Terms of Business Effective 25 November 2014

Transcription

1 Terms of Business Effective 25 November 2014

2 TERMS OF BUSINESS Effective 25 November 2014 Contents 1 Our contract with you 1 2 Wake Smith LLP 1 3 Scope of our services 1 4 Parties 1 5 Responsibility for work carried out on your behalf 1 6 Anti-Money Laundering and proof of identity 2 7 Confidentiality and conflict of interest 2 8 Electronic mail (and other forms of electronic communication) 2 9 Storage of papers and documents 3 10 Data protection 3 11 Copyright and intellectual property rights 3 12 Charges and expenses 4 13 Invoices 5 14 Your rights with regard to our invoices 6 15 Financial benefits arising while acting for you 6 16 Introductions and referrals 6 17 Consumer Contracts Regulations Limitation of liability 6 19 Termination 7 20 Our service and complaints 8 21 Third parties 8 22 Assignment 8 23 Law and jurisdiction 8 PLEASE NOTE THAT OUR LIABILITY TO YOU IS LIMITED TO THE SUM AND ON THE TERMS DETAILED IN CLAUSE 18 OF THESE TERMS OF BUSINESS

3 Terms of Business 1 Our contract with you 1.1 These Terms of Business (the Terms ) any letter confirming your instructions to us ( Engagement letter ) and Client Care Summary ( Summary ) we send you together represent the Terms and conditions of business on which we contract with you. These Terms do not affect statutory and common law rules that govern solicitors business. If there is a conflict between these Terms and such rules, these Terms will prevail so far as it is possible for them to do so. 1.2 If you provide us with further instructions about other matters, these Terms will apply to those other matters unless we agree otherwise 1.3 Your continuing instructions to us will amount to your acceptance of these Terms, the Summary and our Engagement letter. 2 Wake Smith LLP 2.1 Wake Smith LLP is a limited liability partnership registered in England and Wales under registration number OC A list of members of Wake Smith LLP is available for inspection at its registered office at 68 Clarkehouse Road Sheffield S10 2LJ. The words we, our and us used in these Terms of business refer to Wake Smith LLP and any successor practice. 2.2 We are authorised and regulated by the Solicitors Regulation Authority and our registration number is Details of the professional rules which apply to us and a copy of the SRA Handbook can be found and downloaded at We maintain professional indemnity insurance in accordance with those rules and details of our current insurers and the territorial coverage of the policy are available on our website or on request. 2.3 Our telephone number is Our fax number is Our address is legal@wake-smith.com 3 Scope of our services 3.1 The scope of our services to you is as described in the Engagement letter or Summary. We will not be responsible for providing any advice or other service outside that scope. The provisions of the Engagement letter and/or Summary will prevail over these Terms in the event of any conflict between them. 3.2 We will use all reasonable skill and care in the provision of our services to you 3.3 We will rely upon the information and instructions provided by you or by others authorised to do so on your behalf. You will provide us with timely instructions, information and materials necessary for us to perform our services to you and promptly notify us of any material changes. 4 Parties 4.1 If we are acting for more than one person or entity, or for a partnership, then each of those people, entities or partners agrees to be bound by these Terms, the provisions of the Engagement letter and the Summary and to be jointly and severally responsible for our charges and disbursements (see below) 4.2 If we are acting for a limited company or a limited liability partnership (LLP), in the event that the limited company or LLP fails to pay our charges and disbursements then the directors of the limited company or members of the LLP agree to be personally jointly and severally liable for our charges and disbursements. 4.3 Only the person(s) named as our client or clients in the Engagement letter can rely on any advice or assistance or other work that we provide and only for the purposes communicated to us. They cannot be relied upon by any other person or for any other purpose. You will not disclose any aspect of the services provided to you to any other person. 4.4 If any information given as part of our advice, assistance or other work is revealed to a third party by you, you must inform the third party that we accept no responsibility for it. 5 Responsibility for work carried out on your behalf 5.1 The person(s) who will carry out all or the majority of the work on your matter is or are shown on the Summary. We reserve the right to transfer responsibility for your matter to another person within the LLP should we consider it necessary to do so. 1

