Prolific Advice: Think your work is protected by a terms and conditions policy? Think again to avoid a costly court case
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This week, Andrew Booth, Partner at Turner Parkinson, takes a look at the legal dangers associated with agencies and other companies not protecting their work with proper terms and conditions.
A recurring issue for litigation departments in law firms is the frustration felt when faced with a client who is being sued, or wishes to sue someone, producing their “terms and conditions” of sale as the sword or shield with which the battle is to be fought.
Some clients have no such document. Their choices are usually capitulation or an unnecessarily expensive fight.
Others proudly produce a set they “took from one of our competitors” or, even worse, “got off the internet”.
The chances of these being of much use are further diminished when the client informs the already concerned litigator that “we send them out with our invoices”.
At this point, or after a bruising court appearance, I usually get a call from a colleague litigator, to the effect that although they may well have resolved the relevant dispute for the client, could I please have a look at the client's terms and conditions (or in the worst cases, draft some for them) although, they hasten to add, the client does not wish to spend much money on them. They have spent enough in court.
And the client sometimes blames the litigator (unless they have managed to snatch victory from the jaws of defeat with their legal genius) or the terrible court processes of the English Courts.
Well, if they had seen a contracts lawyer much, much earlier it is likely that the costs of the litigation would have been far less and the litigation (or craven capitulation) would have been avoided. Clients with good terms and conditions rarely go to court and, if they do, often get their costs back from the person who got on the wrong side of them.
So this is a short tale about the classic false economy, taken up by more sensible intelligent business men and women than you would believe, of not having a good set of tailored terms and conditions drafted for your business that deal specifically with your own business practices.
It is a vital, and economically sensible, step in protecting a business from bad payers, insolvency practitioners, irrational complainers and other irritants that get in the way of the fun, positive and profit-making parts of your business.