From BBC News 19/01/15:
A five-year-old was billed for failing to attend a friend's birthday party - resulting in threats of legal action.
Alex Nash, from Cornwall, was invited to the party just before Christmas.
An invoice for £15.95 was sent by his schoolfriend's mother Julie Lawrence, who said Alex's non-attendance left her out of pocket and his parents had her details to tell her he was not going.
Alex's father Derek said he had been told he would be taken to the small claims court for refusing to pay.
Alex's parents, from Torpoint, had accepted an invitation to the party at a dry ski slope in Plymouth, Devon, just before Christmas.
However, they realised their son was double-booked and due to spend time with his grandparents, which he did.
I suppose sending an invoice is one way of doing it. (But really – what was she thinking?)
Putting the silliness of the situation to one side for a moment, could Mrs Lawrence make this claim stick? Let’s think about that one.
I think the answer’s probably no.
An action in contract would almost certainly fail for there being no intention to create legal relations, as well as there being serious doubts over the validity of both consideration and capacity (assuming, on this latter point, that it was the five year old who was entering into this supposed contract).
On the consideration point, I suppose it’s just about conceivable that a person agreeing to provide a place for another at a party, and that other agreeing to attend that party, might qualify as valid consideration. But I doubt it. Legal commentators have long observed that a court will always find consideration in circumstances in which it wants to make that finding. But I really can’t imagine that this would be one of those situations. You’d need a pretty creative advocate to even have a chance of successfully arguing that consideration can be reasonably inferred here.
So contract’s out. What else can we try?
What about tort? Would Mrs Lawrence have any better luck bringing a claim for negligence (against the parents of Alex)?
I don’t think so. Even if a duty of care could be established here, any claim in negligence would almost certainly fall foul of the general rule against recovery for pure economic loss. What a bummer.
What about a claim in restitution then (we’re really scraping the barrel now)?
But there’s been no unjust enrichment by Alex or his parents. Another dead end.
I think we’re out of options, folks. At least I can’t think of any.
So what might Mrs Lawrence have done differently?
I suppose she might have agreed with Alex’s parents that if he didn’t show up for the party, they’d pay her the relevant admission fee, and she could have recorded that agreement in a deed (correctly executed of course).
But short of that, I think she’ll have to whistle for her money.
And now the media have gotten hold of the story, her plan to try and recover that fifteen quid has backfired spectacularly.
Oh well. You can’t win them all.