Pre Action Protocols – what the hell are they, and how are they helpful to Wedding Suppliers?

I posted earlier in the week in #yourlegalfairygodmother Facebook group about how the Pre Action Protocols (PAP) might be a useful tool for Wedding Suppliers if you have a customer who is pressing you for a response or a repayment within an unreasonably short period of time – or is being unnecessarily aggressive about their pursuit of a repayment in this Covid 19 madness.

The PAP will not help you much if you really do owe the money back, but where there is a genuine dispute about whether a sum is refundable or not, or if a contract is truly ‘frustrated’,  it can help to slow down a rushing and aggressive opponent, who is threatening to sue you “tomorrow” without having properly undertaken any pre issue actions. That is what the PAP sets out.

So how does it apply?

Almost all claims for the recovery of money when someone alleges breach of contract are started in the County Court. Where they are issued and how they are run in the court will usually depend on the amount of money claimed. In simple terms, if your claim is below £5,000.00 it will usually fall into the Small Claims Track of the County Court.

I’m going to deal with the sorts of claim in this blog – similar rules apply for claims of a larger amount in different Tracks, but there are significant differences: so be careful!

Before someone can issue a claim for breach of contract (in the current situation, this would probably be a claim for a refund of monies already paid to a supplier for services ‘not now rendered’…) the Civil Procedure Rules  and the associated Practice Directions  set out the procedures they must follow BEFORE and once they issue a formal claim. The PAPs are set out in Practice Directions which detail their purpose, and what information needs to given to a prospective Defendant in an action by the prospective Claimant before the case is issued.

  • It includes information about how the claim arose, what the factual and legal basis for the claim is, and how the loss is calculated.
  • It puts duty on both parties to explore if the dispute can be resolved by any other method than a formal claim, sometimes called ADR (Alternative Dispute Resolution)

The main purpose of the PAP is to make prospective Claimants set out their case properly, to give a prospective Defendant a reasonable opportunity to consider their case and if they chose to take legal advice, engage in meaningful attempts to settle without the need for a court action, and to be clear about the legal and factual basis of their claim.

The CPR rules that apply to all civil actions only really kick in once the claim has been issued, but the Practice Directions and the PAP applies to pre issue behaviour.

There are some specific PAPs which apply to different sorts of claim – probably the most commonly encountered one for small businesses is the PAP for debt claims which MUST be followed where a business may have provided goods and/or services, invoiced for them, but has not been paid – you can look at that here.

There is NO specific PAP for a small claims action, but the court has a Practice Direction that applies to any claim where no specific PAP exists – it can be viewed here – and it will expect parties to comply in a way that is proportionate to the complexity and value of the claim ( put simply if the claim is for a small and simple amount you need to have less pre issue activity). Most importantly if a party does not comply with the Practice Direction, it sets out what sanctions the court could impose.

If you have a customer who is aggressively threatening a claim, and giving you unreasonably short timelines for response, you may like to remind them of the obligations under the PAP in words something like this:

I understand that parties to a potential claim should comply with the Practice Directions, where relevant, the correct Pre Action Protocol,  and the Civil Procedure Rules, and must set out the legal and factual basis of the claim, and any defence, and try to see if a settlement can be reached, and to avoid unnecessary litigation if at all possible.

I am trying to comply with these rules and you also need to comply with your obligations under the Practice Directions before you issue a claim in the court. There are consequences for non-compliance. I will draw this correspondence and any other pre action behaviour to the attention of the court if a formal claim is issued.

Other helpful info on money claims on line can be found here: https://www.moneyclaim.gov.uk/web/mcol/welcome

Remember: some words of warning:

  • The Small Claims Track is designed to be a forum for parties to claim without using lawyers, and is, in many ways, a simplified process and a bit of a ‘down and dirty’ way to get to a judgment.
  • A party can bring a claim for breach of contract at any time within 6 years of the date of the breach – in simple terms – so any formal claim arising from a dispute does not need to be issued immediately, or even this year.
  • The Court Service and the Claims Online Service are currently struggling with the effects of Covid 19 too, and most civil processes have been interrupted or suspended so that the court can concentrate on only vital hearings and processes.
  • Please check carefully if you are intending to issue a claim, or if you have received notification of a claim against you, to ensure you comply with any deadlines by which you may have to act. There MAY be changes as a result of the limitations imposed on the Court Service: PLEASE CHECK

Wedding Postponements- do I need a new contract?

