These terms of business set out the basis under which we will undertake work. Please read them carefully. Your continuing instructions to us will constitute acceptance of these terms.
Our responsibilities include advising you on the law, following your instructions, reviewing your matter regularly, and discussing with you whether the potential outcomes justify the expense and risks involved with your matter.
You need to provide us with clear and timely instructions, the information and documents required for us to do our work, and funds required.
Unless you tell us otherwise, you agree to us communicating with you, including sending bills and other confidential information, by normal, unencrypted email, using the email address(es) you have given us from time to time. You should be aware that there is a risk that emails (in particular when unencrypted) may be intercepted, delayed or corrupted or may fail to be delivered.
We make reasonable attempts to exclude from our emails any virus or other defect that might harm a computer or IT system. You undertake to act likewise with any electronic communications you send to us. Neither you nor we shall have any liability to each other in respect of any claim or loss arising in connection with such a virus or defect in an electronic communication other than where such claim or loss arises from bad faith or wilful default.
Sending You Information
We may from time to time send you information which we think might be of interest to you (for example about legal developments or our other services). If you do not wish to receive that information please notify our office in writing.
It is a condition of our retainer that all bills, interim and final, are paid within 14 days. If you do not pay a bill within this time, we will charge interest on the bill at 1% per month on a daily basis, from the date on which payment of our bill is due. In the case of commercial debts we reserve the right to claim interest and recovery costs pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
If sufficient funds are available on the matter and we have sent you a bill, we will usually deduct our charges from the funds.
We are happy to accept payment of our fees by bank transfer, Visa, Mastercard, Delta, Switch or cheque. If you would like to pay using this method then please let us know.
Unless a bill is marked ‘interim’ then all bills are final bills or interim statute bills in respect of the work covered by the bill. Such final bills and interim statute bills (referred to on our invoice as a bill for legal services for a period from date to a period end date) comply with the Solicitors Act 1974 and accordingly your rights in respect of such a bill are set out in the notice on the bill. That notice includes a strict time limit and you should not wait until the conclusion of a matter before raising a query on the bill, but raise it in accordance with the time limits set out in the notice accompanying the bill.
If you have any query about your bill, you should contact the person dealing with your matter straight away.
Where an account is overdue we are entitled to retain any files and documents belonging to you which are in our possession until our account is settled. We also reserve the right to cease working on this and any other matters on which we are acting for you.
If an account remains unpaid and we commence legal proceedings against you in order to recover the sums you owe us then we will be entitled to recover from you the legal costs that we incur in connection with those proceedings at our standard hourly rates, together with all disbursements (including fees of counsel and any other lawyers engaged by us in our attempts to recover payment from you).
It is normal practice to ask clients to make payments on account from time to time. These payments help to meet our expected charges and expenses, and help to avoid delaying progress in the matter.
We may request further payments on account of expenses as the matter progresses. These amounts will be shown as paid on your final bill. Expenses include but are not limited to amounts paid out on your behalf, Counsel’s and expert’s fees, photocopying, travel and courier charges.
If instructions for a piece of work are given by more than one person or company, we may recover our fees, disbursements and Value Added Tax from any one or more of them. This includes situations where one person or company instructs us on behalf of another.
If arrangements are made for a third party to pay any of our fees or disbursements, or a court orders a third party to pay any part of our fees or disbursements, you remain liable to pay them to the extent that the third party does not pay them when due.
You should check whether you may have the benefit of legal expenses insurance cover and, if so, whether it extends to your fees with this firm. You may also wish to speak to your insurance broker. You should also check whether someone else may pay the charges and expenses such as an employer or trade union.
Unless we have agreed otherwise, our charges will be based on the time spent on your matter, applying our hourly charging rates as applicable from time to time.
Time spent that we will charge for include meetings and hearings with you and others; considering, preparing and working on papers; correspondence; making and receiving telephone calls and emails; travelling to and from meetings or hearings with you; time spent waiting at hearings or meetings; and other work necessary to act on your behalf.
Routine letters and emails sent by us and received by us and routine telephone calls made and received by us will be charged as 6 minutes each. These charges apply whether the communication is between you as the client and us or between us and third parties. Other letters and calls will be charged for on a time basis in multiples of 6 minutes. Hourly rates are reviewed periodically and we will notify you in writing of any increased rate.
We reserve the right to charge separately for photocopying, printing, telephone calls, faxes, electronic funds transfers, catering and other support services, and travel, courier and other incidental expenses.