4 5.2 It may be appropriate for some work to be carried out by non-qualified personnel, such as paralegal, secretarial or support staff. All work by such personnel is performed under the supervision of a solicitor. All matters are under the overall supervision of a partner. 6 Anti-Money Laundering and proof of identity 6.1 The law requires solicitors to verify the identity of their clients and sometimes people related to them. Our practice is to electronically verify your identity and for that purpose we might ask you to produce your passport and two recent utility bills (being less than 3 months old) and other documentary evidence of ID. 6.2 In the case of a trust or company we will discuss with you whose identity we will need to verify but in most cases that will be the ultimate beneficial owners. 6.4 If the work which you instruct us to carry out includes a transaction to which you will be introducing money, we are obliged to ask you about the source of those funds. 6.5 Solicitors are under a professional and legal obligation to keep the affairs of their clients confidential. However, solicitors may be required by law to make a disclosure to the Serious Organised Crime Agency where a solicitor knows or suspects that a transaction on behalf of a client involves money laundering or terrorist financing. If this happens, we may not be able to inform you that a disclosure has been made or of the reasons for it because the law prohibits tipping-off. We may have to stop working on your matter for a period of time and may not be able to tell you why. 6.6 Where you cannot provide satisfactory evidence of your identity, we may not be able to act for you and/or receive any money from you and/or pay any money to you or to a third party on your behalf. 7 Confidentiality and conflict of interest 7.1 If you and another person jointly instruct us on a matter, you agree that there will be no confidentiality between you and the other joint client and that information you disclose to us can be shared with the other joint client. We can also share information that you provide in relation to a matter with a third party (such as an accountant or estate agent and so on) who is helping with the matter, unless you instruct otherwise. You also permit us to disclose information (in confidence) about matters on which you instruct us to our insurers, auditors and regulatory bodies. 7.2 If a conflict of interest occurs we may have to stop acting for you. A conflict of interest can arise for a number of reasons. For example: if you do not wish to allow us to disclose information that you have provided to another joint client (such as where you are buying property with a mortgage and do not wish us to disclose certain information to the lender who is a joint client with you); if you provide information to us which we must disclose to another client (in order to act in their best interests as well as yours) but you do not wish us to do so, or the other client provides information which we must disclose (in order to act in your best interest) but they do not wish us to do so; or if another situation develops where it would be a breach of professional rules for us to act for both you and another client. 7.3 In the event of any claim (including wasted costs proceedings) or other complaint being intimated or brought against us, you permit us to disclose and rely on all documents and information so that the court or tribunal has all relevant information available to it. 8 Electronic mail (and other forms of electronic communication) 8.1 By providing us with an address, you consent to us communicating with you by . may not be as secure as other methods of communication and we cannot guarantee the security or integrity of such communications. If you require a greater level of security, you must raise this with us at the outset. 8.2 We cannot guarantee that our system will be capable of sending and/or receiving messages. This may mean that we are unable to access s that you send to us or that we send to you. 8.3 We reserve the right to communicate with you by whatever means we consider are most appropriate in the circumstances. Please let us know if you require us to communicate with you in a particular manner. Unless you ask us to send letters and/or documents to you by secure or 2

5 guaranteed post, we cannot be held responsible for any correspondence failing to reach you, or failing to reach you by a specific date. This applies to all our communications with you (including by post, fax and ). 9 Storage of papers and documents 9.1 We will (subject to any lien, undertaking, or right of retention in our favour, or undertaking or right of retention in favour of any third party) store the papers and records in connection with your case not returned to you in the following ways: Original documents (as opposed to general hard copy correspondence, papers and drafts) will be stored until further notice; Hard copy correspondence, drafts and non original documents will be stored in suitable file storage facilities and destroyed after 15 years; and Electronic files and records (other than personal or sensitive data which will be dealt with in accordance with the Data Protection Act 1988) will be archived electronically and destroyed after 15 years Should you so request we will, at your expense, forward any papers, records, etc. to you or deliver them in accordance with your reasonable instructions If we take papers or documents out of storage in relation to your continuing or new instructions to act for you, we will not normally charge for such retrieval. However, we may charge you for time spent producing stored papers that are requested and reading correspondence or other work necessary to comply with your instructions in relation to the retrieved papers. 9.2 We store some of our documents in an out-sourced, secure storage facility. This creates a potential risk to the preservation of client confidentiality, although we take all reasonable steps to reduce that risk to a minimum. 10 Data protection 10.1 You must supply us with information about yourself before we can provide you with legal services. Although the information is used primarily for the provision of legal services, it may also be used when we carry out tasks to support the legal services (such as administration, invoicing and keeping client records etc). While we are performing the legal services, we can also collect or retrieve information about you from third parties How we use this information depends on three factors: the instructions that you give us; the requirements of the Data Protection Act 1998; and the duty of confidentiality that we owe to you In particular circumstances, we may disclose the information that you have provided or that we have collected or received about you to other persons and organisations. For example, this information may be disclosed to: other suppliers of professional services, such as other lawyers, accountants and expert witnesses; suppliers of administration, financial/banking and technical services; the courts and governmental and regulatory authorities; and organisations that regulate the legal profession You have the right to access any personal data that we hold about you (for which we may charge a small fee) Further details about how to do this can be found on the Information Commissioner s Office website at You agree that (unless you notify us to the contrary) we may send you from time to time newsletters or other information that we think may be of interest to you. 11 Copyright and intellectual property rights We retain copyright, database rights and all intellectual property and proprietary rights in all original material developed, designed, generated or created by us in the course of providing our services to you including systems, methodologies, software, data, know-how, documents, written advice and working papers. This includes any such material provided by us to you. 3

