Utility price comparison site utilitybidder.co.uk has been reduced to an almost blank template over the weekend following an apparent run-in with its web developer. The developer has apparently pulled the plug on the site, leaving only an unflattering message on its home page, in what appears to be revenge for the company's …
Love the style ...
but a warning to anyone out there who might be tempted to follow suit ... in a B2B relationship, it is not a good idea to answer a breach of contract with a breach of contract. I know this because when the (luckily heavily subsidized by parent) firm I worked for encountered a "can't pay won't pay" merchant, despite wanting to pull their site, were advised by our legal bods that this might give them leverage if it ever went to court ... although their rather weedy T&Cs might have had some bearing ....
Legal bods err on the side of caution for no other reason than to get paid more and protect their ass.
The snarkiness of the message does him no favours, and the bigger problem is that designer doesn't necessarily mean host. They might well have contracted him to design a website, put that onto a host (or had it do that by giving him the password) and then he's logged into that to change the document *AFTER* the effect and locked them out of their own website. That *probably* isn't legal.
He doesn't necessarily have a *right* to do that. However, if you do not pay, there are lots of justified means of removal of the service you provided, and ways to recoup your losses beyond just what you were going to charge them. If you take your car into a garage, have work done and then refuse to pay, they can *legally* keep your car until you do - and they can even charge you for storage. My father did it many times as a garage owner, and it's completely legitimate. Similarly, if you don't pay a webhost, they can just take you offline until you do.
A breach of contract, by definition, breaches the contract. Which means there *is* no contract after that point because it wasn't fulfilled (there is an element of reasonableness but that's usually covered by a couple of polite "you haven't paid me"'s). If the company breach the contract and refuse to rectify it, you are no longer bound by the terms of the contract so long as, up until then, you'd fulfilled all your obligations under that contract (with reasonableness built in again). Otherwise, nobody would ever fulfill any contract and you'd STILL have to provide them with free goods / services.
If my bank consistently and wilfully fail to abide by a section of my contract with them, I'm no longer legally obliged to keep paying them. They *can* take me to court, try to start eviction proceedings etc. (so it's an enormous hassle) but they actually can't do much about it in a court of law if they breached the contract. So long as a court sees I was playing fair and not gaming the contract and not being unreasonable, they can't demand I carry on paying (and they end up paying to rectify all the hassle they caused). Of course, I'd be in a ton of hassle and have to change banks / mortgages, etc. and there'd be threats of *EVERYTHING* but it doesn't mean they'd see it through or that you shouldn't tell the debt collectors etc. to bugger off.
What keeps most people from questioning contracts they are in is actually hassle, not legality. Whether it's a mobile phone contract, or an airline demanding you pay hundreds to change their own spelling error, etc. the legality in almost any imaginable reasonable situation is on the side of the consumer. It might not be worth the hassle, but it doesn't mean you're wrong.
I tried to buy a phone from Three. It was a phone + contract that would have saved me money, but it actually never arrived. They wouldn't resend it. They wouldn't refund it. They wouldn't stop taking Direct Debits out of my account. I reported it to the bank as a fraudulent transaction in the end because they did not have my signature (the contract I was supposed to sign was in the box that never arrived!) and, even if they *HAD*, it wasn't signed by me, and even if it *WAS*, they had failed to deliver me a phone and/or service (they admitted themselves that the phone had never been used, and I'd actually phoned up originally to have them block the IMEI as soon as I realised it hadn't arrived so it was unusable in the UK after that). I asked to provide me with a copy of my contract which they insisted I "must have" signed to get that far but they never did so.
Then they started with the crap - they threatened legal action ("PLEASE DO!" was my response, but it never came to anything after months of constant threats), they told me I had to chase it up with the Post Office ('fraid not!), they told me I had to pay for the service even if I didn't have the phone (Nope!), they told me that cancelling the Direct Debit was illegal and a breach of contract (What contract? How so? How is you not getting a phone to arrive in comparison for your obligations of the contract?).
In the end, I refused to speak to them except in writing because they kept threatening legal action - I had to explain that and hang up each time and they'd phone me 5-10 times a day. It took weeks for them to stop calling (with me threatening to report them for harassment, especially after they'd agreed several times to never phone me again and communicate only in writing). Eventually a letter arrived, saying they were going to be so-extra-nice to me that they wouldn't charge me for the "false" Direct Debit cancellation - strange, because my bank were quite happy to take on that challenge for me, and the Direct Debit scheme would have had a whale of a time with that ("We want to take money each month for a service we're not providing and never have provided, please!").