Where applicable, we will charge VAT on our charges and expenses. We are VAT registered and our VAT number is 190 1591 69
Changes to charge-out rates
Our hourly charge-out rates are reviewed regularly and usually half-yearly. We will notify you of the rates if they change and you will then be bound by them. If you do not accept the new rates after review, we reserve the right not to continue acting for you.
Costs Estimates and Arrangements
Any costs estimate we give at any time is a guide to assist you in budgeting. It is not intended to be fixed, unless that is specifically agreed in writing.
Any fixed fee, capped fee or other fee arrangement we agree with you, or any costs estimate we give you, is based on the scope of the work anticipated and our assumptions about the matter at the time it is agreed or given. If the scope of the work changes or the assumptions change it will no longer apply. In that case we will discuss a revised fee arrangement or estimate with you.
If we agree a fixed fee with you then we reserve the right to end the fixed fee arrangement charge fees based on our hourly charging rates if:
– you fail to make payment of an instalment of our fees within 14 days of being sent our invoice relating to that instalment.
– you do not provide us with information promptly so that it becomes difficult to advise or represent you.
Unless agreed to the contrary we will normally bill monthly for the work performed to date together with any disbursements we have incurred on your behalf.
Please tell us as soon as possible if you have legal expenses insurance which might help pay your costs.
You will still be personally liable for payment of our costs and disbursements as and when they become due even if another person or organisation agrees, or is ordered, to pay our costs. You will not be able to postpone payment of our bills if we are waiting for someone else to pay them.
If another person is ordered to pay your costs, because of the way the Court calculates costs, the amount will probably be less than 75% of the fees payable by you. There is no guarantee that the person ordered to pay will be able to pay them. If the other party is publicly funded, you may not be able to recover your own costs in any event.
If we have to recover your costs from some other person, we will be entitled to charge you for the work involved and these additional charges are unlikely to be recoverable in full from the other party.
Any interest which may be recoverable on the costs which are to be paid by another party will be retained by this firm to the extent that any of our charges remain unpaid.
Expenses or Disbursements
We may incur expenses (also called disbursements) on your behalf. If the expenses are likely to be substantial, such as instructing a barrister, then we will discuss the likely costs involved with you and we may require you to pay these in advance.
Mortgage and Completion monies
Any mortgage money also needs to be in our possession as cleared funds the day before completion. This is to ensure the purchase money can be sent out by us and be received by the seller’s solicitor before the contract deadline. Any interest charged by your lender from the date that they release the mortgage money to us will be your responsibility.
If funds are required from you to complete a purchase or other transaction you must let us have them by any deadline we give you.
We cannot be held liable for any delay or consequential loss in dealing with your transaction caused by funds being uncleared on the completion date.
You will be responsible to us for our fees and disbursements regardless of any order obtained for payment of your costs by another party. Our costs are likely to exceed the sum which you could recover from any other party to the proceedings. Even if the other party is ordered to pay some of your costs the responsibility for payment of all our charges and expenses rests with you. You should also bear in mind that you may be ordered to pay the costs of the other party.
There is almost never certainty in litigation and we are not able to give guarantees as to the success of an application. For this reason our preferred approach is to negotiate a settlement if at all possible. We will act in your best interests at all times and advise you on the merits of any action you may consider taking but you accept that you must make the final decision as to whether or not to make an application to Court.
Legal Aid or Publically Funded Work
We do not undertake publicly funded (formerly legally aided) work. If you are eligible there are certain advantages to be gained from public funding of your case. You can check if you are financially eligible on the Law commission website, http://www.legalservices.gov.uk/civil/guidance/eligibility_calculator.asp
We are normally only able to accept cash up to a limit of £500 in any 28 day period.
Please do not send us any funds until the identification procedures have been carried out. If you try to avoid this policy by depositing cash directly with our bank, we may charge you for any additional checks we decide are necessary to prove the source of the funds.
At the start of a matter we will normally ask you to tell us the source of any funds you will be using. It is simplest for us if the source is an account in your name in a UK bank or building society. If the source is an unusual one, such as an account in another country or someone other than yourself, then please tell us as early as possible, including the reason.
Where we are to pay out money to you we will normally do so by cheque or direct bank transfer into an account in your name. If you want us to pay the money elsewhere or to someone other than yourself then please tell us as early as possible, including the reason. If we have to reissue a payment or a cheque to you because you give us incorrect details or the cheque is mislaid, either in the post or by you, then any costs we incur in reissuing the payment will be deducted from the amount paid to you.
Ending Our Services
You may end your instructions to us at any time by letting us know in writing.
