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Legal Eagle

The Public

Q: Unsuitable material (fees)

I hired a professional comic for our church fete on the understanding he would perform a decent family Show. We are not prudes but his material was totally unsuitable for our mixed audience and not what I was led to expect. Do I have the right to refuse him at least part of his considerable fee?

A: You refer to an "understanding" and "not what you were led to expect" which seems to indicate that there was some discussion between you and the entertainer regarding the nature and content of his act at the time you engaged him.

If he expressly agreed at that time to exclude any material which could possibly cause offence as part of a decent family show at a church fete, and failed to do so, he would, clearly be in breach of contract.

Indeed, even if there was no express agreement on the subject, such a term can be implied into the contract if it represents the obvious but unexpressed intention of the parties, i.e. if an officious bystander who might have been present at the time would have said words to the effect "Yes, of course! That is so obvious it must have been intended."

Accepting your description of the material as "totally unsuitable" the difficulty is to assess damages for the breach of contract. Most of the cases on damages for inconvenience and distress relate to physical inconvenience and distress, and anyway the audience was not a party to the contract.

Nevertheless, would advise that you discuss the matter with the entertainer concerned and endeavour to agree a reduction in his fee. If he will not agree then I would suggest you still withhold part of his fee and leave it to him to take the initiative of pursuing a claim if he so desires. It is a bit risky but I think you would have the sympathy of the court and would be able to call members of the audience as witnesses which would not do the comic's reputation any good. However, keep it away from the lawyers or it will cost you more money in the end.

First published April 1995