Thomson Hayton Winkley - Terms of Business
1.1 Our Responsibilities
·
We will treat you fairly and act within the law
with regard to both our fees and conduct of your case.
·
We will always act in your best interests, and will
distinguish between the needs of individual clients, taking account of
capability, vulnerability or other factors which may affect the manner in which
instructions and advice are given.
·
We will ensure you are in a position to make an
informed decision about the services you need, how your case will be handled
and the options available to you.
·
From the outset and throughout the conduct of your
case, we will review the matter to ensure we have the necessary resources,
skills and procedures to carry out your instructions. This includes whether it
may be appropriate, in your best interests, for us to continue to act.
·
We will disclose to you any financial benefits that
we derive from your instructions, e.g. commissions received or any fee sharing
agreement with third parties.
·
We will keep your affairs confidential, save to the
extent that we are required or permitted by law to permit access by a third
party such as the Law Society or the Solicitors Regulation Authority (see
External Audit below).
·
If, during the course of a matter, we discover any
act or omission which could give rise to a claim by you against us, we will
inform you.
1.2 Our
Level of Service
·
Telephone calls, wherever possible, will be
returned on the same day, but if not within 1 working day.
·
Letters and emails will be responded to, other than
in exceptional circumstances, within 2 working days.
·
We will update you as to progress whenever
appropriate, but in any event at least every three months.
·
Any change in the expected level of costs or the
timescale in the matter will be notified as soon as it becomes apparent.
2. Your Responsibilities
It is essential
that we have a clear understanding of the legal services required by our
clients. We therefore need to have full details of your case so that we can
advise you about the issues raised and how they can best be dealt with. You can
help us by:
·
Giving us clear instructions.
·
Letting us have all relevant documentation.
·
Informing us of any time limits of which you are
aware.
·
Dealing promptly with any important questions which
arise.
3. Hours of business
The normal hours of
opening of our offices are between 9 a.m. and 5 p.m. on weekdays. Messages can
be left by voicemail or email outside those hours and appointments can be
arranged at other times when necessary.
4. Email
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.
5. Costs
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 as notified
to you.
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. Legal Assistants’ time is not normally
charged, except when doing original work, in which case the hourly rate is
£122.
Where applicable,
we will charge VAT on our charges and expenses.
6. Changes to charge-out rates
Our hourly
charge-out rates are reviewed with effect from 1st January each year. 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.
7. 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.
8. Administration
of Estates
Where our firm or
one or more of its directors are appointed as executors under a Will, we shall
(on request) give information as to the likely legal costs in dealing with the
eventual probate. Such legal costs cannot be accurately predicted as the work
may take place some years in the future; but currently we charge between approximately
1% and 3% of the gross value of the estate plus VAT.
9. Billing
Unless agreed to
the contrary we will normally bill monthly for the work performed to date
together with any disbursements or other fees that we have incurred on your behalf.
10. Payment
10.1 In some cases, and particularly when
litigation is involved or when we may need to incur substantial expense on your
behalf we may require you to provide a payment on account of the future likely
costs and disbursements.
10.2 It is a condition of our retainer that all
bills, interim and final, are paid within 14 days. If a bill is not paid in
full within that period we may charge you interest on any amount outstanding
from the date of the bill until the date the bill is paid at the rate of
interest prescribed for judgments from time to time. In the case of commercial clients
we reserve the right to claim interest and recovery costs pursuant to the Late
Payment of Commercial Debts (Interest) Act 1998 as amended.
10.3 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.
10.4 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).
10.5 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. This is because 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.
10.6 We may deduct our fees and disbursements from
funds held on your behalf (or on behalf of an estate or trust).
10.7 If you have legal expenses insurance which
may cover all or part of our costs, please advise us immediately.
10.8 If arrangements are made for a third party to
pay any of our fees or disbursements, or if in Contentious matter 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.
10.9 In Contentious Matters you should also be
aware that our
costs are likely to exceed the sum which you could recover from any other party
to the proceedings so you would be liable for any shortfall. You may also be ordered to pay the costs of
the other party if the claim is wholly or partly unsuccessful or if a costs
order is made against you.
11. Cash
We are normally
only able to accept cash up to a limit of £1,000 in any 28 day period. If
clients circumvent this policy by depositing cash direct with our bank we
reserve the right to charge for any additional checks we deem necessary
regarding the source of the funds.