We may decide to stop acting for you only in the case of force majeure or with good reason, for example, if you do not provide us with funds on account, there is a conflict of interest, where we are unable to obtain clear instructions from you, if you ask us to act unreasonably in relation to your case or if there is a breakdown in confidence between us. We will give you reasonable notice if we decide to stop acting for you. If we do have to stop acting for you we will explain your options for pursuing the matter, and will work with you to minimise disruption to your matter.
However if we stop acting for any reason you will be required to pay for the expenses we have incurred and for the work we have done,
If you or we decide that we will stop acting for you, you will pay our charges on an hourly basis and the expenses we have incurred even if the original agreement or understanding had been that we would only bill you on completion of the matter.
If we are forced to take action through the Court or otherwise for the recovery of our charges and expenses, you agree to pay our costs of doing so on an indemnity basis whether or not the amount of our claim would ordinarily allow us to recover costs from you.
If court proceedings have started you will have to agree to our removal from the court record. If you do not then you will have to pay the costs of our application to the court.
Interest On Funds We Hold For You
Where you do not owe us money 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.
• Interest will accrue at the rate payable by our bank on instant access deposits. This may well be less than the rate at which you could have invested the money yourself.
• We will credit you with interest if the amount of interest involved is more than £20. We may also make an administration charge. We normally pay interest gross and so you will have to account to HMRC for any tax due on it.
• 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.
• We will not account for interest on money held for the payment of a professional disbursement, once the intended recipient has requested a delay in settlement. Nor will we account for interest on money held for the Legal Services Commission.
If we are instructed by joint clients then all clients are jointly and severally liable for our fees, notwithstanding any agreement between you as to how you will share the costs. This means that we will be able to look to one client only or to each of our clients to pay the whole of or any balance of any unpaid fees.
Instructions are understood to be for the purposes of all of those instructing us. We will act on instructions from any one of those clients unless you instruct us otherwise. Liability to pay our costs is joint (all the clients together) and several (each may be liable for the whole amount).
If instructions are given on behalf of a client, we are entitled to assume that the person giving the instructions has lawful authority to instruct us. If not, then that person will be liable to us as if they were our client.
Except for any of your papers that you ask to be returned to you we will keep your file of papers or an electronic copy of it, (in which case we will destroy the paper file when the electronic copy is made) for up to 6 years after the date of the final bill and for such further period (if any) that is required by law or which we regard as reasonable. By agreeing to these terms you authorise us to erase the electronic copy or destroy the paper file if no electronic copy has been made, at the end of this period. We will not destroy documents you ask us to deposit in safe custody such as deeds or wills.
If you ask us to retrieve information from storage or to return deeds, documents or old files then we reserve the right to charge you for the time spent and all costs incurred.
Limitations on our Liability
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.
Our liability to you shall be limited to £2 million or such higher amount as is set out in the letter accompanying these Terms of Business.
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.
We will not be liable for any consequential, special, indirect or exemplary damages, costs or losses or any damages, costs or losses attributable to lost profits or opportunities.
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 exceed the amount which would have applied in the absence of that limitation.
Third party liability
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.
No claim against individual employees/partners
We have an interest in limiting the personal liability of employees, consultants and partners. Accordingly you agree that you will not bring any claim against any individual employee, consultant or partner 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 partners.
The provisions of the above paragraph are intended for the benefit of our employees, consultants and partners but the terms of our engagement may be varied without the consent of all or any of those persons.
Limitation on exclusions
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.
As explained in our accompanying engagement letter, if you are not happy with our service or the bill, we hope to be able to resolve the matter to your satisfaction. Details of our complaints procedure are available on request.
However if you are not satisfied with our handling of your complaint you may be able to ask the Legal Ombudsman (address: PO Box 6806, Wolverhampton WV1 9WJ, Website: www.legalombudsman.org.uk, Telephone: 0300 555 0333) to consider your complaint.
Normally, you will need to bring a complaint to the Legal Ombudsman within six months of receiving a final written response from us about your complaint and within twelve months of the act or omission complained of.
Note that the Legal Ombudsman service cannot be used by businesses or most other organisations, unless they are below certain size limits.
As well as your right to complain about any of our bills under our complaints procedure, you can also apply for the bill to be assessed by the court under Part III of the Solicitors Act 1974, in which case the Legal Ombudsman may not consider your complaint.
We are regulated by the Solicitors Regulation Authority (“SRA”) and so are subject to the provisions of the SRA Code of Conduct and the SRA Handbook. Copies can be obtained from the SRA website, http://www.sra.org.uk Our SRA number is 62912.
