Compensation claim, what are the rules in the UK?
Thread poster: Kristina Wolf

Kristina Wolf  Identity Verified
Australia
Local time: 08:59
Member (2004)
Spanish to German
+ ...
Mar 5

Hi all,

A client of mine is asking for a compensation due to a translation which the end client deemed sub-standard. The story is a lot more complicated than that, there were more than one party involved in the project and errors were introduced at proofing stage, but what I am now interested in is the legal basis. The amount of compensation isn't particularly large.
I have not signed a particular agreement with this agency.
The agency did pay the translation in full and is now asking for compensation.
However they do not specify how the arrived at the amount they are asking for.
What I am looking for is for legal arguments that I could present (apart from the poor handling of the project management) or legal questions that I could asked re the calculation of the amount of compensation.

Thanks for any suggestions or insights.

Kristina


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Jenny Forbes  Identity Verified
Local time: 21:59
Member (2006)
French to English
+ ...
A percentage? Mar 5

I don't know what British law says about a compensation claim such as you describe.
However, it seems to me that the agency's claim for compensation is equivalent to its making a deduction from your fee for alleged poor quality. Perhaps the sum they are asking for in compensation is based on the total claimed by the end client and the percentage of "responsibility" of each of the parties to the translation. For example, if four parties were involved in the translation as ultimately delivered then, perhaps, the agency is asking you for a quarter of the total compensation claimed by the end client?


[Edited at 2017-03-05 13:03 GMT]


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Sheila Wilson  Identity Verified
Spain
Local time: 21:59
Member (2007)
English
+ ...
I don't know about the UK either Mar 5

Kristina Wolf wrote:
A client of mine is asking for a compensation

Asking? That sounds like an amateur try-on. They clearly aren't sure of their rights or they'd be demanding it.
due to a translation which the end client deemed sub-standard.

That is legally irrelevant. You didn't have a contract with them.
there were more than one party involved in the project and errors were introduced at proofing stage.

You can't be expected to be responsible for the work then.
The amount of compensation isn't particularly large.

That surprises me too. Clearly they haven't taken legal advice.
I have not signed a particular agreement with this agency.

So it's down to the courts. If it ever gets that far. For a small amount.
The agency did pay the translation in full and is now asking for compensation.

In that case it could be said that they accepted the quality of your work. How long ago did you hand it in?
However they do not specify how the arrived at the amount they are asking for.

Well, it's absolutely essential that they specify exactly what grounds they have for this request for compensation. The amounts can be negotiated, I imagine, but they first have to prove a need for even 1%.

I'm no lawyer but I know that UK law is based more on precedent than on rules. And nobody seems to know of any translator anywhere who has been sued successfully. It has been mentioned time and again. it seems to me that they haven't a leg to stand on. And they probably know that very well.


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Nikki Scott-Despaigne  Identity Verified
Local time: 22:59
French to English
Contract law, tort: basic principles Mar 5

You say that "a client of [mine]", then you refer to any agency and an end-client. Your client is the agency. The agency's client is the end-client.

1) Contract law.
You had a contractual relationship with the agency. That is the case irrespective of there being any written agreement. That will form the basis of any claim for damages (damages being the term for financial compensation here). In legal jargon, there is said to be privity of contract between you and the agency. You have no direct contractual link with the end client. The client has none with you. In contractual terms, that means that a disgruntled end-client must turn to the agent if he wishes to seek damages. They will almost certainly have a written contract. That contract should set out what is to happen in the type of situation you describe.

The agent may be having to fork out to the end-client to keep him happy and to fend off a potential claim for negligence (tort, see below). As I have pointed out, there will (normally) be contractual provisions for this very type of situation. When an agent has to fork out money to keep the client happy, it is not at all unusual that they seek to recover some of that loss from the freelancer. It's pretty unfair, as the agent is there to take the rap, when the s*** hits the fan. From a freelancer's point of view, that is one of the (theoretical) advantages of going through an agent. The work is proof-read and the agent takes the brunt of any quality problems. (No judgment on the veracity of the end-client's claim here, I'm just indicating how the basic thinking is probably working in the agent's (collective) mind).

