled, which It will not refund to our bank account. Instead it is setting it off against this term’s fees. What is our position, given that we have now left the school? Can they sue us and send bailiffs to recover costs?
The starting point is to check your contract with the school - in particular, the sections dealing with tuition and fees. Obviously, tuition is the main thing you are paying for and the legal position is that if a school is not providing the level of tuition envisaged and agreed by the parties at the outset, then that may open up a claim for breach of contract - even though that breach is the result of a government-imposed shutdown – and a claim for damages. However, the precise terms of the contract will determine the extent of the school's obligations to you.
Furthermore, given that you have paid in advance for school trips and clubs which have now been cancelled, where the school has not incurred that cost, the school is liable to repay you those pre-payments in full.
Given that you withdrew your daughter at the end of the Easter term without giving the contractually agreed minimum notice period, on the face of it you are in breach of contract and thus liable for payment of 1 term's fees. That said, you may be able to defend any claim on one or more of the following grounds: a) a failure of consideration by the school (i.e. the school has failed to confer the benefit which it promised – which, potentially, could even render it liable to repay at least part of the Easter term's fees); b) claiming repayment of all pre-paid sums; c) asserting that the requirement to pay one term's fees for failure to give a clear term's notice is not a genuine attempt by the school to pre-estimate its loss caused by that specific breach (termed a "liquidated damages" clause) but rather a penalty, which would render it unenforceable; and d) claiming damages for breach of contract (because, as a result of the closure, the school is not providing its agreed level of educational provision).
If the school wishes to sue you, it will first have to send you a pre-action protocol letter setting out its claim in full. My advice would be to seek legal advice at that point, with a view to your solicitor sending a robust letter in response, denying liability and asserting your various counterclaims (some of which will be stronger than others). At the same time, your solicitor could also write a "without prejudice" (i.e. off the record) letter, perhaps offering to drop your various counterclaims provided the school agrees not to pursue you further.
If the above strategy fails, the school commences legal proceedings and you decide to contest, you would defend the claim and bring a counterclaim for your own claims in the same document (called a Defence and Counterclaim), pleading the right of equitable set off (i.e. the ability to deduct from any amount that the court decides that you must pay the school, whatever amount the court holds the school must pay you).
Edward Macey-Dare is a litigation partner at specialist education law firm Lee Bolton Monier-Williams LLP.
The contents of this article do not constitute legal advice and are provided for general information purposes only. The contents are copyright of Lee Bolton Monier-Williams LLP. All rights reserved.