Concerns About Barristers or Others
Any barrister or other professional we instruct on your behalf should have their own complaints process. So if you are not happy with their service you can complain to them direct. But please let us know. We can tell you how to make your complaint, if they have not given you that information themselves.
Our advice is for your benefit only. Save as expressly set out, our agreement with you is not intended to confer rights on any third parties whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
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 www.fsa.gov.uk/register.
Investment and Insurance Advice
Burt Brill & Cardens is not authorised by the Financial Services Authority (“FSA”). We are regulated by the Solicitors Regulation Authority (“SRA”), which is the independent regulatory arm of the Law Society of England and Wales. If you are unhappy with any investment advice or insurance advice you receive from us you should raise your concerns with the SRA.
Financial Services and Markets Act (“FSMA”)
If while we are acting for you, you need advice on investments we may have to refer you to someone who is authorised to provide the necessary advice. However we may provide some limited investment advice services where these are closely linked to the legal work we are doing for you. This is because we are regulated by the SRA, which is a designated professional body for the purposes of the FSMA.
Our role in any transaction is that of legal adviser and it is not part of our function to give advice on the merits of any transaction in investments. When providing our services we will assume that you have decided or will decide to negotiate or enter into any such transaction solely on the advice you may receive from a person authorised under the FSMA. No communication from us is intended or should be construed as an invitation or inducement to you or to anyone else to engage in investment activity.
Although we are not authorised by the FSA we are included on the register of exempt professional firms maintained by the FSA so that we can carry on insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts. The register can be accessed via the FSA website at www.fsa.gov.uk/register.
For example we may in the course of a transaction be requested by you to arrange a contract of insurance such as a restrictive covenant or other defective title indemnity policy.
This firm has not conducted a fair analysis of the market and if requested by you to arrange a contract of insurance will not undertake such an analysis. If you wish to receive advice on the market and the various policies that might suit you then you should obtain such advice from an independent insurance broker.
We are not contractually obliged to conduct insurance mediation activities with any particular insurance company. We usually deal with one of the following companies: Guaranteed Conveyancing Solutions of 71 High Street, Heathfield, East Sussex TN21 8HU, authorised and regulated by the FCA or First Title Insurance plc of Title House, 33-39 Elmfield Road, Bromley, Kent, United Kingdom, BR1 1LT, authorised and regulated by the FCA.
We are happy to supply further information about this on request.
Distance Selling Regulations
If we have not yet met you and you are an individual acting for purposes which are outside your business, the Consumer Protection (Distance Selling) Regulations 2000 apply to our agreement with you. That means that you have the right to cancel our engagement without charge at any time within seven working days of your acceptance of our engagement terms. If you wish to do so you must inform us of your decision to cancel in writing. Your right to cancel our engagement will not apply if you agree to us beginning work in relation to your instructions during the relevant cancellation period.
Governing Law and Jurisdiction
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by the law of England and Wales, and the Courts of England and Wales shall have exclusive jurisdiction over any such dispute or claim.
Confidentiality and Outsourcing
We have always sought to keep our clients’ affairs confidential. However legislation on money laundering and terrorist financing places solicitors under a legal duty in certain circumstances to disclose information to the National Crime Agency and report information about financial offences to the relevant authorities. 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 it seems that any assets involved in your matter were derived from a crime we may have to report it. This can include even small amounts of money, and covers all offences, including for example tax evasion and benefit fraud.
If we have to make a report we cannot usually, without the consent of the National Crime Agency, inform you that a disclosure has been made or of the reasons for it because the law prevents “tipping off”. A report may result in an investigation by the police, the Inland Revenue or other authorities.
In conveyancing matters we expect to receive instructions from your lenders to act on their behalf. If so, we will have to pass them information you give us that might be relevant to their decision whether to finance the purchase. This includes any differences between your mortgage application and information we receive during the transaction and information about any cash back payments or discount schemes that a seller is giving you. If you tell us things that you do not want the lenders to know and they are relevant to the lenders, we may have to stop acting for the lenders and possibly also for you.
Unless you tell us to the contrary we shall assume that we have your authority to disclose information about your matter to other parties in the conveyancing chain, including estate agents and your mortgage lender.
Sometimes we ask other companies, including companies outside the European Union or the European Economic Area, or people to do typing or 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 work on your file to be outsourced, please tell us as soon as possible.
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.
Otherwise and subject to POCA we will not disclose the nature of the work we carry out for you without your written consent or unless it is public knowledge.
Our client is only the person or entity designated in our engagement letter, 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.
The following applies if you are a listed company and are subject to the U.K. Financial Conduct Authority Disclosure Rule Sourcebook (“the Sourcebook”).