2) Tort, negligence.
Negligence depends on a duty of care being established. This is different from a contractual link and privity of contract. This means that in order to succeed in a claim for negligence against the freelancer, the end-client will need to demonstrate that the freelancer owes a them duty of care.

Where there is privity of contract between parties, there is almost always a duty of care in tort too. That is pretty logical. The difficulty arises when there is a chain, which is the case here where you have the agent as an intermediary. In law school, the professors love constrcution law/building cases to test their students' wits, as there is inevitably a whole series of chains with main contractors, sub-contractors. Unravelling the responsibilities or liabilities is tough in that sort of situation. Insurance company A turns against insurance company B, who turns against insurance company c, etc., until they finally get to the guy at the end of the line. That does not mean that Z is to take the rap for A.

Duty of care in tort is about foreseeability, reasonableness and remoteness of damage.
A basic understanding of these notions may help. The law of Australia is largely based on the system of England and Wales so you will no doubt find similar principles in Australia. Here is one professional source to help get some of the main ideas clear.

https://www.walkermorris.co.uk/publications/disputes-matter-february-2016/calculating-damages-in-concurrent-contract-and-tort-claims-contemplate-loss-or-lose-it/

3) What to do?
For the time being, if I have a correct understanding of the situation, the agent is asking its freelancer(s) to cover some of the loss they (maintain) they are having to cover. As a first reaction, I would refuse to assume to cover any of that loss. Point to anything contractual that may have been mentioned in the exchanges between you and the agency. Even if there is no formal written contract, there are undoubtedly some elements somewhere. The agency asked you to provide a service, you did so and they paid you for it. You have a contract.

The agent has acted correctly in paying you. (Non-payment is a classic sign of dissatisfaction and in fact not a good way to go). From a legal point of view, if the work has been supplied within the terms of what was agreed, then the work has to be paid for. In that respect, the agency has behaved correctly. From a practical point of view, it also suggests that the agency was in fact satisfied with your work. How come they suddenly change their mind? For sake of argument, let's say you did provide a bad piece of work. Why did they not pick it up in their proofreading/checking process? Curiously, they even say that errors were introduced at the proofreading stage! Does that not then point to a failure on their behalf to perform one of their principle tasks correctly... and thereby shift reponsibility squarely back onto their shoulders?

You have already put your finger on some of the problems facing you right now. Was the service provided of poor quality? Are you liable? If so, on what basis? And to what extent? How is that liability being calculated? How is fault being apportioned? None of that seems clear yet. You cannot provide an adequate response to a question that has not been adequately formulated and with all the supporting evidence to back up whatever they are claiming.

Another notion of interest here, the burden of proof. “He who asserts must prove”. It is up to the party making the claim to demonstrate what he is claiming and on what basis X is being held liable.

A number of people are involved and knowing who did what and when will help establish where fault lies, if the quality of the final translation is indeed defective, which remains to be shown, the contract between the end-client and the agent should provide for that. It might include provisions such relating to corrective measures to be taken and who is to bear the cost. There might also be provisions regarding what is to occur in the event of any economic loss, loss that the end-client will have to prove. That's their contract, not yours; it's their problem, not yours. More than one person has played a part. It should be possible for you to show what version of the text was supplied to the agent. It should also be possible for the agent to show what version it supplied to the client. Are you able to show precisely what version of the text you supplied to the agent? Realistically, you can only be responsible for what you supplied to the agent. (That will also include any modifications that were made afterwards during any exchanges between you and the agent during the proofreading stage).

You might find it helpful to point out that you have no control over the version that is finally sent to the client. Furthermore, the responsibility will lie more heavily on the agent where more than one freelancer is working on a project. The agent has the onus of making sure the final text is coherent. That is one of his main responsibilities.

4) On a practical level
The agent is probably hitting the panic button, particularly if this is a big client for them. They won’t look good anyway itfthey say that their translators did a bad job, as the client is paying the agent to make sure the freelancers are up to it and that the work is checked for being up to standard. However, the agent may not care about that in the short term and may just want to cover some of its own losses. Morally, it’s really unfair as it means that when push comes to shove, they are not prepared to assume responsibility for the work they do, that involves checking that of others. I mean, they take their percentage, so they should do something for it and that something should include assuming some responsibility. In real life, they don’t always do that. In a cool world, they would assume responsibility for it and perhaps inform the freelancers concerned saying that they are not going to seek their services in the future. However, in the real commercial world, it does not always happen that way. When things go wrong, people prefer to pass the buck.



