‘I’ve been getting the run around from an agency and a client; the agency arranged an interview in Germany
and said the client would pay. I
arranged the flights myself; at the
interview the client said to send the bill for expenses to the agency. That was 13 weeks ago, and still neither has
paid – each tells me to stop pestering them, and claims it’s down to the
other.’
It’s my experience that where two parties each try to pass the buck to
the other, the best tactic is simply to go for both. So we need to find a way to base claims against both the agency
and the client – and then to make clear to both that you will not simply let it
drop. At that point I suspect they will
find a way to agree between them which should bear the cost, and one or other
of them will pay you.
In this industry we use the term ‘agent’ in a fairly broad way – the
person we think of as the agent is in fact a man-in-the-middle, an independent
business in his own right, making money by acting as an introducer and
facilitator, and not owing any particular duties to anyone, over and above
those expressly accepted in the contracts he enters. He’s not generally an agent, in the legal sense of the term.
Certain types of relationship are recognised by the law as having
particular characteristics; once those
characteristics are established, other legal consequences automatically follow,
as a result of the intrinsic nature of the relationship, even without specific
agreement between the parties. Some of
those legal consequences only affect the parties themselves –others also affect
third parties.
The employer-employee relationship is a good example; where the employer-employee relationship
exists, other legal consequences automatically follow, such as a duty on the
part of the employee to act faithfully towards the employer; and also consequences affecting third
parties – if, for example, the employee is negligent in the course of his work,
and causes loss to a third party, then the third party can sue the employer
directly, under a principle called ‘vicarious liability’ – an employer is
liable for the torts (negligence is a tort) of his employees in the course of
the employee’s duties.
Another such relationship, less well understood by non-lawyers, is the
relationship of agent and principal.
The essence of this relationship is that the agent is authorised to
enter contracts with third parties, which will then be binding on the
principal. And so far as third parties
are concerned, where an agent appears to be acting on behalf of a principal,
the agent by implication warrants that what he is doing is in fact within the
scope of his authority – the third party does not need to specifically check
the actual scope of the agent’s authority.
In most situations in this industry, the person we think of as an agent
is not in fact acting as an agent in the legal sense of the term - but here, I
think it is clear that the agent was acting as agent-in-law for
its principal, the Client. The agent,
on behalf of the Client, asked you to
attend an interview with the Client, and told you that the Client would pay
your travelling expenses. You agreed,
arranged your flights, and attended the interview. Clearly I think we have a contract formed, between you and the
Client, via the Client’s agent. So you
have a clear contractual basis to claim against the Client.
However, the Client says it’s down to the agent – in effect, the Client
is saying that the agent did not have its authority to make the arrangement on
its behalf. I don’t see that that can
really stand up – but it does give you the grounds to also take action against
the agent, because we would say that by entering the contract, the agent was by
implication warranting to you (as a term of the contract) that he had authority
to enter the arrangement on behalf of the Client – and if he did not in fact
have that authority, then he would be in breach of that warranty. So we have also have the legal basis for
making a claim against the agent.
Now, since we have the right to claim against both of them, it also
follows that we can do so by bringing one claim rather than two – and since the
claim against one of them (the agent) is clearly one where the English courts
have jurisdiction, it follows that we can also sue the German client in the
English courts.
From a practical point of view, you now need to write once more to both
agent and Client, spelling out that unless your expenses are paid within (say)
seven days, you will commence legal action against both of them in the English
Courts. I strongly suspect that once
each sees they will no longer be able to pass the buck to the other, one of
them will finally pay you.
So the simple answer is to sue both - and to do it in the UK.
But of course, all this could have been avoided if you had insisted on
the agency providing you with the ticket, rather than buying it yourself!
21st
July 2000
I'd really appreciate your feedback on this FAQ - so mail me and tell me what you think of it, if it's been useful to you, or let me know of any specific problem you have where I may be able to help.
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