I’ve been getting lots of questions about wedding postponements, so let’s try and be clear on this piece of advice:

If you wish agree a wedding postponement with your couple INSTEAD of a cancellation, you do not need (nor should you issue) a new contract.

  • The terms of the original agreement remain in place and the only term that is changed is the date of the delivery, and any other terms you may agree with your couples in that negotiation.
  • You MAY additionally agree to change payment terms.

If these were connected to your delivery date – ie Payment is due 1 month before the wedding or similar, then when you change the date of delivery the payment terms are automatically deferred, unless you agree separately to change them too.

If your payment terms were on specific dates – ie 30 April 2020 for an instalment payment – they remain as is, unless you agree something else with your couple.

  • In all other respects, the T and C’s of your original agreement are still in place and valid. If you didn’t have any – or they had mahoosive holes in them – wedding postponement is not an excuse to try to sure them up.
  • Wedding postponements are not necessarily the same as cancellations – in most cases you are transferring the sums paid to deliver the goods or services on another date, not starting again with another full payment for the services or goods.
  • You should confirm any changes to your couple in writing – email is fine – and add the words.

…in all other respects, your contract terms remain unchanged.

  • I remind you that if you seek to agree a wedding postponement, please advise your couple to tell any EXISTING wedding insurer about the changes as they may need to pay a fee and will not necessarily be covered by their EXISTING policy if you change the date, with or without notification. Couples need to CHECK the terms of the specific policy, with their broker or insurer.

A Stanford Gould, we have a range of contract templates available, and also offer a review of your current terms.

Frustration of a Contract- Wedding Cancellation FAQs

Due to COVID-19, many couples are facing a wedding cancellation. As a wedding supplier, where do you stand with this? Here are some contract FAQ’s that may help, including information about the frustration of a contract…

  • If there is a wedding cancellation on the couple’s own accord, and not as a direct result of any Government lockdown or other restriction, then I follow the cancellation clauses in my Terms and Conditions as normal, correct? 

That’s right – stick to your T and C’s!

  • If there is a wedding cancellation because of some government restriction – lockdown or public gathering restriction – what happens?

In the case of a force majeure, the contract cannot progress. A force majeure is something that is an external and uncontrollable event like government lockdown, catastrophic fire or flood,  or similar. In this case, the contract cannot be delivered, then the contract is what lawyers call ‘frustrated’ and comes to an end.

This is NOT a cancellation event and does not mean those provisions apply.

After the frustration of a contract, the starting point would be as if the contract never existed:

  • There is no longer any obligation to provide any undelivered services or goods under the contract
  • There is no longer any obligation to pay for goods or services under the contract.
  • This means (when applying first principals of the doctrine of frustration) that advanced sums paid would be refundable. No one has any previous or continuing contractual obligations.

OBVIOUSLY to be avoided at all costs where possible.

However, if some services and goods had been provided before the frustration of a contract, then there could be scope for these to be considered paid for part delivered goods or services: ‘paid for’ by the sums already paid as instalments.

This is very subjective and would have to be properly assessed on the circumstances for each customer.  

This is easier if you are a wedding planner, for example, and have provided substantive services already. It’s trickier for wedding photographers or cake makers, for example, who take a deposit essentially to keep the date free.

There is no blanket legal approach. My strong advice would be to negotiate a deal with customers on a case by case basis which will depend on some compromise that probably both parties will need to feel a little bit aggrieved by, at the conclusion.

The range of outcomes for a wedding cancellation could be:

A full or a part refund – only keeping the non-refundable deposit –offering another date for no extra fee (subject to availability)

Communication is key – the earlier you have this call, the better.

I’d also suggest that you only deal with clients on this basis at the moment who have weddings in the next 2/4 weeks.

