Probate Wills and Trusts Department Terms & Conditions of Business. Information Booklet effective 1 October Contents

Transcription

1 Probate Wills and Trusts Department Terms & Conditions of Business Information Booklet effective 1 October 2013 Contents 1. Preliminaries 2. Terms and Conditions of Business 3. Storage of Papers and Deeds 4. Termination of Retainer 5. Limitation of Liability 6. Data Protection 7. How we deal with problems 8. Money Laundering Regulations and Proceeds of Crime Act Insurance Mediation 10. Third Parties 11. Force Majeure 12. Monies held in our Client Account 1. Preliminaries 1.1 QualitySolicitors Copley Clark is a trading name of the Limited Liability Partnership, Copley Clark LLP registered in England and Wales with number OC and regulated by the Solicitors Regulation Authority with number A list of Directors (members) is open to inspection at the Registered Offices 36 Grove Road Sutton Surrey SM1 1BS. Our switchboard number is and our address information@copleyclark.co.uk. 1.2 The Lawyer handling your case may make reference to this booklet from time to time when writing to you or talking to you about your case so it is very important that you keep this booklet in a safe place. 1.3 The terms and conditions (section 2) govern our retainer as your Lawyers and we draw your attention to our requirement that you complete and sign the separate Client Information Form which accompanies this booklet. The retainer and any dispute or claim between us arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Law of England and Wales

2 2. Terms and Conditions of Business The purpose of this note is to explain to you, our Client, the standard of the service which we are committed to provide, the co-operation that we will seek from you and the basis upon which we will deal with your case and charge you for the work that we do. To avoid any future doubt we would like you to sign and return the Client Information Form which we have given you although in the absence of any specific rejection of these terms we will proceed on the basis that they are accepted in full. 2.1 What you can expect of us Your matter will be assigned to a Lawyer within one of our Probate, Wills and Trusts Teams based at Sutton or Banstead Your Lawyer will have had appropriate training and experience in the relevant field of law You will be given the name of your Lawyer and his/her colleague (the Support Worker ) who will be able to assist you with routine matters and when your Lawyer is unavailable. We will try hard to avoid changing the people who handle your work but, if this cannot be avoided, we will inform you promptly who will be handling the matter and why the change was necessary Your matter will be afforded due priority by your Lawyer. You will understand that all our Directors and Executive staff maintain a very full case load. From time to time urgent matters will arise on other cases which will prevent us from giving your case immediate attention. We will never lose sight of the fact that your matter is of the utmost importance to you, but we do seek your understanding that by virtue of the work that we do, we may have to give other Clients work priority for a limited time. However, we will not allow this to prejudice your case. Our aim is to answer your correspondence within 2 working days of receipt, preferably with a full reply, but where this is not possible we will write to you within the 2 working days to let you know the time within which you can expect a full response from us Any work that we do for you may involve tax implications or necessitate the consideration of tax planning strategies. We may not be qualified to advise you on the tax implications of a transaction that you instruct us to carry out, or the likelihood of them arising. If you have any concerns in this respect, please raise them with us immediately. If we can undertake the research - 2 -

3 necessary to resolve the issue, we will do so and advise you accordingly. If we cannot, we may be able to identify a source of assistance for you If you feel that the service we provide falls short of our commitment as set out in this note, or of the standard which you feel entitled to expect, please tell us. You should write to your Lawyer, the Head of Team or our Client Services Director (see paragraph 7.3). If, however, you find our service satisfactory or (we hope) better than this, we do ask that you consider recommending us to others Solicitors are bound by the Solicitors Code of Conduct 2011 and subject to the authority of the Solicitors Regulation Authority. Sometimes that Code obliges us to take action in ways which you might perceive as being other than in your own best interests. You can access the SRA Handbook (which incorporates the Code of Conduct) at We are committed to promoting equality and diversity in all of our dealings with clients, third parties and employees. Please contact us if you would like a copy of our policy in such matters. 2.2 What we will expect of you It will help us to deal more effectively with all clients' cases if you address general and routine telephone enquiries to the named support worker rather than your Lawyer. It may also serve to keep your costs down We ask you to give us the information and instructions that we request of you promptly, in order that we may deal with your case as effectively as possible We ask that you settle our accounts promptly. 2.3 Our policy in managing files It is appropriate that we make clear our position with regard to the acceptance of instructions in this matter In this particular case, we consider our Client(s) to be the person, persons or company specified on the enclosed Client Information Form. In the absence of any written instructions we will not discuss your case with any other person, save those directly involved in the matter. In particular, we will not disclose any confidential information (including details of your address) - 3 -

