On appeal from Employment Judge Brain
Sitting as a Judge of the County Court
The Law Courts
West Bar Sheffield S3 8PH
B e f o r e :
| METRO FINANCIAL SOLUTIONS LLP
- and –
|TENET CONNECT SERVICES LTD
8th Floor, 165 Fleet Street, London, EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Web: www.dtiglobal.com Email: email@example.com
(Official Shorthand Writers to the Court)
MR TOBIAS HAYNES (Solicitor) (instructed by FS Legal Solicitors LLP) appeared on behalf of the Respondent
Crown Copyright ©
7. The judge found that the contractual relationship between the parties was governed by a document entitled "Terms of Service 2011." The material clauses are, in my judgment, correctly identified by Mr Jory, as being: 2.12; 3.1; 3.2; 5.6 and 14. Those clauses read as follows,
2.12 The monthly charge and other charges due from the Client to TenetConnect or retainable by TenetConnect in accordance with the terms of this Agreement and the current charges sheet as revised from time to time.
3.1 In relation to the services provided by TenetConnect to the Client (and the Customers of the Client) TenetConnect is entitled to levy the charges. The Client is entitled to receive from TenetConnect the balance of Commission after the deduction of the Charges.
3.2 The amount of the Charges shall be notified by TenetConnect to Clients from time to time and shall be calculated according to the current charges sheet issued by TenetConnect.
5.6 TenetConnect may also make deductions from the Commission in respect of agreed additional charges, claw backs initiated by a relevant Institution and for any other amounts payable to TenetConnect by the Client, under the Agreement or otherwise, but which are unpaid.
14.1 In the event that TenetConnect:
(a) Incurs any liability whatsoever (whether at common law or by virtue of any legislative enactment or regulation, or by virtue of the rule or regulations of any professional or regulatory body or organisation, or by any other means); or(b) Suffers or pays any claims of any nature; or(c) Suffers any loss or damage of any nature; or(d) Incurs or pays any costs or other expenditure of any nature in respect of any act omission or representation of the client or any partner, director, employee, agent or representative of the client (including the client having acted in excess of the client's authority as an agent of TenetConnect) including but not limited to any such cost or expenditure arising out of or in connection with any complaint or disciplinary proceedings against the client relating to any business conducted by the client prior to the date of his entering into the Agreement
The client shall indemnify TenetConnect against any such liability claim, loss, damage cost or expenditure in full and on written demand by TenetConnect.
14.2 The indemnity given to TenetConnect by the client under paragraph 14.1 shall not prevent TenetConnect from exercising any other rights it has against the client under the Agreement or otherwise.
14.3 The client shall indemnify TenetConnect against any liability, claims, loss, damage cost and expenditure incurred in respect of, or arising out of, or otherwise connected with, any delay or failure by the client to observe any of the client's obligations contained in the Agreement, including in particular any failure to observe or comply with any other directions, instructions, procedures, rules or codes or standards of practice referred to in the Agreement or provided under the Agreement from time to time.
14.4 The client shall indemnify TenetConnect against any costs, charges, fees or any other losses incurred as a result of TenetConnect:
(a) complying with any regulatory requirements imposed by the FSA as a consequence of the client not complying with its obligations under the Agreement; or(b) investigating complaints made by customers of the client in respect of Business conducted whilst the client was still bound by the terms of the Agreement.
14.5 The client shall indemnify TenetConnect against any liability, claims, loss, damage, cost and expenditure incurred or in respect of, arising out of or otherwise connected with any mis-representation, negligence, dishonesty, misconduct or fraud by or of the client or any partner, director, employee, agent or representative of the client.
14.6 Any liability of the client to indemnify TenetConnect under this Agreement shall continue notwithstanding the termination of the Agreement.
"Any liability of the client to indemnify TenetConnect under this Agreement shall continue notwithstanding the termination of the Agreement."
The essence of the judge's decision are his determinations first that section 3 of the Unfair Contract Terms Act 1977 applied to clause 14 of the terms of service agreement and second, that the requirement of reasonableness imposed by UCTA was not satisfied.
The relevant parts of section 3 of UCTA read thus:
"(1) This section applies as between contracting parties where one of them deals on the other's written standard terms of business.
(2) As against that party, the other cannot by reference to any contract term -
...(b) claim to be entitled -(i) to render a contractual performance substantially different from that which was reasonably expected of him..."
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This transcript has been approved by the judge