We simply do not know what’s happening any longer term than that so that needs to be reviewed weekly – an on-going exercise – as events and the situation with government advice enfolds.

  • If I am forced into self isolation and cannot attend a wedding OR if I am in lockdown. What then?

Normally you can substitute in a contract for services even if you don’t have a specific clause in the contact – but communications to the couple are going to be key because that is all about maintaining quality.

Stanford Gould Online provide contract templates for wedding suppliers. Get in touch for a review of your current contract terms.

COVID-19 advice for wedding suppliers

If you missed our LIVE on the hot topic of COVID-19 advice for wedding suppliers – sorting the facts from the fictions here’s the link to our YouTube Channel to view it now.

Don’t forget, the key message for wedding suppliers here is to get your contractual house in order and you can start with our templates, or our bespoke services from Stanford Gould Limited https://www.stanfordgould.co.uk/

Some of the reviews:

Martin Hilary Photo: Thank you Heather, good to hear some sensible information on this!

Mark Cornwall: Nice to hear something from someone that knows their onions. Very clear. Thank you.R

Wedding Suppliers and Styled Shoots – the legal issues? PART THREE: Safety and Risk

In part three of our series about wedding suppliers and styled shoots, we are taking Safety and Risk. EXACTLY what you lovely wedding creatives want to chat about in a styled shoot collaboration…… NOT.

Let’s just quickly recap what we have learned so far- the first blog dealt with clarifying who is doing what and how the collaboration is going to work, assigning roles and reminding of responsibilities and the aims of the shoot. The second blog talked you through the delights of intellectual property and social media tagging.

This third part leads us to the one topic that wedding suppliers, and indeed most small businesses, groan inwardly most loudly when mentioned…. Safety and Risk – or put another way, insurance and health and safety. They are so important and usually the very last thing that small businesses think about (until it’s too late? …. editor) when getting all excited about the gorgeousness of a styled shoot.

Risk and Insurance is relatively straight forward but none the less essential to make sure you have ticked it off the styled shoot preparations list. At least, you should have public liability cover for your business (if not, see these blogs…) That cover will be based on the activities you undertake as part of your business, usually with prospective couples paying for your services. Check with your broker or your insurer that the activities of a styled shoot are covered by your current insurance policies. Making a flower arch to be displayed at a reception isn’t a million miles away from making a flower arch for a styled shoot, but its for a different reason and in a different context. Make sure you are insured yourself for the work you do in any styled shoot project.

Secondly, make sure the others in the project are insured – if you trip over someone else’s camera bag and break your leg – does the photographer have cover for your injuries? And thirdly – does the location that you are using for the styled shoot have or need insurance cover for its users and or occupiers  – if you fall down some tricky steps or off a ladder whilst assembling the shoot at a venue– are they insured for any losses you may incur?

Finally, on the topic of falling off ladders – I really recommend a simple Risk Assessment of the shoot. For example:

  • Are you going to be working at height? Or need to install anything at height?
  • Are you lugging very heavy items from your car to the shoot site?
  • Are you going to be using vehicles? Are you on a highway?
  • Are you going to need lighting and other electrical stuff and is it PAT tested?
  • Using candles or naked flames? What are your fire risks?

It does NOT need to be ‘war and peace’. A simple proforma of the likely hazards and risks will do and there are plenty of proformas on line to use…I personally recommend a chat with Harrier UK who are very wedding and events savvy, and the sort of H and S experts that talk plain English and aren’t ‘jobsworth’ about this very important stuff – they are user friendly and really good: so well worth a view….

BUT, I hear you cry, Legal Fairy Godmother – where do I start with this stuff??

A solution beckons. We at SGOL have created a template for styled shoots. It’s not a contract. It’s not even Heads of Terms – it’s a ‘Rules of the Game’ template to use as an aid memoire to guide you through the questions you need to ask and the agreements you need to come to prior to a styled shoot to help reduce the risk for everyone involved..