For the purposes of the Sourcebook your principal contact at Burt Brill & Cardens will be your client partner. You should inform us when you provide us with any information in relation to your company which you consider to be inside information for the purposes of the Sourcebook. We will make arrangements to draw up and maintain an insider list in relation to your company, and will provide you with a copy on request. We will take necessary measures to ensure that those whose names are on the insider list acknowledge the legal and regulatory duties entailed (including dealing restrictions) and are aware of the sanctions for misuse or improper circulation of inside information.
Termination of Services
Our lawyer-client relationship will be considered terminated upon our completion of the specific services that you have retained us to perform, or if open-ended services are to be provided, when more than six months have elapsed from the last time we furnished any billable services to you.
The fact that we may inform you from time to time of developments in the law which may be of interest to you, by e-mail, newsletter or otherwise, should not be understood as a revival of a lawyer-client relationship. We have no obligation to inform you of such developments in the law unless we are specifically engaged to do so.
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.
Monies Held in Our Client Account
We will not be liable to repay any money that we hold for you in our client account at Allied Irish Bank (GB) PLC which is lost as a result of a failure of the bank.
If at the conclusion of our retainer we are holding a balance on our client account that is due to you then we will make arrangements with you for the balance to be returned. If we do not hold up to date contact details or you do not reply then we may pay such balance to the bank account in your name from which you have previously paid funds to us.
If any provision in these terms of engagement or our accompanying letter is or becomes invalid, illegal or unenforceable then it shall, to the extent required, be severed and shall be ineffective and the validity of the remaining provisions shall not be affected in any way.
Legislation requires solicitors to take various steps to guard against money laundering. We may be obliged to report information about possible money laundering and terrorist financing to the authorities, notwithstanding our normal duty of confidentiality. If we have to make a report we may not be able to tell you that we have done so, because the law prohibits “tipping off”. Where the law permits, we will tell you about any potential money laundering problem and explain what actions may be necessary.
The law requires solicitors to obtain satisfactory evidence of the identity of their clients, even if we have acted for you before or even if a member of this firm knows you. We would be grateful therefore if you would provide us with either of the following:
– your current photocard driving licence, or
– your current passport.
If you cannot provide such evidence please tell us and we will advise what alternative evidence may be acceptable.
Please do not send us any funds until the identification procedures have been carried out.
We may use electronic identification service providers to confirm your identity, and that of any beneficial owners.
We may need to see documents in relation to trusts and for companies, details of incorporation, status, directors and shareholders as the latest identification rules extend to directors and trustees and some shareholders and beneficiaries.
We will make a charge, currently £10 plus vat per name, to deal with the identification requirements imposed on us. If clients deposit cash direct with our bank we reserve the right to charge for any additional checks we deem necessary regarding the source of the funds.
We may also, in the case of clients who are companies, partnerships or sole traders carry out a credit check. In that case we will make a charge of £10 plus vat.
If we are also acting for your proposed lender in this transaction, we have a duty fully to reveal to your lender all relevant facts about the purchase and mortgage. That includes any differences between the mortgage application and information we receive during the transaction and any cash back payments or discount schemes that a seller is giving you. You agree to us so doing.
Professional Indemnity Insurance
Under the Indemnity Insurance Rules we are required to take out and maintain qualifying insurance. Details of our insurance are available on request.
About The Firm
Burt Brill & Cardens is a limited company registered in England & Wales company number 09181045 and authorised and regulated by the Solicitors Regulation Authority. Our SRA number is 615590.
We use the information you provide primarily for the provision of legal services to you and for related purposes including:
• updating and enhancing client records;
• analysis for management purposes and statutory returns;
• legal and regulatory compliance; and
• our own direct marketing activities.
Our use of that information is subject to your instructions, the Data Protection Act 1998 and our duty of confidentiality. Please note that our work for you may require us to disclose information to third parties such as expert witnesses, credit reference agencies and other professional advisers. You have a right of access under data protection legislation to the personal data that we hold about you.
You are entitled to opt-out of marketing notifications at any time by following the instructions on the notification you receive.
We may from time to time send you information which we think might be of interest to you. If you do not wish to receive that information please notify our office in writing.
Documents, use and copyright
Part of our work will involve the creation of documents for you. We retain copyright in those documents unless we assign them to you in writing. We grant you a licence to use those documents for the purposes for which you instruct us and for your use only.
We draft documents to comply with the law at the time they are supplied to you. We are not liable for documents that become invalid because of a change in the law. For ‘standard’ documents such as an employment contract you should ask us to review them at least annually.