Update: CM threatening to take me to court

[Needadvice2018]

Hello,

Having to redo this as last time some details were still visible .

I posted a thread the other day in both legal matters and childminders. Basically my CM has sent me a letter threatening to take me to court over unpaid childcare fees. In her letter she stated that contracted hours and contractual notice are the same thing and therefore I'm liable as I didn't give her 4 weeks term time notice. However, I've interpreted her contract to mean contractual notice must be within 4 weeks regardless of whether or not it's during term time. I also don't believe that contractual notice and contracted hours are the same thing!

Basically, what I'm asking is whether or not I've just misconstrued the terms of the contract or whether they are actually ambiguous.Any advice would be greatly appreciated thanks!

I doubt she would take you to court anyway over that

She's totally in the wrong. You gave her more notice than was required by the terms of her contract. Not your fault that she didn't understand the legal definition of the terms in her own contract.

In her letter she says that she informed you at the time you gave notice that the notice wasn’t sufficient according to her interpretation of the terms of the contract. Is that true? Probably not really relevant to the question at hand, I am just curious, but I’d imagine if she had you could have reached an agreement on this ages ago.

I too think that she has decided for herself that the word ‘contractual’ covers what she wants it to mean. I don’t think it does.

If it was an employment contract, the contracted hours would be e.g. 20hrs per week in term time and the contractual notice period would be e.g. 1 months notice. The two have got nothing to do with each other unless the notice period specifically defines or refers to contracted hours e.g. you have to give notice 4 weeks before the end of any term.

From the limited info you've posted the notice period clause aopears to be a simple 4 week period with no additional definitions but hard to conclude without reading the full contract

She’s got to wrong otherwise anyone not using her full time would have different notice periods based on her logic. She’s saying your contracted hours are your contracted period. So someone on a 100% hours 5 days) per week is 4 weeks, someone only using her services 2.5 days would have to give 8 weeks surely!

@Lostandfound81 what do you mean ignore? 

@zucchinicourgette sorry to mention I didn't think it was relevant! She messaged me back a few days after she came back from holiday. She did state that, I had asked for clarification to see if that was right but I didn't get a reply for her for ages really. It's only just come back up again now she's fishing for the money

No one on here can tell you whether she is in the wrong without sight of the full.contract: sorry. She may very well be but equally the contract could be phrased in such a way as to require notice as she says. Often i contracts there is a preamble that defines the key terms. Honestly, you need professional advice, not advice on what is 'usually' or 'morally' right or wrong.

It’s a personal letter. She’s not been to a solicitor.

Respond to a legal letter, absolutely.

Respond to a personal letter from a cheeky CM? Ignore

So your section for giving notice refers to "4 weeks contractual notice", and hers is just "4 weeks notice", but she hasn't defined what the different phrases means?

It’s so amateurish.
Honestly OP, ignore

@Violetroselily no there's no reference to any of the terms anywhere else. I'm gonna assume that's due to her believing that her contract makes sense without having to explain them (which obviously it would do to her as she's the one writing the contract).

@Lostandfound81 sorry I thought you meant to ignore my post for some reason but yes I agree it's not a legal letter. It's just her trying to threaten me so I cave and pay up.

Just send her a letter back detailing where you stand and that you've given the notice required etc. And then bill her for your wasted time and stationery costs

She has tried to send you a prior to action notice, which is needed prior to going to small claims. It doesn't need to be issued by a solicitor as this track is designed to not require professional assistance.
But from what I see she has failed to give you 14 days to clear the debt and she has failed to include set statements if you google prior to action letters there are lots of standard ones out there.
So it may not stand up in court as she has not laid out her letter correctly in addition to not understanding her own contract.

I'm a solicitor. Contractual disputes are my bread and butter. The part of the contract you have posted clearly states 4 weeks' notice, not 4 term time weeks. Your CM's contract is poorly drafted (I assume not by a lawyer). Assuming there is nothing contradictory elsewhere in the contract, 4 weeks' notice is fine. The starting point in any argument as to the proper interpretation of a contractual clause is the ordinary meaning of the words in question. 4 weeks means 4 weeks, not 4 term time weeks. As another poster has said, what your CM subjectively thought it meant is irrelevant.

Re Lonecat's post, failure to comply with a pre-action protocol will not make her letter not stand up in court. She can still issue her claim if she likes. Non-compliance with protocols can have costs consequences for the party who doesn't comply, but in the small claims court costs aren't recoverable anyway so this is a bit of a non-point. Judges don't reject claims for non-compliance with protocols, especially not when the party is unrepresented.

The reason she is unlikely to get far is because her contract doesn't appear to say what she thinks it does.

Agree with 1Wanda1. As I said on your previous thread, if she wanted four weeks term time notice she should have said so in the contract. She does not appear to have done so from the section you have posted. Unless there is something elsewhere in the contract that alters the meaning of this clause she doesn't have a leg to stand on.

I would write back saying that the contract specifies four weeks notice, not four weeks term time notice (personally, I would put in the relevant clause from the contract at this point). You have given the required notice. You will, therefore, not be paying the additional fees she is demanding and will robustly defend any legal action she may choose to take.

Do you know whether she has already filled your place? As far as I know you can't just sue because you're miffed, you sue to reclaim losses made, in this case loss of earnings. If she has filled the place then surely she has no loss of earnings to claim?

And also what Blankscreen said earlier, if a contract is unclear and can reasonably be understood in more than one way then it goes against the favour of the one who drew up the contract.

BlackAmericanNoSugar is correct: she would only be able to claim for losses anyway. Also she has a duty to mitigate any losses, which in this case would involve making efforts to fill the place, rather than simply relying on suing you.

However, I would not get into making any of those points, as doing so is likely to result in satellite arguments around those points. Your primary point - that the contract does not require you to give 4 weeks' term time notice, and you have given the contractual notice period of 4 calendar weeks' notice - is the knock-out point.

This is the full contract. As far as I can see there is no explicit reference to contractual notice needing to be 4 weeks term time, unless I've missed something really obvious?

I genuinely believe she thinks that contractual notice means you have to give 4 weeks notice within her contracted hours.

But it doesnt at all - and I think you simply need to respond with that point. You have given the contractual notice of 4 weeks. She has simply miswritten the contract

There is nothing on those screen shots you have sent that even mentions that she looks after your child term-time only. It's very badly written. If I picked that up, I would think she looks after that child Monday-Thursday, 9.00am-3.00pm, which is 24 hours per week, all year around.

The contract says 4 weeks notice, so if you have 6 weeks notice, and she asks for 4 weeks notice, you've gone above and beyond. Did she ever verbally tell you she needed 4 weeks term time notice, prior to you giving notice?

I can't see anything in that document that would in any way support her argument. She doesn't have a leg to stand on.

@Lougle she's claiming that she told me at the time of signing the contract but honestly I can't remember if she did or not as this was well over a year ago. It would be very difficult to prove that she told me.

Well you know what they say about a verbal contract not being worth the paper it's written on. If it was important it should have been written into the contract.

@Lougle. Thank you so much for pointing out the thing about it not saying term time only. I've now jut discovered that she has actually added that into another contract (ie one that isn't the one I have infront of me now). The contract I posted was my original contract; however she sent me images of a contract, but the words term time have been added in. They're not the same contract.