For the rest of February this is available as an exclusive offer to YLFG Facebook group members at (50% off ) a discounted price of £24.99 by emailing us at heather@stanfordgouldonline.co.uk and requesting your copy of the template.  It can be used multiple times by the same buyer but is subject to its own T and Cs which are sent on request.

If that sounds like something you could use – get in touch.

Intellectual Property- Wedding Suppliers & Styled Shoots – the legal issues? PART TWO.

So last week we looked at some of the issues around styled shoots and setting the rules out when collaborating with other suppliers. This week we are concentrating on one of the most contentious areas of styled shoots – and one of the most complex – intellectual property rights.

So I could give you a really complex precis of the law on intellectual property rights but I’m not sure how helpful that would be, but I suggest if you want to know more , this is a good basic guide: https://www.gov.uk/intellectual-property-an-overview

In practical terms here are the key issues to think about in a styled shoot context:

The photographer will own the images that are taken at the shoot. He or she will need to give each other supplier involved a license to use the images – and this license may be conditional. Typical conditions would be:

  • Non-exclusive – so others could also use the images as well under similar license arrangements
  • Non-transferable or non-sub-contractable– so you cannot grant a license  to someone else to use them without the photographer’s consent.
  • Within a territory – so this may be England and Wales, UK wide, EU wide _ be careful here with Brexit changes afoot… or world wide .

Photographers providing services to wedding couples often grant licenses to use their photographs to their  clients which are NOT FOR COMMERCIAL USE – but clearly in a styled shoot arrangement, this IS PURELY for commercial use so make sure the license terms are clear about what that may – or perhaps may, not entail. For example: the license may give you broad rights to  use on your social media feeds but you may have to get different permissions from the intellectual property owner if you want to submit the photos to Hello magazine.

What other conditions might there be? It’s a good idea to agree the way to tag or acknowledge the photographer when publishing  by agreeing the wording and the hashtag or the account to be tagged – this sounds obvious,  but there are instances of the wrong account being credited which is never good.

So what about the content of those photos? Obviously the issue of tagging the correct supplier account and the hashtags they use should also be agreed.

This shouldn’t require pages and pages of legal speak and notes – a simple bullet pointed list of likely situations or scenarios should be drawn up and then agree what can or cannot happen. Set the expectation again with something in writing. You can NEVER hope to cover off every possible things that might go wrong, but deal with the obvious risks.

And for help on this sticky problem, read on below……..

The question that often next arises is ‘Can you protect the designs the photographs show, the original and unique goods you want to sell, the creative and artistic products that you hope a styled shoot will show off so well, from copying or passing off as another’s work?’

A creator of goods will own the original design, they may also have copyright, and if copies were made of an original idea – in principal the owner of the original idea may have a claim for damages against the creator of the fake. However you might need some substantially deep pockets for this type of ligation (it ain’t cheap) and evidence of your original creation ( which means drawings, prototypes, evidence of design, the evolution of the products and the original creative inspiration)  if you want to pursue someone for copying ( breaching your intellectual property rights) or passing off. Take advice from an IP expert on these points if you think you have a potential claim.

A cease and desist letter (what’s one of those?editorhttps://en.wikipedia.org/wiki/Cease_and_desist) may be a good starting point. There are lots of google results for templates if you search these terms but take care it is one for a UK based claim (not a US one – the law is different) and it’s not a panacea of all ills, and needs to be used sparingly.

BUT, I hear you cry, “Legal Fairy Godmother – where do I start with this stuff??”

A solution beckons. SGOL have created a template for styled shoots. Its not a contract. Its not even Heads of Terms – it’s designed to be written Rules of the Game – a simple template to use as an aid memoir to guide you through the questions you need to ask and the agreements you need to come to prior to a styled shoot to help reduce the risk for everyone involved..

For the rest of February 2020 this is available as an exclusive offer to YLFG Facebook group members at a discounted price of £24.99 by emailing us at heather@stanfordgouldonline.co.uk QUOTING ref YLFG and requesting your copy of the template. Non members can also get a copy, priced at £49.99. Email us for details.

It can be used multiple times by the same buyer but is subject to its own T and C’s which are sent on request.