4 other than where this is necessary to enable us to carry out your instructions Similarly, we will not be able to give information to or receive instructions from any person other than yourself, in the absence of your specific written instructions In the case of Companies and Partnerships we will accept instructions from any Director or Partner, unless you provide us with written instructions to the contrary. Our client is only the person or entity designated in our retainer slip, and not its affiliates (whether shareholders, parent, subsidiaries, partners, members, directors, officers or otherwise). Accordingly for conflict of interest purposes, we may represent another client with interests adverse to your affiliates. Our engagement for you does not create any rights in or liabilities to any of your affiliates You may of course authorise us to disclose information to and receive instructions from any person on your behalf. If you wish us to deal with any other person in this way then please confirm the position to us in writing We will take notes of meetings and telephone calls to ensure that the fullest possible information is kept on your file so that any of our staff who may deal with the matter for you will be able to understand the position and advance your case as quickly and efficiently as possible We will endeavour to keep you fully informed as to the progress of your case. In particular we will supply you with copies of all important correspondence and documents that we send or receive We will aim to communicate with you by such method as you request. We may need to virus check disks or . Unless you request otherwise, we will assume that you consent to our communicating with you and others by fax or . However, we cannot be responsible for the security of correspondence and documents sent by fax or . Where we use ordinary mail, other than on purely routine matters, we will correspond with you by first class post Sometimes we may ask other Companies or people to do typing, photocopying or other work on our files to ensure this is done promptly. We will always seek a Confidentiality Agreement with these outsourced providers. If you do not want your file to be outsourced, please tell us as soon as possible

5 2.3.9 External Firms or organisations may conduct audit or quality checks on our practice. These external Firms or organisations are required to maintain confidentiality in relation to your files. 2.4 How we calculate our charges We appreciate that our clients like to know in advance how much the work will cost. However, this is frequently not possible because the amount of work required will be dictated by the responses of others and difficulties encountered as the matter develops Notwithstanding the difficulty in estimating our costs we will always try to give the best estimate that we can Our initial estimate will, of course, be based on the information that you have given us and may be subject to variation if unknown factors emerge which complicate the transaction. We will review our costs estimate whenever we submit an account to you (see para ) or at least every six months. You will be advised if any unforeseen complications arise which require us to increase our estimate of costs Our professional charges are calculated by reference to the amount of time spent on your case. Time spent will include meetings with you and perhaps others; considering, preparing and working on papers; correspondence and making and receiving telephone calls; any work undertaken in complying with the Money Laundering legislation and regulations. Each of our Lawyers is allocated a basic hourly charging rate. The current rate for your Lawyer is set out in the enclosed Client Information Form Where one or more of our directors are appointed as Executors, our charges will also include a value element, to reflect the fact that we are responsible for the valuable assets in the estate. This charge is a total of the percentages of the relevant values of the assets, as at the date of the application for a grant, as set out below: 0.5% of the value of the deceased s share in their residential property; plus 1% of the value of all other assets (including land/property) owned by the deceased