12. Interest On Funds We Hold For You
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 HSBC
Bank plc on instant access deposits held for business customers. This may be
less than the rate at which you could have invested the money yourself.
·
We will credit you with interest only if the amount
of interest involved is more than £30.
·
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 Aid Agency.
13. Cancellation
Rights (non-commercial clients only)
For the purposes of The Consumer
Contracts (Information, Cancellation and Additional Charges) Regulations 2013
we confirm that if your contract with us is an off-premises or distance
contract you will be given a Notice of your Right to Cancel and Cancellation
Form. The Notice will explain your
rights in detail. No such right to
cancel applies to on-premises contracts.
14.1 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 with good reason, for example, if you do not provide
us with funds on account, there is a conflict of interest, or you mislead 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, even if the original agreement
or understanding had been that we would only bill you on completion of the
matter.
14.2 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.
14.3 Your Documents
After the end of
the relevant matter please let us know if you would like us to send your file
of papers to you.
Otherwise we will
keep our file of your papers in storage. We will normally destroy it six years
or after an appropriate period after the date of the final bill we send to you
for the matter without further reference to you, and by agreeing to these terms
you authorise us so to do. We will not destroy documents you ask us to hold in
safe custody, such as deeds, wills and other important original documents.
We will take care
of your deeds, documents and other papers as long as they remain in our
possession. However should any of them be lost or damaged as a result of events
beyond our reasonable control we will not be liable for their replacement or
for any resultant loss.
Although we make no
charge for secure storage of your documents we reserve the right to charge a
fee (usually £75 + vat) if we need to retrieve your document(s) from secure
storage because you have or are intending to take advice from another adviser
or to deal with matters yourself. This fee will however normally be waived if
you instruct us to carry out further chargeable work on your behalf.
15.1 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.
15.2 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 £3 million unless a higher amount 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.
15.3 Professional Indemnity Insurance
Under the Indemnity
Insurance Rules we are required to take out and maintain qualifying insurance.
Details of our insurance (including the name and address of the insurer and the
geographical coverage) are available on request.
15.4 Proportional Liability
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.
15.5 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.
15.6 No
claim against individual employees/directors.
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 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.
The provisions of
the above paragraph are intended for the benefit of our employees, consultants
and directors but the terms of our engagement may be varied without the consent
of all or any of those persons.
15.7 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.
16. Any Concerns
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 Handling Policy are available
to view online (see below) or in writing, by 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. If you are a consumer and we have
made a contract with you by electronic means you may be entitled to use an EU
online dispute resolution service to assist with any contractual dispute you
may have with us. That is at http://ec.europa.eu/odr.
17.1 Instructions
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.
17.2 Joint
Instructions
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
17.3 Third Parties
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.
18.1 Investment and Insurance Advice
Thomson Hayton
Winkley Limited is not authorised by the Financial Conduct Authority (“FCA”).
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.
18.2 Insurance Mediation
Although we are not
authorised by the FCA we are included on the register of exempt professional firms
maintained by the FCA 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 FCA website at The Financial Services Register
19. 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.
20. Financial
Services Please
note that the directors of Thomson Hayton Winkley Limited have a financial
interest in Thomson Hayton Winkley Financial Services Limited which is an
authorised representative of Network Direct Ltd which is regulated and authorised
by the Financial Conduct Authority. Clients of Thomson Hayton Winkley
Financial Services Ltd do not enjoy the statutory protections attaching to
solicitors’ clients, but do enjoy the protection of the Financial Services
Compensation Scheme.
21. Tax
Advice
We will not give advice on issues relating to tax
or tax planning arising from the work we do for you except where this is
specially referred to other correspondence from us. Any work that we do
for you may have implications on your liability to pay tax or necessitate the
consideration of a tax planning strategy. If you have any concerns about
the tax implications of the work that we do for you, you should consult an
accountant or other qualified tax advisor. We would be happy to put you
in touch with someone suitable.
22. Estate Agents
Please note that the directors of Thomson Hayton
Winkley Limited have a financial interest in Thomson Hayton Winkley Estate
Agents LLP which is regulated by the Royal Institution of Chartered Surveyors.
Clients of Thomson Hayton Winkley Estate Agents LLP do not enjoy the statutory
protections attaching to solicitors’ clients, but do enjoy
other protection.
23. 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.
Payment
24. Your Affiliates
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.