The hassle was *RIDICULOUS*, and for a £10 a month contract. Yep. £10 a month. And the phone was worth about £30. But the point was, my contract obligations were fulfilled (i.e. they took three payments by that time (i.e. £50)), theirs weren't, so I was legally entitled to reclaim my money. Fortunately, the Direct Debit scheme works wonders for that so I just recouped all my money in one ten-minute phone call without their co-operation and then they had to do the running-around to try to get their money back.
Funnily, no court case happened and I never needed a lawyer (my invitation to them to initiate the court case on their behalf didn't go down too well). Strangely, despite their insistence, they had no contract signed by me. Weirdly, even if they DID and could prove it (which would have been a miracle), they breached it first and I was more than reasonable enough to allow them to rectify it (I wanted them to send me another phone, or just refund the £30 and send me a SIM, but they point-blank refused). My reply was along the lines of "Thank you for fulfilling your statutory legal obligations which, up until now, you have been failing to do. Now please stick your company up your ass, T-Mobile gave me a better deal and didn't threaten to sue me for their own mistakes over £10."
It's hassle that an honest lawyer will avoid (i.e. "the case is probably not viable") rather than righteousness. Righteousness doesn't pay off in the real world very often (and is rarely worth the time and hassle). But a breach of contract does just that - breaches the contract and frees you from your contractual obligations.
What a long post
to miss the point.
This was a business to business contract, not a consumer contract. Such contracts tend to have several clauses which define what a breach of contract is ... and sometimes, simple non-payment isn't there, or is anticipated with another clause - say one imposing a financial penalty on the debtor. In that case, to simply cease providing the contracted service becomes a breach of contract, and would expose the provider - even if they are owed money - to a damages claim from the client.
EXAMPLE, BSM have a contract with Acme motors to service their cars for £x a month. Written into the contract is a clause saying that in the event of a non (delayed ?) payment, then Acme motors can add £y to the bill. In this case, if BSM didn't pay, and Acme motors decided not to release any BSM cars, BSM could take Acme to court for the lost revenue.
This is a comment in the source of that front page too:
"You may wonder why this site is offline, if you are reading the source then you are most probably a web developer that has been paid to change this.
I put this here as the company in question broke our contract and left payments outstanding, as a last resort I put their site offline, what else could I do.
Make sure you are paid up front, even if you have a contract, they aint worth shit."
Will watch this one
will be interesting to see the fallout from this.
have been tempted to do the same a couple of times
Right click > View Source
You may wonder why this site is offline, if you are reading the source then you are most probably a web developer that has been paid to change this.
I put this here as the company in question broke our contract and left payments outstanding, as a last resort I put their site offline, what else could I do.
Make sure you are paid up front, even if you have a contract, they aint worth shit.
He must have decided to be diplomatic as there was an even stronger message up earlier on in the day.
"Sorry our site is offline as we refused to pay our web developer and he put this here and then changed our passwords.
You could always try calling or emailing us but its better you just go to Uswitch as they are much more professional, we suck."
Funny but self-defeating
As has been said already whilst this is pretty funny for us observers this guy hasn't really done himself any favours legally effectively holding the site to ransom.
Appreciate he was probably at the end of his tether but that's when you should turn to legal channels. There have been cases where builders destroy extensions etc for non-payment, and it gets treated as criminal damage.
end of tethre
You should turn to legal channels before you reach the end of your tether; byt the time you reach the end of your tether you cannot make rational decisions.
I don't think it's that obvious
Pardon me for not being familiar with common law (we have civil law over here instead :P), but if it's in the contract that the goods remain in ownership of the provider until the bills are paid in full, isn't that binding? And in that case, since the other party has failed to pay the contract, the site belonged still to the developer, in which case he can do with the site whatever he pleases. Or is it possible that no such thing exists in England?
The Google cache version lists JungleCreative as the developers of the website. JungleCreative's website says Ray Nimmo is the guy behind it. Might be worth contacting him :-) (He's getting his coat)
"what else could I do."
The word is, if you are owed at least 750 quid, that you submit a "Statutory Demand". This document should be prepared with the aid of a solicitor (to make sure it gets done right), and then it should be served on the non-payer (with evidence of service logged with a county court - all private detective agencies have a sideline in this kind of work). When done to an individual, it effectively says to pay up or face a creditor's petition for bankruptcy. When done to a limited company, it is the same, except that the penalty is involuntary liquidation, **no matter what the size of the company**.