6 The value element is charged only on those assets which pass under the terms of any grant and will not be applied to any asset which passes to another person by right of survivorship, such as a house owned in joint names as joint tenants or money which is in a joint bank account. This is consistent with the guidelines in the case of Gemma Trust v- Liptrott (2003) (a decision of the Court of Appeal) We reserve the right to review our hourly rates periodically. We will notify you of any variations in the applicable rate for your Lawyer and the support worker As the case progresses, the Lawyers who work on your file keep a record of the time that they spend at Court, on meetings, telephone calls, (whether made or received), correspondence and drafting and considering documents and so on. This includes time spent preparing notes to record matters discussed over the telephone and at meetings. Each hour is divided into ten "units", each unit representing a period of work of up to six minutes. Routine letters and telephone calls are each charged as one unit and other work by reference to the number of units spent. We also charge for the cost of photocopying where the amount of copies taken at any one time exceed one hundred sheets. Your bill will reflect the work done and the applicable charging rate of the Lawyers who have worked on your case Where the work involved is travelling or waiting, the hourly charging rate is reduced by approximately one third. If, however, any part of the work is particularly complex, relates to a claim of considerable value, has had to be done with more than usual urgency, or has achieved an exceptional outcome for you, the rate (in respect of that work only) will be increased by up to a third. We will always notify you when we feel that an enhanced rate should apply In the event that for any reason we have to arrange the cancellation of a cheque whether sent to you or to any other person whilst we are acting for you, we reserve the right to charge an administration fee of up to 30 plus VAT in respect of each such cheque We accept credit or debit cards for the payment of our costs and disbursements but reserve the right to make a charge when they are used, to offset the charge that the bank applies to us. You can pay our invoices or make payments on account of costs by making payments directly into our Client Account (details on - 6 -

7 request). Please note that our bank will levy a charge on payments made directly into our account if they are received from a bank overseas. We reserve the right to recover any such charge from you If you are unhappy with the amount we have charged, you have the right to complain to us about your bill. You may also have a right to apply to the Court for our bill to be assessed under Part III of the Solicitors Act 1974 although if you choose to do so this will affect your right to ask the Legal Ombudsman to deal with any complaint about the bill. 2.5 When we ask you to pay us Naturally, you will expect us to start work for you immediately and to pursue your case efficiently and effectively. We will be pleased to do this, but of course you will be incurring costs straightaway Any money received on your behalf will be held in our Client Account. We will normally credit you with interest on any funds we hold in our client account on your behalf. Our policy on the payment of interest is as follows:- (a) (b) (c) (d) Interest will accrue at the Bank of England base rate from time to time in force. This may be less than the rate at which you could have invested the money yourself. We reserve the right to review the rate of interest payable at any time and will notify you in advance of any proposed change. We will credit you with interest if the amount of interest involved is more than 20. If we hold sums of money for you in relation to different matters we will normally treat the money relating to each of the different matters separately. When we account to you for interest this will be paid net (i.e. after deduction of tax) unless we advise you to the contrary Our accounts are payable upon delivery Unless you indicate that you do not wish us to do so we may render invoices to you by only

8 2.5.5 In Probate cases we will usually send you a bill on account of our charges and expenses after the Grant of Probate has been obtained and if we make a distribution to beneficiaries prior to the finalisation of the administration of the estate. The final account will be submitted on completion of the administration or earlier termination of our instructions In continuing Trust and Management cases we will usually submit an account on a six monthly basis and on completion of the matter or earlier termination of our instructions We will add VAT to our charges at the rate which applies when the work is carried out. Currently this is 20%. Our VAT registration number is Where sums are due it is a condition of our retainer that we reserve the right to charge interest on accounts which remain unpaid a month after delivery. The rate of interest will be that which applies, from time to time, in High Court judgements. Also, in appropriate cases we will decline to progress the matter until outstanding accounts are paid In the event that we reach agreement with you that we will not deliver interim bills to you but instead will wait until the matter has been concluded before delivering a final account, all work undertaken throughout the case will be charged at the hourly rate applicable to the Executive or Executives concerned at the time the bill is delivered. 3. Storage of Papers and Deeds 3.1 Both during and after completing your matter, we are entitled to keep all your papers and documents while there is money owing to us. We will keep our file of papers (except for any of your papers which you ask to be returned to you) for no more than ten years and on the understanding that we have your authority to destroy the file ten years after sending you our final bill. We will not destroy documents you ask us to deposit in safe custody. 3.2 If we retrieve papers or documents from storage in relation to continuing or new instructions to act in connection with your affairs, we will not normally charge for such retrieval. However, we may make a charge based on time spent producing stored papers or documents to you or another at your request. We may also charge for reading, correspondence or other work necessary to comply with the instructions given by you or on your behalf

