Introduction
1. In these Terms of Business “we” or “us” means Downs Solicitors LLP and “you” means the client who is instructing us. Please note that any business conducted with us is with Downs Solicitors LLP only and not with any one person individually. Our trading name is “Downs Solicitors & Notaries”. LLP’s have “members” not “partners”. However, it is commonplace for the senior members of law firms to refer to themselves as “partners” and accordingly, this wording has been retained for these Terms of Business, our website and our other marketing material.
2. When we act for you there is a contract between us, and these Terms of Business are incorporated into that contract.
3. These Terms of Business should be read in conjunction with our Brochure, the Guide to our Services and Client Care Letter applicable to the particular matter upon which we are acting on your behalf.
4. If you have already asked us to start work for you (e.g. by giving you initial advice or by acting in an emergency), we will have been doing so on the understanding that, unless otherwise agreed, the terms here are to apply from the start.
Responsibility for your work
5. We will confirm to you which person is to be responsible for your work. This may not be the person who normally advises you because we are grouped according to specialist expertise. The person responsible for your work is likely to be assisted by other members of staff on the day-to-day aspects of your work. If they are to perform a continuing role, we will inform you who they are.
How we carry out your instructions
6. Where appropriate, we will agree with you a strategy for your work and keep you abreast of progress so that you are properly informed when decisions by you are required. This, together with interim billing where appropriate, will give you a more accurate idea of what our work for you is costing and enable us to produce more realistic estimates for the rest of our work for you. It will also enable you to weigh up the benefit and risk of undertaking a particular course of action.
7. We are concerned that our work for you should be as cost effective as possible and our advice will usually be given with that in mind. If you wish us to pursue a course contrary to our advice, we will require you to confirm your instructions in writing.
8. We will need to consider the possibility of a conflict of interest in our accepting your instructions. We will discuss this with you if it arises.
Intellectual Property
9. Save where the law provides otherwise or unless we agree otherwise with you in writing, we will retain the copyright and any other intellectual property rights in all of the documents and other material produced by us. You will be licensed to use such documents and material for the purposes for which they were prepared.
Confidentiality
10. Whilst we will maintain strict confidentiality in regard to your work generally, we are subject to a number of regulatory authorities and may be required to disclose some details from time to time to them. For example, the Law Society and HM Revenue & Customs have power to inspect our files and records.
11. If you are not a personal client or a trustee of a private trust, we shall also be permitted, unless you instruct us to the contrary, to disclose when offering our services to others that we have acted for you.
12. We may communicate with you by post, telephone, fax and e-mail. As to e-mail please read 22 to 24 below.
Privacy
13. We may process your personal data (as defined by the Data Protection Act 1998) for the following purposes:
- the provision of legal, financial, investment and consultancy services;
- the administration of files and records;
- trust administration;
- transfer of data between other professionals and advisers notified to us by you; and
- the marketing and promotion of our services.
14. We may also process your sensitive personal data (defined by the Act) for the purpose of providing legal services to you. If we process your sensitive personal data for any other purpose, we will only do so as permitted by law.
15. Depending upon the nature of the work carried out for you, your personal data may be transferred outside of the European Economic Area where the data protection regulations may not offer the same protection as within Europe.
16. If you do not wish us to process your personal data for marketing purposes, please write to your contact partner or our marketing administrator.
17. A more detailed list of the purposes for which we may process personal data can be obtained from the Information Commissioner or from the website www.dpr.gov.uk. Our registration number is Z7109800.
Scope of Liability
(b) (i) In the course of our work we may advise you on Inheritance Tax (in relation to wills and probate matters), on Stamp Duty and Stamp Duty Land Tax.
(b) (ii) Save as above and unless agreed with you in writing, we do not advise on tax and the scope of our retainer specifically excludes tax advice and you will look exclusively to your accountant or tax specialist for tax advice.
19. We insure against the risk of being unintentionally negligent with a minimum cover of £3,000,000. If you require more information about this insurance, please ask your contact partner.
20. We will perform your instructions with reasonable skill and care but you agree that any liability on the part of Downs Solicitors LLP, its members, partners, employees and agents for any loss or damage resulting from the provision of the services or other work we carry out for you, however caused and regardless of the cause of action (whether in contract, tort, statute or otherwise), shall not exceed the sum of £3,000,000. No liability shall rest with and no claim for all or part of the said loss may be brought against any member, partner or employee of Downs Solicitors LLP, who might otherwise be liable to you. Our liability shall be limited to the proportion of the total loss or damage after taking into account your contributory negligence (if any) and the negligence of any other party also liable or potentially liable to you in respect of the same loss or damage. The limitation shall not apply where legislation or the regulatory system prohibits limitation of our liability, and is subject to the qualification set out below.
