#15446 - Defence Negligence - BPC Drafting

Claim No CYL1804

IN THE COUNTY COURT

BETWEEN:

MODERN MUSIC SOCIETY SCHOOL

Claimant

And

ACADAMY OF ARTS AND DRAMA LIMITED

Defendant

______________

DEFENCE

______________

1. Paragraph 1 of the Particulars of Claim is admitted.

2. Paragraph 2 of the Particulars of Claim is admitted save that it is denied that the letter dated 13^th May 2016 evidences any terms of the Agreement.

3. Paragraph 2 subsection (1) of the Particulars of Claim is admitted.

4. Paragraph 2 subsection (2) of the Particulars of Claim is denied except that it is admitted that the Defendant agreed to pay 120 per student member of the Orchestra. It particular it is denied that such sums were payable directly to the Claimant. Payment was due to each student member individually upon completion of the Musical’s run.

5. Further, the following were express or otherwise implied terms of the Agreement:

   1. The Defendant would print an advertisement for the Claimant in the Musical’s programme.

   2. The Claimant agreed that the Orchestra would attend rehearsals during the period 2 weeks prior to 20^th June 2016 as confirmed by Chrissie Angel on behalf of the Defendant in the letter dated 3^rd June 2016 sent from the Defendant to the Claimant.

   3. It was an implied term that attendance at rehearsals would be for such time as reasonably necessary to cover the relevant material.

   4. On or about 5^th May 2016, Edward Brice represented to Jonathan Rudd that the students of the Claimant school would possess a Grade 8 qualification in their respective instruments. It was therefore an implied term of the Agreement that the Orchestra would be reasonably capable and competent to play the required score. The Claimant did not at any time suggest that the Orchestra might fall below the required standard.

   5. It was an implied term that the Orchestra members would spend a reasonable time learning and rehearsing the score so that they could perform to a reasonable standard.

   6. In the circumstances it was an implied term that the Orchestra members would not ‘deputise’ their roles by sending a replacement to their appointments to an excessive or unreasonable level.

6. Paragraph 2 subsection (3) of the Particulars of Claim is denied. Free use of the Defendant’s theatre (“the Theatre”) on 9^th and 10^th July 2016 was not a term of the Agreement for the following reasons:

   1. On or about 5^th May 2016, Jonathan Rudd on behalf of the Defendant invited the Claimant to consider future ad hoc arrangements for use of the Theatre, subject to agreement on each booking, as an expression of the Parties’ good relationship.

   2. The booking evidenced by the letter dated 13^th May 2016 sent from the Claimant to the Defendant was therefore a separate offer of gratuity and unattached to the Agreement.

7. Paragraph 3 of the Particulars of Claim is denied save that it is admitted the Claimant purported to perform the Agreement on occasions on 7^th, 9^th, 11^th, 16^th, 17^th, 18^th and 19^th June 2016. Rather the Claimant acted in breach of the Agreement in that:

   1. In breach of paragraphs 5(d) and (e) above, the Claimant failed at all material times to provide an Orchestra of reasonable competence. On 7^th June 2016, as a result of an acute failure to prepare, the Orchestra were totally unable to play the Musical’s score to a reasonable standard. On 9^th June 2016, at least half of the Orchestra’s members were unable to play the score properly or at all. Despite Edward Brace’s assurance of improvement given to Chrissie Angel on 11^th June 2016 by telephone conversation, the unreasonably poor standard persisted at the rehearsals on 16^th and 17^th June 2016. On 18^th June 2016, the twofold incompetence of the Orchestra comprised both the individual inability of its members and a collective failure to perform cohesively. The Claimant failed to heed a final warning given by Chrissie Angel on behalf of the Defendant on 18^th June 2016, and maintained its unacceptably low standard of performance at the rehearsal on 19^th June 2016.

   2. In breach of paragraph 5(c) above, several members of the Orchestra left the rehearsal prematurely on 16^th June 2016 before covering all the necessary material which had accumulated due to the Orchestra’s incompetent standard of work.

   3. In breach of paragraphs 5(b) and (f) above, the Orchestra practised an unreasonable degree of ‘deputisation’ from 7^th to 19^th June 2016. On 9^th June 2016, numerous members of the Orchestra failed to attend and ‘deputised’ their roles to other student musicians. On 11^th June 2016, two other members had been ‘deputised’ and on 18^th June 2016 further new deputies attended. Edward Brace, on behalf of the Claimant, failed to correct the situation despite being warned on 9^th June by a telephone conversation between Chrissie Angel and Edward Brace.

   4. In further breach of paragraph 5(b) above, 13 members of the Orchestra failed to attend the agreed rehearsal on 11^th June 2016.

The cumulative effect of the numerous and extensive breaches amounted to an act of repudiation which the Defendant was forced to accept in the...