25. International Work
We may in the
course of our engagement, as agent on your behalf, engage other firms in other
jurisdictions to provide certain services. These services will be provided on
their standard terms of business which will be supplied to you on request.
Where advice or
assistance is required in other jurisdictions, or in areas of law in which we
do not practise, we will discuss with you the selection of appropriate advisers
and will engage them as agent on your behalf. You will be directly liable to
them for their fees and expenses in accordance with the terms agreed with them.
Unless otherwise agreed, our advice will relate to English law only.
26. Insider Lists
The following
applies if you are a listed company and are required to maintain an insider
list in respect of any transaction.
For the purposes of
the FCA Disclosure Rule Sourcebook (“Sourcebook”) your principal contact at
Thomson Hayton Winkley Limited will be the director in charge of your matter.
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 draw up and maintain an insider list of personnel and
third parties whom we instruct who have access to inside information 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.
27. 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 HSBC
Bank plc or any other bank or building society where we hold client monies (a list of which is available upon request) which is lost as
a result of a failure of the bank.
28. Severability
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.
29.1 Data Protection
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; and
·
legal and regulatory compliance.
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 and other professional
advisers, including sometimes advisers appointed by another party to your
matter. We may also give such information to others who perform services for us,
such as typing or photocopying.
You have a right of access under data
protection legislation to the personal data that we hold about you. We seek to
keep that personal data correct and up to date. You should let us know if you believe
the information we hold about you needs to be corrected or updated. If you send
us personal data about anyone other than yourself you will ensure you have any
appropriate consents and notices in place to enable you to transfer that
personal data to us, and so that we may use it for the purposes for which you
provide it to us.
Thomson Hayton
Winkley Limited (solicitors), who are authorised and regulated by the
Solicitors Regulation Authority, are separate entities from Thomson Hayton
Winkley Estate Agents LLP and Thomson Hayton Winkley Financial Services
Limited. Some of the directors of Thomson Hayton Winkley Limited (solicitors)
are also directors of Thomson Hayton Winkley Estate Agents LLP and shareholders
of Thomson Hayton Winkley Financial Services Limited. Thomson Hayton Winkley
Financial Services Limited is an appointed representative of Network Direct
Limited which is regulated by the Financial Conduct Authority (and not
regulated by the Solicitors Regulation Authority). Thomson Hayton Winkley Estate
Agents LLP are regulated by the Royal Institution of Chartered Surveyors (and
not regulated by the Solicitors Regulation Authority).
Thomson Hayton Winkley Limited
(solicitors) may share data with Thomson Hayton Winkley Estate Agents LLP
and/or Thomson Hayton Winkley Financial Services Limited for the purpose of
advancing your matter (or a related matter) and/or to enable useful information
to be given to you. If you do not wish Thomson Hayton Winkley Limited
(solicitors) to share data with either Thomson Hayton Winkley Estate Agents LLP
or Thomson Hayton Winkley Financial Services Limited please inform us of this
in writing.
29.2. External Audit of Files
From time to time
our practice may be audited or checked by our accountants or our regulator, or
by other organisations. These organisations are required to maintain confidentiality
in relation to your files. We do not normally copy such information to anyone
outside the European Economic Area, however we may do so when the particular
circumstances of your matter so require. All such third parties are required to
maintain confidentiality in relation to your files.
29.3 Confidentiality
and Money Laundering
Solicitors are
under a professional and legal obligation to keep the affairs of clients
confidential. This obligation, however,
is subject to a statutory exception: recent legislation on money laundering and
terrorist financing has placed solicitors under a legal duty in certain
circumstances to disclose information to the National Crime Agency. Where a
solicitor knows or suspects that a transaction on behalf of a client involves
money laundering, the solicitor may be required to make a money laundering disclosure.
If, while we are acting for you, it becomes necessary to make a money
laundering disclosure, we may not be able to inform you that a disclosure has
been made or of the reasons for it. Where the law permits us to do, we will
tell you about any potential money laundering problem and explain what action
we may need to take. We may receive personal data from you for money laundering
checks, such as a copy of your passport. These will be processed only for the
purposes of preventing money laundering and terrorist financing, or as
otherwise permitted by law or with your express consent.
29.4 Mortgage Fraud
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.
30.1 Equality and Diversity
Thomson Hayton
Winkley Limited is 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 equality and diversity policy.
30.2 Diversity in the Legal Sector Report
Our Complaints Policy can be viewed here.
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