We accept the benefit of this arrangement as agent and trustee for each of our members, employees and agents.
Nothing in these Terms of Business shall have the effect of excluding or limiting our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees acting in the course of their employment;
(b) any fraudulent misrepresentation made by us upon which you can be shown to have relied; or
(c) any other liability that we cannot exclude by law or under the regulatory system.
If the requirements of our engagement cause us to infringe the rights of any third party, you will indemnify us against all liabilities including reasonable expenses arising therefrom.
Money Laundering
21. Like all firms of solicitors, we are now required by law to apply procedures to guard against the risk of money laundering. It will help us to avoid any problems with your legal work if you bear in mind the following points:
- Identification checks: We may need to obtain formal evidence of your identity. This may be necessary even though we have acted for you before, or even if you are known personally to a member of staff. We will tell you if such evidence is necessary, but it may help us if you are able to bring evidence to our first meeting. Normally the evidence we would ask for is your passport, plus one or more documents to establish your address, such as recent utility bills, council tax statements, or bank statements.
- Cash: We are normally only able to accept cash up to a limit of £1,500 in any 28 day period.
- Source of funds: At the start of any 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 in the name or someone other than yourself, please tell us as early as possible, including the reason.
- Destination of funds: Where we are to pay money out to you, we will normally do so by cheque in your favour, or into an account in your name. If instead you want us to pay surplus money out into the name of someone other than yourself, please tell us as early as possible, including the reason.
22. If you wish us to communicate with you by e-mail, please first take into account the following:
- it is inherently insecure;
- it does not necessarily result in instant transmission;
- in the absence of identical transmission and receiving hardware and software, it may result in indecipherable text or loss of formatting and other detail;
- other methods may be more appropriate;
- there may be a risk of transmitting viruses;
- e-mail to us goes direct to the recipient’s PC and may not to be viewed in that person’s absence; and
- it provides no guarantee of receipt.
23. If you let us know which software (including version number) you are using, it will help us deal with any transmission difficulties.
24. Unless you request otherwise, we will not post to you confirmatory hard copies of e-mails.
Custody of papers and other items
25. We will keep all documents and any items which you deposit with us for safekeeping available for inspection upon reasonable notice. They will be returned to you on request unless they are the subject of an undertaking or obligation to a third party or they are being retained pending payment of any outstanding costs. Subject to any restriction imposed by law, we do not accept liability for the loss of, or for damage to, items held in our custody or any further liability which might arise as a consequence of an item being lost or damaged, but for details of the insurance we carry, please apply to us.
26. All correspondence and working papers other than documents specifically deposited with us for safekeeping may be destroyed after a period of 8 years.
27. We do not normally make a charge for retrieving stored papers or deeds in response to continuing or new instructions to act for you. 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 in connection with previously stored papers necessary to comply with the instructions given by you or on your behalf. We are entitled to keep all papers and documents while there is money owing to us.
Holding money for you and receiving commissions
28. We will hold in our client account any money we receive on your behalf. We will pay interest to you (or whomever may be entitled to it) at the rate payable in accordance with the Law Society regulations. Payment of interest is subject to certain minimum amounts and periods of time, as set out in the Solicitors’ Accounts Rules 1998. We normally calculate the period for which interest will be paid from the date on which we receive the funds until the date we issue a cheque from our client account.
29. Interest on funds deposited with us will be paid gross and will be credited to your account; you will be responsible for any tax payable.
30. We may become entitled to a commission if we are asked to arrange insurance business for you. Subject to charging a handling fee, we will pay this to you unless the administration costs exceed the value or a different arrangement has been made with you.
Legal Aid
31. We do not undertake work under the Legal Aid Scheme. If you think you may qualify for Legal Aid we will discuss the matter with you and, if you wish, recommend a firm which could act for you under the Scheme.
Fees
Liability to Pay
32. Whether or not you expect to recover some or all of our fees from a third party, you will be responsible for paying them and any VAT on them. This is so, even though you may have to wait some time for any reimbursement due to you from a third party and in some cases embark on more legal work to recover what is owing.
33. Some work may not proceed to completion, for example a prospective acquisition. You will, nonetheless, be expected to meet our charges for acting for you.
Basis of charge
34. Our fees are calculated largely on the basis of the time it takes to perform the work during normal office hours. Other factors may, however, come into consideration such as: the need to act rapidly or exclusively or outside the usual hours of business; the monetary value of the matter or its overall importance and complexity; and the amount of documentation involved.
Fixed fees, hourly rates and estimates
35. In some cases it will be possible to agree a fixed fee with you for certain pre-defined work. In other cases a combination of a fixed fee and an hourly rate of charge may be appropriate. This can be agreed with you at the outset or when a switch to this method seems appropriate.