6 12 Charges and expenses 12.1 Our method of charging relevant to your instructions is specified in the Engagement letter and Summary. In the main, our fees will be based on the amount of time that we spend dealing with your matter, although we may agree a fixed fee with you Fees based on time The hourly rates of the person(s) who will carry out all or the majority of the work on your matter is or are shown on the Summary All time spent on your matter is recorded on our computer system in units of 6 minutes. This may include meeting with you and others, reading, preparing and working on papers, making and receiving telephone calls, s, faxes and text messages, sending and receiving letters, dictating notes of our meetings/telephone calls and about work carried out, researching, travelling, waiting, appearing in Court, preparation of detailed costs estimates, schedules and bills In addition to the time that we spend, we take into account various other factors including the complexity of the issues involved in the matter, the speed at which action must be taken, the expertise or specialist knowledge that the matter requires and, if appropriate, the value of the property or subject matter involved. Our fees may be adjusted accordingly and you will be notified of any such adjustment either at the commencement of the matter (via the Summary) or as soon as such issues arise during the conduct of the matter On 30 th April of each year, we review our hourly rates. If there are any changes, we will let you know the new rates 12.5 Fixed fee arrangements Where we agree to charge a fixed fee, you must usually pay that fee regardless of whether or not your matter proceeds as expected or envisaged, or you achieve the result or objective that you wish If we agree to work for a fixed fee, we make a number of assumptions or we specify the work that we will or will not do. Where the assumptions are no longer met or we need to do work outside the scope of that specified, it will be necessary to charge you more. We will then agree with you either a further fixed fee or to charge on a time basis; otherwise, the retainer will be terminated. The assumptions that we make or the work that we specify we will do are set out in the Engagement letter (or in another document which is referred to in the letter) 12.6 Estimated cost arrangements Where we provide an estimate of our fees that is not a fixed fee and is only intended to serve as a guide If for any reason the estimate provided becomes unrealistic, we will inform you as soon as reasonably possible and discuss what the next steps will be Conditional fee agreements 12.8 VAT If we consider that a conditional fee agreement might be appropriate for your case and we would be prepared to enter into such an agreement, we will write to you separately about the implications on our charges and expenses. We add VAT to our charges at the rate that applies when we carry out the work. Our VAT registration number is Disbursements You must pay for any expenses that we incur on your behalf ( disbursements ). These include photocopying charges, courier costs, travel expenses, overseas telephone calls, facsimile charges, professional fees of surveyors, accountants, advocates and other agents and experts, fees to central and local government, regulatory and other bodies (such as court fees, search fees, company searches etc.), charges to transfer funds by electronic or other means and banker s drafts. VAT is normally payable on these expenses. We will normally pay disbursements that do not exceed 250 without taking your prior instructions. In all other cases we will discuss with you the amount of the disbursement and why it needs to be paid and we will require you to put us in funds before it is incurred. 4

