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Using the law

Q: Additional charges made by entertainer

I have hired a children's entertainer who says he will charge me an additional sum for every parent who is present at my daughter's birthday party. Can he do that?

A: From the way you have phrased your question, it sounds to me as if you engaged him first, agreed all the contract terms, and then, as an afterthought, he told you some time later that the extra sum might be payable. If that is indeed the case, then you can refuse to pay the additional charge on the ground that after a contract is concluded it is not open to one of the contracting parties to change the terms of contract unilaterally, without the other party's consent. There may, of course, be some dispute as to when you were told about the extra charge, in which case it will be a matter of evidence and who is believed, with the burden being on the claimant to establish his claim on the balance of probabilities.

On the other hand, if the entertainer was totally up-front with you about the extra charge, and made it clear to you at the time you engaged him, so that it formed part of the agreed contract terms, then I see no reason why the extra charge should be irrecoverable in law, if you incur it by allowing any parent(s) to be present. It is true that there is a body of law which renders unenforceable in certain circumstances some terms in consumer contracts, which are regarded as being "unfair", but in my view, for a number of reasons, those circumstances do not apply to your case, and in any event I am not persuaded that such a contract condition as you describe would necessarily be regarded as "unfair". After all, he is not banning parental presence but only treating any such as a method of calculating his remuneration.

If you hired him as a result of seeing an advertisement by him which mentioned his fee as a children's entertainer, but made no mention of any extra charge for parent(s) being present, he may be committing an offence under that part of the consumer protection legislation, which relates to misleading price indications, since it must have been within his contemplation that you at least, and possibly other parents of very young children, would expect to be present, not just for your children's comfort, but also to ensure that the entertainment material is not unsuitable for your offspring. In such circumstances, you could try threatening to report him to the Office of Fair Trading and see what reaction you get. On the other hand, it is not wise to alienate him in advance of his performance if you want the children to get the best out of him, and you may also find that if you alert him in advance about a potential dispute he will refuse to proceed. Any such refusal may be unlawful, but that will not be much consolation if your child's party is ruined by an inability to arrange a substitute at the last minute.

It seems to me you have two choices. Either you should accept his terms with as much resignation as you can muster, or alternatively, wait until after he has finished and then go into battle with him about any extra charge in reliance on what I have said above. It is unlikely that any such dispute would go to court, since both sides will find that counter-productive in terms of time, energy and cost over a comparatively modest sum of money. It is also to your advantage that he has a reputation to protect, and doubtless relies on recommendations for future business, so will not want word to get around about disputes over his charges. You should try being nice and polite but firm about it, and take care not to spoil the party by arguing with him in the presence of the children or their parents.

First published 4th April 2007