On a strict interpretation, under clause 1 no fees payable to you because the candidate was previously introduced by another agency. I accept all your arguments about the other agency not doing any of the work but ultimately, the candidate was introduced by the other agent.
Clause number 2, is not enforceable. Someone cannot say that they not paying the bill because there is a dispute between two third parties. It makes sense to withhold the money I might add because the last thing the employer wants to do is pay the bill from one agent only to be sued by the other agent.
I can’t see the relevance of clause 3 because presumably the role for which the candidate was introduced by agent 1 is the same as the role for which you introduced. If it’s a different role, then clause 3 means that only you get paid.
These are obviously the employers terms and whether they are effective in total are not comes down to whether the use were presented as being conditional after the agencies presented theirs.
It’s a case of “last shot wins” and if their terms were put in with their acceptance, then they are applicable. If however their terms were put in when they first asked the agencies to look for the candidate and then the agencies got their own terms signed by the employer, then they are not enforceable.
I know what you are saying that you did the work on this and the previous agent did little work but it does appear that the initial agent made the introduction. You didn’t answer the question as to why approached this particular employer what you did say that you did it at the candidate’s request albeit that the employer was on your list in any event. I don’t think that employer being on your list helps you because agencies very often have huge databases of potential employers and it would not be sufficient for that name to be on the list view to say “we would have got round to approaching them at some stage in the future in any event”.
As you said, you didn’t know that they were looking for someone until you spoke to them with the candidate’s consent. That was presumably because the candidate knew from agent 1 that the company was looking for someone albeit that agent 1 did nothing about it other than provide the introduction.
There is an argument here over whether agent 1 actually did provide an introduction or not. This is what the employer is trying to say at the end of clause 1. Just because the introduction went into a big black hole does not mean that the employer didn’t get it.
If you were made aware that this employer was looking for someone and it was at the candidates suggestion that you approach the employer and if the terms of the employer were the final terms exchanged between you, then you need to sort this out with the other agent that did the initial introduction.
Ultimately, if the three of you cannot come to an agreement, then you can’t beat each other with a stick and the only recourse would be through the courts with three-way litigation which, because of the amount of money involved, is not going to be cheap.
Can I answer any specific points arising from this?