Professional indemnity insurance.
If you have professional indemnity insurance, you are probably bound by your policy to inform them of a potential claim. Note that this insurance may also provide legal assistance in the circumstances you describe. It is the moment to use it. If you have no written contract with the agent, if you have no professional indemnity insurance, then these are things you may wish to think about in the future.


[Edited at 2017-03-05 20:39 GMT]


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Arianne Farah  Identity Verified
Canada
Local time: 16:59
Member (2008)
English to French
Sounds like fishing to me Mar 5

Their end client may not have paid them for the translation, but that's not your problem. It sounds like they're just trying to recoup their losses, they're probably asking the editor, proofreader and QCer for the same thing, but that's part of the risk of running an agency - it's why many of us work with agencies instead of direct clients, to mitigate the risks of too little or too much workload, the risk of producing errors (since the translations will be edited) and the risk of not being paid by end clients (1 agency's known record vs. 500 end clients' unknown records). Good agencies manage all the risk for their translators, which is the way it should be - it sounds like this agency is trying to offload their risk on you.

In a nutshell, you had a contract to produce a translation, you produced a translation (your end), they paid you for the translation (their end), the contract has been executed. Whatever happens afterwards has no effect on your contract. If you want to show good will, you can offer to credit the amount to any future invoice, but my guess is that you've lost the agency at this point - either it's their regular modus operandi in which case you don't want to keep working for them, or it's very unusual and they're going for a scorched earth approach and they'll be taking you off their books.


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Daryo
United Kingdom
Local time: 21:59
Serbian to English
+ ...
One element to also take into account Mar 5

is that end-client's "dissatisfaction with the delivered translation" may or MAY NOT be founded on solid facts!

In fact, it's the first fact that should be established!

One really peculiar aspect of translation work is that often the end client is NOT in the position to correctly evaluate the quality of the delivered translation - may be totally unable to understand either the source or the target language, or even worse have only very limited grasp of either of it! And/or could be relying on some self-serving "experts", just to put some additional twist into the story.

If the "dissatisfaction" is based on someone's very poor or nonexistent grasp of either of the languages involved, [end client expecting a word-for-word translation, using Google translate as "proof" that the translation is wrong etc etc] the whole saga should end then and there!!!

If the complaint is well founded, as some would be, the next question is the traceability of each participant's contribution - the translator can only be expected to be responsible for his/her proven contribution to the end result. For example, it would be pretty rich to employ a "reviser" knowing less than the translator and then blame the translator for the end result!

Other than this additional element, Nikki Scott-Despaigne has very well summarised the situation.


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Kristina Wolf  Identity Verified
Australia
Local time: 08:59
Member (2004)
Spanish to German
+ ...
TOPIC STARTER
Thanks for all your input! Mar 6

Dear colleagues,

Thanks all for your valuable input. I re-read the agencies email and yes, they had to pay a penalty to the end-client and are asking me to cover part of it.
It's about twice as much as I got paid for the project, but still not a particularly large sum.
Given the amount of work that is going into just discussing this and reviewing the comments and so on, I am actually surprised to see they are asking for it. I think they are spending more money just clarifying the situation, but that's not my call to make.

It looks to me as thought they don't have a clear cut case. I am still debating whether to just not reply, I explained myself clearly, I don't see why I should shoulder the problems that arose due to bad proofreading, tight deadlines, bad project management and no one ever voicing any concerns or raising a query, apart from the end-client himself.

In the meantime, thanks again!


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Sheila Wilson  Identity Verified
Spain
Local time: 21:59
Member (2007)
English
+ ...
Well said! Mar 6

Kristina Wolf wrote:
I don't see why I should shoulder the problems that arose due to bad proofreading, tight deadlines, bad project management and no one ever voicing any concerns or raising a query, apart from the end-client himself.

If you do decide to reply, then a simple cut-and-paste of that would be perfect, IMHO.


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Compensation claim, what are the rules in the UK?

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