9 4. Termination of Retainer 4.1 You may terminate your instructions to us in writing at any time but we will be entitled to keep all your papers and documents while there is money owing to us for our charges and expenses. If you or we decide that we will no longer act for you, you will pay our charges and expenses as set out in paragraph If we do not meet with you, The Consumer Protection (Distance Selling) Regulations 2000 will apply to your matter. This means that you have the right to cancel your instructions to us within seven working days of receiving this booklet. You can cancel your instructions by contacting us by post or by fax to this office. Once we have started work on your file, you may be charged if you then cancel your instructions. 4.3 We may also decide to stop acting for you but only with good reason. For example, we can decline to act if you do not pay our bills or if you fail to provide us with instructions or if we know that the instructions you have provided are false. Also, the Solicitors Code of Conduct will prevent us from acting further if we discover a conflict of interest or in other circumstances. In any case, we must give you reasonable notice of our intention to cease acting. 4.4 On termination you will remain liable for our full charges and expenses. 5. Limitation of Liability 5.1 We limit our liability to you for claims for breach of contract, breach of duty, negligence and for claims otherwise arising out of or in connection with our engagement or the services we provide, in the ways described below. 5.2 Our liability to you shall be limited to 3 million or such higher amount as is set out in the letter accompanying these Terms of Business. 5.3 This liability cap will apply to our aggregate liability to you together with any associated party for whom you are acting as agent in relation to the relevant matter on any basis. 5.4 In addition to the other limitations in this document, where we and/or third parties are responsible for any loss suffered by you, our liability for that loss will be limited to a fair proportion of your total loss calculated by reference to the extent of our responsibility. If you have engaged others to represent or advise you on a matter in which we are involved and you agree with any of them that their liability to you will be limited, in order that our position is not adversely affected by any such limitation of their liability, you agree that our liability to you will not - 9 -

10 exceed the amount which would have applied in the absence of that limitation. 5.5 If you start proceedings against us for loss or damage and there is another person (for example, another adviser) who is liable (or potentially liable) to you in respect of the same loss or damage, then you will (if we so request) join them into the proceedings. This is subject to any legal prohibition against your joining them in that way. 5.6 We have an interest in limiting the personal liability of employees, consultants and directors. Accordingly you agree that you will not bring any claim against any individual employee, consultant or director in respect of losses which you suffer or incur, arising out of or in connection with our engagement or the services we provide. The provisions of this paragraph will not limit or exclude the firm s liability for the acts or omissions of our employees, consultants or directors. This clause is intended to benefit such Directors, employees, agents or consultants who may enforce this clause pursuant to the Contracts (Rights of Third Parties) Act 1999 ( the Act ). Notwithstanding any benefits or rights conferred by this agreement on any third party by virtue of the Act, the parties to this agreement may agree to vary or rescind this agreement without any third party s consent. Other than as expressly provided in this agreement, the provisions of the Act are excluded. 5.7 The above exclusions and limitations will not operate to exclude or limit any liability which cannot lawfully be limited or excluded. In particular they do not limit liability for fraud, nor for causing death or personal injury by negligence, nor for negligence in contentious business, insofar as the Solicitors Act 1974 s 60(5) precludes the exclusion of such liability. 6. Data Protection 6.1 As a result of your instructions, we will be collecting and processing personal data, including names, addresses, dates of birth and financial information (this list is not exhaustive). 6.2 Such data will be used and retained for the following purposes: conducting your case (including disclosure to third parties who we employ for the purposes of your case) advertising and marketing to you our business, activity and services and promoting public relations (including keeping you informed of developments in our services and the law) which may include newsletters, legal guides and information as well as invitations to seminars, receptions, events and special offers