Yes, you heard it right. If the largest plc in Britain owes you £750 (and you can prove it) and won't pay within the three weeks specified in the demand, you can file for them to be wound up by a court (and if they still won't pay and can't prove that they don't owe the money, the court is obliged to do it). Real companies don't let this happen, needless to say, and the arrival of a Statutory Demand usually shakes loose the money owed, unless they really don't have it.
The voice of experience speaks here of the versus-individual mode of things. The tale was long, and somewhat depressing, but with a few WTF-inducing moments to lighten the mood. Along the way I learned more than I ever wanted to know about English contract and insolvency law, and heard a full District Judge tell the debtor that she would not be able to "bamboozle" (his word) the bankruptcy hearing judge if it came to that.
"what else could I do."
You are technically right of course but no PLC would in reality be wound up that easily.
Much more likely the Judge would order a Bailiff to arrive at the company's premises and seize good to the value that are owed.
Next time you see burly men handing over paperwork in Sainbury's & walking out with loads of beer that is probably what is happening
Doesn't it depend if you're English - the developer might be anywhere in the world.
Not quite demolished
It looks to be a Drupal site, and that's just the maintenance page - so matey's merely logged on as a site admin and clicked a checkbox (and added the snottygram text)
To restore, merely log in as an admin, and unclick that box...
The _correct_ thing to have done would be to go through the whole moneyclaim path - but if the debt is more than £5k, it gets a whole chunk more involved.
@Love the style ...
Small line in the contract - 'goods remain property of XXX until paid for in full'
Site Functions are still off-line, snarky comments still in page source
If it was down, it was probably because of all the people logging on and laughing at them. The web page is back, but it just says that the site is down, and while there are no longer snarky comments displayed (at least in Firefox), they're still there if you do View Page Source, so it's unlikely that they've paid up.
Jarndyce v Jarndyce.
To take anyone to court requires so much time, effort and money, that for anything less than a third of your expected annual income it is pointless and self-defeating. The legal system really doesn't give a toss about you. They don't do justice, they do due process of law. This ensures that lawyers make money, a lot of it. For the rest of us, the legal system is just butthurt, grief and aggro, and lots of it. Even if you are the good guy. Even if you have a just cause. Even if you are standing in a pool of white light from on high with a halo and wings.
You might get some relief by posting an honest account of your experiences in a blog to prevent others from falling prey to those who screwed you, but even then, there are libel lawyers out there who will happily destroy someone for publicly telling the truth. And the bad guys might take more direct action if you upset them.
The legal system and justice are two entirely separate things. You want a world of grief and a chunk out of your life and pocket? Phone a solicitor. Otherwise, just accept that you've been screwed and walk away.
Never get in so deep that you become reliant on one deal and do everything that is humanly possible to avoid the English legal system. Even if that means handing over your hard-earned money to someone who has cheated you and watching them walk away smiling. Actually going to court as the good guy is still worse than that.
It doesn't work and they have absolutely no plans to fix it because it works for them just way it is.
"Never get in so deep that you become reliant on one deal and do everything that is humanly possible to avoid the English legal system. Even if that means handing over your hard-earned money to someone who has cheated you and watching them walk away smiling. Actually going to court as the good guy is still worse than that."
This is very sound advice. Do a few days work for a client, see if it goes OK and if it doesn't, refuse to work for them again. I've noticed that clients don't change much between a couple of days and a couple of weeks of work in their attitude.
I still set a collections agency onto them, which often means settling for less, but getting the money within 48 hours. The main thing is that because the amounts aren't that big, I'm not getting too nervous.
On the other hand, it IS possible to win cases by yourselves... As LIPs we recently won our case against a builder that did shoddy work for us, and were granted all our money back (substantially more than £5K) despite it being bounced up to the Technology and Construction Court.
Of course, actually getting the money out of an individual is proving to be somewhat more trying ....
re: so much time, effort and money
It costs from £25 to £595 to claim up to £10,000 just by filling in a form at www.moneyclaim.gov.uk
which seems like money and effort well spent to me, as long as there's a reasonable chance of getting whoever you're suing to actually honour a court order.