If that sounds like something you could use – get in touch.

Wedding Suppliers and Styled Shoots – the legal issues? PART ONE: Heads of Terms

Styled Shoots – the legal issues? Social media is full of fabulous creatives conjuring up amazing themes and ideas for styled shoots for wedding suppliers – a brilliant way of collaborating in a fun way with your fellow suppliers and showing off your wares.

Sometimes these styled shoots will be tasked to recreate an agreed themed scenario where couples can see your goods actually being used (great visual stimulus for couples to buy your lovely stuff) or perhaps a styled shoot could be an artistic license for the suppliers to create something fantastic and unworldly to appeal to not only potential customers but to create ’art for art’s sake’ style visuals for their own creative and marketing purposes.

Because these styled shoots are proving to be such great fun, and provide brilliant material for marketing for those involved, there has been a significant increase in them in recent years. They are a popular way to spend some of the low season time creating collateral for blogs, imagery for websites, magazine submissions and social media posts. And that’s all great – but what happens when there’s a mismatch between the parties’ expectations and what in fact was delivered? Or – and let’s hope not – something goes wrong on the shoot day. What are the legal issues?

My experience is that styled shoot collaborations are pretty loosely defined and rarely documented. No creative wants to curb their creative style to get a contract style document in place, do they? But is this rather short sighted and highly risky? I’d say “yes it is” and this is the first of three parts of a blog to explain why.

Getting something in writing (however simple) and setting out what the individuals in the shoot are providing and who’s paying or contributing to the costs is – in my view – an absolute minimum requirement. Recently I’ve been approached by a number of suppliers who were promised to be reimbursed expenses on a shoot but haven’t been paid. Most suppliers provide time for free, but some suppliers will be incurring potentially high expenses (think about a florist costs, for example) to bring their designed kit to a styled shoot, when no end user is picking up the tab.

Write down what was agreed – even if it is agreed NOTHING is payable.

I hasten to add this DOES NOT mean a 20 page contract with 56 appendixes and 3 months of contract negotiations… use what lawyers call Heads of Terms (HOT) – its like the highlights of an agreement without all the lawyer style clauses that create the mechanisms of the contract. An aide memoire if you like, of the really important bits:

  • Who is in the styled shoot? Don’t create a partnership by mistake…check this.
  • What are the themes or rules of the styled shoot? – You probably have a mood broad or a Pinterest board – you can reference it here.
  • Who is paying for what? And when?
  • Intellectual Property – outline the do’s and dont’s – and social media etiquette when sharing – more of this in week 2’s blog…
  • Risk assessments and Health and Safety issues – more of this in week 3’s blog…
  • Insurance considerations – we will cover this in week 3’s blog too…

A special styled shoots contract offer will follow next week

Brilliant News

You don’t even have to think about how to do this, because SGOL has a template Styled Shoot Heads of Terms Template for you AND a special offer to members of the Your Legal Fairy Godmother Facebook group for a limited time. Email me if you just can’t possibly wait another week for this legal revelation and you want details – or tune in next week to find out more.

Same Bat time, Same Bat channel (for all children of the 70’s ……)

Image courtesy of Captured by Megan Wilson https://www.meganwilson.net/contact/

Finding collaborators and supporters for success.

I was having a cup of tea with my teenage daughter this week, chewing the cud and chatting all things work, life, love and the universe. She mentioned that she was feeling a bit of a confidence crisis coming on – a few things were making her feel overwhelmed by the tasks ahead and the challenges she needs to overcome.

She wonders if she will make it… she needs some collaborators and supporters.

Much ‘Yorkshire’ (other brands are available…editor) later, and we have talked about how she will be brilliant, of course, but she needs the positive messages and confidence building that we all need from time to time.

When I mentioned impostor syndrome, she looked blankly at me. Never heard of it – yet that’s exactly what she is feeling.

Does this resonate?

Do you ever catch yourself in the mirror and think – “Good grief, how am I pulling this off? Why has no one noticed that I’ve no idea what I’m doing?”