36. In the absence of a different arrangement being agreed with you, when time charges apply without additional factors (see 34 above) you will be charged at our standard hourly rates.
37. The hourly rates of individual fee earners who are acting on your behalf with regard to a particular matter will be notified to you in our Client Care Letter and otherwise are available upon request at any time. Please note that such rates may be increased with effect from 1st July each year to take account of increases in our overheads. They may also be increased when an individual rises in seniority or attains professional qualification. A charge at lower rates may be made for necessarily spent additional time (e.g. travelling or waiting).
38. Where no fixed fee has been agreed we will, where possible, also try to indicate how much the overall cost of our work might be, but it can only be a rough estimate and it will need periodic revision since factors beyond our control often influence matters to a material degree. For instance, the course and hence cost of litigation or other adversarial proceedings will depend very much on the response of your opponent.
Payments on Account
39. We will normally discharge all usual small out-of-pocket expenses for you as they occur (e.g. fares) and recover them from you when we send you a bill. We will, however, need to be put in funds in advance to cover any more substantial expenditure such as the advice of counsel, accountants, actuaries, Local Authority search fees, court fees etc.
40. We may ask you to lodge a sum of money with us generally on account of such disbursements or on account of costs generally. We will retain that money as a credit against our bill(s), although we may use it to pay any expenses incurred on your behalf. We do not issue invoices for payments on account.
VAT
41. Our fees, including hourly rates (see 36 and 37 above), are quoted exclusive of VAT.
Billing frequency
42. Where appropriate, we will submit interim bills as work progresses. Where we have agreed a fixed fee with you, an interim charge may be for as much as the agreed fee if the matter is not reaching a conclusion through no fault of ours.
Limits on fees
43. You may at any time set a limit on the fees you are prepared to incur and we will then not work beyond that limit without referring to you. We do, however, require you to confirm this in writing.
Payment and interest on late payment
44. Our bills are payable strictly within one month. If an amount owing to us has remained unpaid for a month or longer we are entitled to charge interest on the outstanding amount at the rate set by the courts in relation to judgment debts.
45. In the event that payment has not been received within one month, we also reserve the right to cease work at that point on that or any other matter for you so as not to incur further costs. In litigious matters we would then need to apply for our name to be removed from the court record as representing you.
Independent assessment of our fees
46. You have a right under the Solicitors’ (Non-Contentious Business) Remuneration Order 1994, under the Civil Procedure Rules, to challenge the amount of a bill. Further details will be given to you on the bill.
Limited Companies
47. Limited companies are sometimes unable to make adequate provision for the timely settlement of legal bills. We may, therefore, require directors to guarantee the fees personally unless alternative arrangements have been agreed in writing.
Litigation costs
48. If we are dealing with court work on your behalf, separate information will be given to you to explain the more complicated subject of litigation costs.
Insurance Mediation
49. We are 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 if they are an incidental part of the professional services we have been engaged to supply. This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by The Law Society. The register can be accessed via the Financial Services Authority Web-site at: www.fsa.gov.uk/register.
Varying these terms and other changes
50. These terms may be supplemented or varied at the outset in correspondence with you or subsequently by agreement with you. Other changes to our relationship may occur by law, e.g. changes to our rules of professional conduct.
Termination
51. You may terminate your instructions to us in writing at any time. For example, you may decide you cannot give us clear or proper instructions on how to proceed, or your circumstances may change. We will only stop acting for you, if there is a good reason for doing so and we will give you reasonable notice and our reasons for doing so.
52. If you or we decide that we will stop acting for you, our charges up to date of ceasing to act will be payable by you.
Complaints and Comments
53. We are confident that we will give you a high quality service in all respects. However, if you feel at any time that there is any way we can improve our service to you, please let us know. We continually review our services to our clients and your suggestions can be very helpful.
54. We hope that you will not have cause for complaint, but if you are dissatisfied with our services, please refer first to the fee earner handling your matter. If this is not appropriate, please refer to the relevant Head of Department listed in the Guide to our Services.
55. The Head of Department will review the matter with you and then take any action necessary. You may, if you wish, also raise any complaint directly with the Senior Partner, Chris Shipley, or if you are dissatisfied with the handling of any complaint. It is important that you immediately raise any concerns with us. We value you and would not wish to think
56. We hope that Downs Solicitors LLP will continue to act for you for many years to come and that you will value our work and services on your behalf.
Governing Law
57. The law of England and Wales will govern our professional and contractual relationship with you notwithstanding that you may be based, or our services provided to you, in Scotland, Northern Ireland or elsewhere.