In it up to his neck perhaps
Umm, fairly sure there is precedent that a dev isn't allowed to interfere with the lawful business of a client so if you put a kill switch in your software product or remove a website (that isn't subject to ongoing license payments or similar) and stop them trading then you're going to find your arse in court pretty damn sharpish regardless of how much they owe you.
Having said that, good luck to the guy, some clients are out and out twats when it comes to paying up and dragging them through the courts can end up costing more in time and fees than the original work would have made.
Two wrongs don't make a right
Obviously don't know how this was done but if the developer logged into the site without the permission of the owner he is theoretically in breach of the computer misuse act. I don't agree with both sides if this is the case. Whilst the developer has a right to be paid they don't have the right to login to protected computer systems without permission, and should have either publicised that this website isnt paying its bills and then submitted a case to a court.
Actually respect to the guy for having the balls to do this. I'd say that more people should do this which would improve the employers' attitude towards paying the bills.
As for the others who call for lawyers, suit and all kinds of bureaucracy, I have to prove you wrong. First what if the programmer in question isn't even near England at all? How would he extort the money from such individuals? By catching a plane to the UK and paying a fortune to lawyers and for staying in a hotel? And even if the individual's in the UK, do you REALLY think that he should go to court over 500-750 pounds? Maybe small claims court, but still, is it worth it? It'd probably be a net loss for him anyway (due to all the costs of a lawsuit).
Once again, this solution is hilarious (especially now that El Reg has picked up on it :D), but it's also deadly effective :P
Jarndyce v Jarndyce
Speaking from personal experience, Tron's post is perhaps the most concise, the most articulate and the most accurate summary of the UK's two legal systems I've ever read. Each is worse than the other.
The utilitybidder developer has learnt at least one thing from this sorry tale - possession is nine-tenths of the law. Whispering into a debtor's ear is soooo much more effective if you're twisting it at the same time.
Where has this figure come from? Presumably the site will have taken more than about two days to develop, so it's likely that he's owed (or was owed) far more than that.
read the thread
The £750 wasn't anything to do with developer costs for utilitybidder. Someone posted that for debts of *at least* £750 you can easily issue a "statutory demand" - if they fail to pay up (or reduce the debt below £750) you can get them declared bankrupt - you may then be able to recover your money from liquidation of their assets (if any). Anyone can issue a statutory demand, no need for solicitor, papers can be sent registered post (no need for a Process Server). Problem is if they don't pay up (99% do) you have to decide whether to start bankruptcy proceedings which will cost about £800 plus a solicitor £££ (and, if proceedings fail, you pay for their lawyers too).
The assumption here is that the developer is owed more than the £750 threshold and so a statutory demand represents one of his options for "encouraging" payment.
Not for me
Can't see why the developer should resort to legal action, that's just going to cost him more, so he is more out of pocket and probably won't get anything.
At the end of the day if I don't pay my utiliity (ha!) bill I get cut off. Don't see why hosting etc is any different.
Of course I'd have been suspicious of anyone who's domain is registered to a house address with no real details.
When I did run a web design company we resorted to having stage payments for most projects as its the only way to ensure you get paid. At each major milestone an invoice is submitted and if you don't get paid you stop working (and get on with something that does pay). It also means you get paid if the client puts the project on the shelf for a number of months (or years in some cases).
Good for him
Let this be a lesson to all dev shops, never deliver a production accessible product until paid in full. Then you have no legal question and can hold for payment at will. It's simple host it on a domain and server (or hosting contact) in your name. Present, test, sign off, get paid, transfer code to production facility.
Done similar myself - it works
The legal channels are expensive and time consuming. Tried that (successfully): customer decided they didn't want an ecommerce website after we'd spent months working with them to perfect it (they were a PITA) so decided not to pay. We did get payment but only after County Court judgement and sending a baliff to serve papers (they tried to hide from him but failed). Even then we had to threaten Court involvement to get them to honour the judgement. Problem is it took hours of unpaid work assembling the case for County Court. Had we involved a solicitor their fees would have exceeded the total amount due - which we MAY have been able to recover from the client but in any case we'd still have had to assemble evidence and explain everything to the solicitor so we'd not have saved much, if any, of our own time.
We've also shut down running websites when all attempts to get paid (reminders by post, email and phone) and final warnings: "pay up by ... or your website and email will stop working".
In one case apologetic MD arrived on our doorstep an hour later with a cheque. Another got very stroppy, cited various legal issues and "will never do business with you again" - but paid (and subsequently commissioned further work).
The baliff can be fun.
So i'd target their servers :-)
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