I listened to the fabulous Victoria Knowles-Lacks last week talking about her amazing ups and downs in business and the lessons she learned about resilience, personal goals and planning, and the day to day challenges of running a business. Even the most competent looking of us, can feel vulnerable.

And how interesting that its so often the stuff that you don’t know when you start a business, that can take the greatest toll on our time and resources. Not the obvious, easy to access advice, but the tough stuff, the complex stuff, the stuff that we rarely talk about, the stuff that’s hard and difficult and often needs expert help. Like money advice, technical and strategic advice, and – dare I say it – legal advice.

So often, it’s the team you pull in around you: the supporters, the collaborators, the freelancers, the network, the fans and champions of your business that get you through. Working collaboratively – whether formally or informally, through service providers, professional services, networking contacts or just mates who are ‘in the trenches’ of small business work with you, taking each other’s experience and support and skills and knitting them into something positive and helpful  – can be powerful.

For the next few weeks, in our FB group Your Legal Fairy Godmother we are chatting about collaborations – so come and join us? Membership of the group is only open for a short while longer. Check us out?

Legal Advice for Wedding Suppliers: Thinking of putting up your prices in the New Year?

A new decade requires a new slogan. We’ve had the Nineties, the Noughties, the Twenty Tens …

What are we to call this decade? The Twenty Twenties (worse slogan ever: editor) the Roaring Twenties? (I think that may have been done already: editor) Boring Twenties? (Let’s hope not: editor) Soaring Twenties – (that’s more like it…..! )

So, to soar, you need to create more business, and more profits, so you need some strategy and some planning. A review. It’s not going to just happen without some graft, is it? Do you expect a slow start to the new decade or will the phone ring off the hook? I sincerely hope it’s closer to the latter than the former, but either way this is the time to get your administrative and operational ‘ducks in a row’ for this season : and there’s no shortage of blogs and articles and podcasts telling you why this is important. Here’s one of my favs at the min.

One strategic option: putting up your prices is a common thought for businesses at this time of year – especially out of season and before the flurry of activity that this post-Christmas engagement season brings. You need to put up your prices BEFORE that flood of enquiries (and conversions hopefully) really starts. Once you have quoted and hooked the client in on a price – there’s little room for manoeuvre.

You can only put up your prices for existing clients if your current T and C’s allow for it – or the customer agrees (you really want to ask that question?)

New clients need your revised T and C’s with your new price structure NOW – and you must include it in their proposal for your services. Here’s a handy video from me on the timing of using your client contract and when you need to provide it.

You don’t have any???

Get yourself over here for the options for template T and Cs we have… and for bespoke solutions you can check us out here.

If your T and Cs need a general spruce up or a proper legal look over to ensure that you are good to go for the new decade we have a fixed fee service to help you and lots of tricks and tips for legal questions and conundrums on our FB page Your Legal Fairy Godmother – free membership at the moment, but the doors are closing before the wedding season kicks in proper, so join now to access great advice and our usual display of selfies and pics for our events, products and general travels through the wedding suppliers world.

Bring it on 2020.

My Blog’s mic drop 2019

I’ve spent my afternoon planning next year.

Looking at who is important, what is important and where we are going in the next 12 months.

Its been exciting to see the progress of the last year – SGOL’s new and improved template offer is, in no short measure, responsible for some of that! And the fabulous Chrissie of Black Hare Marketing – without whom, none of this is possible.

THANK YOU X

Its also exciting to see what’s already in the pipeline for next year…

We have training lined up with wedding suppliers, commercial network groups, GCSE students and creatives in Nottingham – it’s a diverse bunch! And there’s new products and collaborations coming soon too, to help with your risk management, a review of GDPR and a membership offer I think will be too good to miss.

If, like me , you are yearning for Friday 20th December (What? part timer…….editor) and the rest and recuperation that Christmas brings – gird your loins and lets do this for another working week, people. If you need some inspiration…..click here.

Then let’s rest and add ‘the undone’ to the ‘to do’ pile and raise a glass to the next 12 months.

Thank you for joining us on the SGOL blog, and a very Merry Christmas to you all

With love

Heather xx

…OUT