7 12.10 Administrative Charges Limits We may have to perform services on your behalf in carrying out your instructions, e.g. sending monies electronically to another party; photocopying; faxing and undertaking credit reference and money laundering checks. We will charge an amount to cover the time spent by us in performing that service. We may agree with you a limit on our charges. If so, we will carry out work up to the value of that limit, send you an invoice for the relevant sum and discuss with you whether you want to agree a further limit or not. A limit on charges is not a fixed fee for work Additional work Unforeseen additional work may arise in the course of the matter, e.g. due to unexpected difficulties, a change in your requirements or a change in circumstances (such as unexpected action or inaction by the other party or parties involved) We will let you know about this (normally before we carry out any additional work) and (so far as we are able to do so) provide you with an estimate of the cost Matter not concluded If your matter is not concluded, we will still charge for the time that we have spent and the disbursements and expenses that we have incurred on your behalf Money on account We may ask you to pay certain sums in advance of us carrying out work and incurring expenses on your behalf, either at the start of the matter or during its course. If we ask for a payment on account it will be due on request. Until we receive payment we reserve the right not to undertake further work on your behalf and neither will we be under any obligation to incur liability for or pay any disbursements. We will offset any payments on account against the invoices that we send you from time to time and the final invoice. You should be aware that the total charges and expenses are likely to exceed any advance payments made Payments to and by us You can pay us by cheque or by making an electronic payment. We reserve the right to clear any cheques or other forms of payment that you provide to us before carrying out work on any aspect of your matter If payment is by credit card, we will charge a fee of 3% of the amount paid by that method We will not accept any cash payment from you in excess of 1,000 in any calendar month. If you make any cash payment directly or indirectly into our bank account, we may have to carry out investigations to determine the source of the funds. If so, we reserve the right to charge you for carrying out those investigations We will only make payments to you by issuing a cheque in your name or sending the money directly to a bank or building society account in your name. We will not make payments to third parties or in cash (whether to you or a third party) 13 Invoices 13.1 We will send you invoices for our charges and disbursements on a regular basis during the course of the matter (as shown in the Summary) All invoices sent to you are statute bills unless otherwise stated Payment of any bill (interim or final) is due within 7 days of presentation unless an extended payment time has been agreed by prior arrangement. In the case of invoices remaining unpaid, we may charge interest on the amount unpaid at the rate permitted in accordance with the Late Payment of Commercial Debts (Interest) Act This is without prejudice to any other rights we may have, including the right to recover any reasonable legal or third party fees in connection with the collection of debts due to us. Interest is charged on a daily basis Our invoices will be rendered in sterling and you must pay us in that currency unless we agree otherwise with you in advance. If we agree that our invoices will be rendered or may be paid in another currency, you must ensure that you send us sufficient funds to pay our invoice in full after 5

8 exchange rate conversion. The exchange rate that will apply will be the rate on the day that you pay the invoice. 14 Your rights with regard to our invoices 14.1 If you do not agree with the amount of any of our invoices, you have the right to complain under our complaints policy (see below) 14.2 You may also have the right to apply to the High Court for an assessment of the amount charged. This process is subject to certain limitations. For further details of your rights, please consult the Solicitors Act 1974 Sections 70 to Section 74(3) of the Solicitors Act 1974 shall not apply to our charges. This means that our charges may exceed the amount recoverable from an opponent in court proceedings If you complain about an invoice or use the procedure under the Solicitors Act 1974 and any part of that invoice remains unpaid, we have the right to charge interest on the amount unpaid. 15 Financial benefits arising while acting for you 15.1 If we receive a financial benefit in excess of 20 in connection with the work outlined in the Engagement letter, we will notify you and tell you how we became entitled to receive that benefit. We will normally pay any such financial benefit to you within 28 days of our receiving it or offset the amount of the benefit against any amounts that you owe to us If we receive monies from you or on your behalf into our general client account, interest received will be dealt with in accordance with professional guidelines issued from time to time. The payment of any such interest is subject to the SRA Accounts Rules. We will pay you gross interest in accordance with the rates payable at the time by HSBC Bank plc on their Clients Deposit Account. This is however subject to a de minimis value of being earned in interest on your monies before any interest becomes payable to you. 16 Introductions and referrals We will tell you if we have any financial relationship with a third party (for example a funder, an insurer, a fee-sharer or introducer) relating to your matter. In any event, no such relationship shall compromise our obligation to provide independent advice to you and to act at all times for you alone and in your best interests. 17 Consumer Contracts Regulations The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 ( the regulations ) may apply to your contract with us. If so then: (except as otherwise provided in these Terms) for a certain number of days you have the right to cancel the contract without giving any reason. The cancellation period will expire at the end of 14 days after the day on which the contract is entered into To exercise the right to cancel you must inform us of your decision to cancel this contract by a clear statement for example a letter sent by post, fax or . Our contact details are set out at clause 2.3 above To meet the cancellation deadline, it is sufficient for you to send your communication exercising your right to cancel before the cancellation period has expired If you cancel the contract, we will reimburse to you all payments received from you without undue delay and not later than 14 days after the day on which we are informed about your decision to cancel the contract We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event you will not incur any fee as a result of the reimbursement If you requested us to begin the performance of services during the cancellation period, you will pay us an amount which is in proportion to what has been performed until you have communicated to us your cancellation of the contract, in comparison with the full coverage of the contract. 18 Limitation of liability Your attention is particularly drawn to this clause 18.1 Wake Smith LLP will have sole legal liability for the services provided to you and for any act or 6

