I have written in the past about Professional Non-Payers, those who seem to seek out the newer and smaller firms, thinking they will not be able or willing to pursue a claim through the Courts.
Sometimes though, there are new levels or depths that some people will employ to avoid paying full value for work. They are so plausible, open and honest, that the unwary will not realise they have been trapped until far too late.
A married couple engaged a garden designer to create a garden at a property on a New Build site. Their request was that the designer produced the scheme and then recommended a Landscape Company to construct the garden, with the designer acting as the Overseer or Project Manager to ensure that the work was carried out to the necessary standards and designers instructions.
Once the scheme had been designed, the owners met with the designer and contractor, and Terms and Finance matters were agreed.
The owners explained that they were most anxious to have a garden designed and built that would impress their friends and family, stating that it was critical to them that the garden would have a ‘Wow!’ factor. They had chosen a design and build team to ensure that the ‘Wow!’ factor was a fundamental part of the contract.
They did not put this statement in so many words, but allowed both the designer and contractor to make their own claims and statements – as part of their ‘Sales Pitch’ marketing exercise. Both confirmed that the clients would indeed have a garden that met their wishes. No problem!
As you will appreciate reading this, there is no absolute specification to a ‘Wow!’ factor, and at the end of the job, when everything was completed that had been included in the quotation, the owners then refused to pay the final 25% of the bill because they did not feel they had what they had ordered.
All the way through the project, there had been no complaints. Interim payments were made on time, no mention of any dis-satisfaction at all until the job had reached practical completion. Suddenly, everything became a problem. The lighting was too strong and is not controllable. The fountain is too noisy and keeps the neighbours awake at night.
Why is the walling not at seat height? The white paint is too bright and hurts my eyes. The whole thing is too busy, when we wanted a peaceful garden. You said the fencing would be attractive, but it looks cheap. That rose is far too small and will never cover the pergola. The list goes on and on……
The client/designer/contractor relationship came to a sudden halt. The clients refused to talk to either the designer or contractor unless and until they came up with the promised ‘Wow!’ factor. They refused to make any more payments or have any discussions until they were satisfied.
They claimed a Breach of Contract had occurred, and they would not only make no further payment, they reserved the right to have garden cleared and started again with a new team, demanding that the original scheme be removed at the expense of the designer and contractor.
It is very important to note that as the designer and contractor were engaged as a team, they were to be treated as jointly liable for any issues that may have arisen from the scheme.
Both designer and contractor were treated as equals, despite the difference in financial outlay or income. This matter is known as a Joint or Several case, and any action taken would be issued Jointly and Severally, with both designer and contractor sorting out their own percentages at a later date between themselves.
Similarly, if either the designer or landscaper decided to sue the couple, they would have had great difficulty in progressing a case because they were acting together originally, and the owners could have asked for the case to be struck out.
I will not get too involved in Court matters, as each case is different, and if you ever find yourself in a similar situation, then you should take professional legal advice.
I would caution you strongly against making any verbal or written claims, or importantly, allowing your potential customer to make claims which you do not disclaim as unquantifiable or unable to be specified in writing. If a customer requests anything that could be misconstrued at a later date, do not allow your inner Salesperson to take over and agree to something which you may later regret.
Listen hard to what is being said, and be very firm in the wording of your quotation, allowing no room for misunderstanding.
The relationship between a designer and contractor are thrown into the spotlight in this case. Unless you are prepared to accept joint liability, insist on having your own separate contracts which are not linked in any way.
Any designer who undertakes to supervise or oversee a contract should be aware of their responsibilities to the customer, contractor and the Law, especially under recent CDM Regulations.
Unless a designer is qualified and insured, they should think carefully before undertaking Project Management of a scheme, as this is a complicated legal minefield.
Every contractor should be operating under clear Terms and Conditions. If they have been produced professionally, they will be comprehensive, allowing no room for such ambiguous and nebulous requests as a ‘Wow!’ factor.
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