11 which we may provide jointly with third parties and to whom therefore your personal information may be disclosed for such purposes keeping and maintaining accounts and records of your business with us. 6.3 For the above purposes we would like to pass your details to QualitySolicitors who may contact you in order to obtain feedback on our service to you and also to inform you of promotions and news regarding us and other QualitySolicitors Firms. 6.4 By signing our Client Information Form you will be consenting to the collection and processing of such personal data for the purposes described above. If you would prefer that we did not pass your details to QualitySolicitors please tick the appropriate box on the Client Information Form. 6.5 The name of the Data Controller is QualitySolicitors Copley Clark and the name of our nominated representative is Neil Hughes. 7. How we deal with problems 7.1 Even in the best run practices problems and misunderstandings can arise. We hope that should these occur we can address the matter and avoid it interfering with our effective handling of your case. If we fall short of the standards we set then we will apologise and try to avoid any loss or prejudice on your part. 7.2 If you consider that you have a problem with the service which we are providing (including any concern about a bill), as a first step you should write to your Lawyer setting out your concerns. 7.3 If the matter is not then resolved to your satisfaction, write to your Lawyer s Team Leader or, if these are one and the same, to the Firm s Client Services Director. The names of these people are set out on the Client Information Form which we have given you or we can confirm their details if you telephone us. 7.4 We will try to resolve any problem quickly and operate an internal complaints handling system to help us resolve the problem between ourselves. If for any reason we are unable to resolve the problem between us, then, provided you are not a large Business, Charity, Club, Association, Society or Trustee of a Trust with an annual income, turnover or value (as appropriate) of 1 million or more, you can ask the Legal Ombudsman at PO Box 6806, Wolverhampton WV1 9WJ or enquiries@legalombudsman.org.uk or on telephone number

12 0333 to consider the complaint. Normally you will need to bring a complaint to the Legal Ombudsman within six months of receiving from us our final written response about your complaint. 7.5 We will supply you with a copy of our Complaints Procedure upon request. 8. Money Laundering Regulations and Proceeds of Crime Act These place onerous obligations on us to ensure that we are not unwittingly drawn into transactions designed to launder money which is the proceeds of crime. The Law requires Solicitors as well as Banks, Building Societies and others to obtain satisfactory evidence of the identity of their clients. It may also be necessary in some cases to verify the identity of the beneficial owner of property or assets. 8.2 We may carry out an electronic search against you and any other person or organisation that we may consider necessary in order to comply with our obligations under the legislation. We reserve the right to charge for any work undertaken to ensure compliance with the money laundering legislation. There will be a charge of 6 plus VAT for each search that is made. By accepting these Terms and Conditions of Business you will be giving your consent to our carrying out such checks and searches that we may consider necessary. 8.3 Please do not send any funds to us until the verification and identification procedure has been carried out. 8.4 Solicitors are under a professional and legal obligation to keep the affairs of clients confidential. This obligation, however, is subject to a statutory exception. Legislation on money laundering and terrorist financing places Solicitors under a legal duty in certain circumstances to disclose information to the Serious Organised Crime Agency. Where a Solicitor knows or suspects that a transaction on behalf of a client involves money laundering, the Solicitor may be required by law to make a money laundering disclosure. If that happens, we may not be able to inform you that a disclosure has been made or of the reasons for it because the law prevents tipping off. 8.5 Please note that we are normally only able to accept cash up to a limit of 600 in any 28 day period. 8.6 Where the money laundering legislation requires us to take steps, such as the making of further enquiries in order to assess risk, we will charge you for the work that this entails on the basis set out in this booklet

13 9. Insurance Mediation This firm is not authorised by the Financial Services Authority. However, we are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts. This part of our business including arrangements for complaints or redress if something goes wrong, is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Services Authority website at The Law Society of England and Wales is a designated professional body for the purposes of the Financial Services and Markets Act The Solicitors Regulation Authority is the independent regulatory arm of the Law Society. The Legal Ombudsman is an independent complaints handling service. If you are unhappy with any insurance advice you receive from us, you should raise your concerns with one of these bodies. 10. Third Parties This agreement does not create any right enforceable by any person not a party to it. 11. Force Majeure We shall not be liable to you if we are unable to perform our services as a result of any cause beyond our reasonable control. 12. Monies Held In Our Client Account We will not be liable to repay any money that we hold for you in our client account (currently held at Barclays Bank) which is lost as a result of a failure of the bank