9 omission in the course of providing those services. Any claim relating to or in connection with those services can only be brought against Wake Smith LLP and not against its individual members, officers, employees, consultants or agents. Claim means any claim whether arising out of this agreement or otherwise, and whether such a claim is made in contract, tort, on the ground of breach of trust or on any other basis Where a person is called a partner, the purpose is to indicate that person s status. It is not to be assumed that the person is holding himself out as a partner for the purposes of partnership law. All partners are acting in their capacity as members and employees of Wake Smith LLP A member, employee, consultant or agent of Wake Smith LLP, by signing any letter, or other document in his or her own name in the course of providing services to you does not thereby assume any personal legal liability separate to that of Wake Smith LLP Our maximum liability for loss or damage, breach of contract, breach of trust, negligence or otherwise (with the exception of fraud) is 10 million for any one transaction/matter or series of connected transactions/matters unless a higher amount is stated in the Engagement letter Any damages you claim against us arising out of or in connection with the services we provide to you will be limited to that proportion of the loss or damages, including interest and costs, that is allocated to us by a court after taking into account any contribution to that loss or damages by any other person responsible in line with the Civil Liability (Contribution) Act In assessing their contribution to any loss, no account shall be taken of any limit imposed on the amount of liability of any other person We will not be liable for: Loss of profits; or Loss of business; or Depletion of goodwill and/or similar losses; or Loss of anticipated savings; or Loss of goods; or Loss of contract; or Loss of use; or Loss or corruption of data and/or information; or Any loss, damage, costs or expenses of an indirect or consequential, special or exemplary nature Any advice given by us to you is based on the applicable law at the date on which such advice is given. We are not able to advise you on any subsequent changes in the law and accordingly we do not accept any liability for this Neither you nor we shall be liable for any failure to perform or for any delay in performing any obligations if the failure or delay is due to causes beyond our control including (but not limited to) extreme weather, riot, curfew, war, terrorism, industrial action, the conduct of any police or other official investigation or delays in providing or non-provision of Serious Organised Crime Agency consent following a disclosure under the anti-money laundering legislation If we receive money from you or on your behalf or if you instruct us to transfer money to other bodies, we will not be liable to repay money lost through any failure or collapse of any bank or other financial institution All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement. We limit our liability as far as the law permits. We cannot limit our liability where, because of our negligence, we cause death or personal injury to occur. 19 Termination 19.1 You can terminate your instructions to us in writing at any time If you decide that you no longer wish us to act for you, you must pay our charges for the time that we have spent on your matter plus any outstanding disbursements incurred on your behalf We may decide to stop acting for you if we believe we have good reason to do so. If so, we will give you reasonable notice of our decision. Examples of good reason are: if you do not pay one or more of our invoices or are otherwise in breach of these Terms; if you do not make an advance payment promptly when requested; if you provide instructions that are unreasonable or would 7

10 require us to breach a professional rule or a duty to the court or might involve the commission of a criminal offence; if there is a conflict of interest; if there is a breakdown in confidence between you and us; if we suspect that you are unable to carry on your business or are likely to be made bankrupt in the course of our dealings In the event that either you or we terminate the instructions you must pay any outstanding invoices before we will transfer your papers and documents to you or to another solicitor In proceedings where we are on the Court record as acting for you, if either you or we terminate instructions you will be responsible for our charges and disbursements (including the Court fee) in making an application to the Court to come off the Court s record. 20 Our service and complaints 20.1 We have a formal written complaints procedure, a copy of which will be supplied on request. If you have any concerns about the service you receive from us then in the first instance you should first take up those concerns with the person who is handling your matter. If it is not possible for you to resolve your complaint with him or her, then write to Andrew Vidler at 68 Clarkehouse Road, Sheffield S10 2LJ or by to andrew.vidler@wake-smith.com providing full details of your complaint. He will arrange for your complaint to be investigated promptly and thoroughly at no cost to you If you are not satisfied with our handling of your complaint, you can refer it to the Legal Ombudsman. Normally, you will need to bring a complaint to the Legal Ombudsman within 6 months of receiving a final written response from us about your complaint, or within 6 years of the act or omission about which you are complaining, or (if outside this period) within 3 years of when you should reasonably have been aware of it The Legal Ombudsman can be contacted at PO Box 6806, Wolverhampton WV1 9WJ; on ; at enquiries@legalombudsman.org.uk.; or via website: 21 Third parties For the purposes of the Contracts (Rights of Third Parties) Act 1999, this contract is not intended to and does not give any person who is not a party to it the right to enforce any of its provisions. 22 Assignment We may assign, transfer, novate or sub-contract any rights or obligations under these Terms to any third party without your prior consent. 23 Law and jurisdiction This agreement will be governed by and construed in accordance with the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales. 8