MONDAIR SOLICITORS
TERMS OF ENGAGEMENT
(FILE REF AND NAME)
1. Introduction
These terms contain important provisions that limit our liability to £1 million unless otherwise agreed with you in writing.
These terms contain important provisions that limit our liability to £1 million unless otherwise agreed with you in writing.
Our principal base of business is 40 Peterborough Road, Farcet, Peterborough, PE7 3BH.
These terms and our letter of engagement (as amended by any subsequent correspondence) (“Engagement Letter”) form the contract between us relating to each matter on which we advise you (“Contract”) and may not be varied unless agreed in writing and signed by the Principal. These terms, including the limits on our liability in clause 11, shall apply to work done by us for you including any future work unless we agree to different terms with you in writing.
2. Identification Requirements
We are required by law to obtain, verify and keep documentary evidence of the identity of all of our clients (and sometimes people related to them) and to have an understanding of their financial status and normal business affairs.
In the case of individuals (including as officers of a company), we usually need to see the original and keep a photocopy of a passport or driving licence with photograph, or national identity card or similar document as evidence of your identity and a recent utility or council tax bill or similar type of document as additional evidence of your address. If is it not practical for us to examine the original, certain regulated bodies (such as Solicitors and Accountants) can provide “certified copies”. Alternatively the Post Office offer a document certification service for a small fee (details at http://www.postoffice.co.uk/document-certification-service) or we can discuss other methods of certification with you.
For all companies we will carry out a search at Companies House (or similar registry in foreign jurisdictions) and may ask for further information. We will usually also require the evidence for individuals for two Directors of the company.
As part of the personal verification process, we may undertake electronic verification checks. We will only use companies who are compliant with all current data legislation. We normally do not charge for company or individual searches, if such searches are of UK companies/domiciled individuals. Any paid search will appear on your invoice as an expense.
You may be required to provide further information including evidence of the source of funds to be used in a matter or transaction and we may refuse to proceed if the source and legitimacy of the funds cannot demonstrated to our satisfaction.
In order to fulfil our contractual obligations to you, we may be asked, in some transactional matters, to provide the other party’s legal representatives with your ID documents as part of their due diligence process.
We are in certain circumstances obliged under anti money laundering and terrorist legislation to make a report to the National Crime Agency (“NCA”) where we are suspicious that may matter or transaction in which we are instructed involved the proceeds of criminal conduct. We may be prohibited by law from informing you or anyone else when such a report has been made or the reasons for it, and it is possible that we may not allowed to proceed with the transaction or matter concerned until NCA gives us permission to do so. Our obligations under this legislation override any inconsistent provisions in these terms or our letter of engagement which shall be deemed modified accordingly. By instructing us you accept that we shall not be liable for any loss you may suffer because we have made a report in accordance with our Legal or Regulatory requirements, or, have ceased work whilst we await authority to proceed.
3. Fees and Expenses
Our charges are based on a number of factors including the size, value, complexity and novelty of the matter and the speed of response and any speciality knowledge required. Unless otherwise agreed with you we will charge you for the time spent dealing with the matter and such time will be charged at an hourly rate based on the experience and seniority of the person dealing with the matter and, if applicable, the need to work outside normal working hours. The rates applicable to your matter are set out in the Engagement letter. Our rates are generally reviewed on 1st January and we will notify you in writing of any increase. We will add VAT where applicable to our charges at the rate that applied when the work is done.
Time spent on your matter includes meetings with you and others, travelling, waiting, researching and considering, preparing and working on papers and making file notes. Short correspondence we write and receive and short telephone calls we make and received will be charged as units of one tenth of an hour.
Longer correspondence and calls will be charged in accordance with actual time spent. Our charges for CHAPS transfers are £30 + VAT, and for all other electronic payments, £5 + VAT.
We will give you estimates of our likely charges and expenses as the matter progresses and at least once every 6 months. We will also inform you if any unforeseen extra work becomes necessary – for example, due to unexpected complexities or difficulties, or if your requirements or the circumstances of the matter charge significantly during the matter - and will provide a written estimate of the additional costs prior to embarking on the work.
Expenses, including Land Registry and Companies House fees, search fees, stamp duty (and similar taxes), court, experts’, agents’, couriers’ and barristers’ fees, travel expenses and subsistence are charged in addition. We may also include charges for document production, use of online databases, international telephone calls and faxes. VAT is payable on certain expenses.
We will discuss with you how you are to pay for our charges and expenses and may ask you to pay money on account of costs, expenses and VAT on first instruction or from time to time during the course of a matter. These amounts will be shown as paid on your final bill. You will not be entitled to be credited with any interest which accrues on such monies. If a payment on account is not made when requested we reserve the right to cease all work on your matters.
If your matter does not proceed to completion, or we are prevented by professional or other reasons from continuing to act, we will charge you for any work done and expenses incurred on the hourly basis set out in the Engagement Letter (but not exceeding any agreed fee).
4. Bills
We reserve the right to deliver interim statute bills while the work is in progress as we feel that this will assist you in budgeting for the overall cost of the matter in question.
Our bills are payable within 28 days and we are sure that you will understand that in the event of a payment for expenses not being made when requested, or an interim bill not being paid, then we must reserve the right to cease work on all your matters and decline to carry out any further work on your behalf. We will in any event, send you a bill for our charges and expenses when the work is substantially completed. Bills delivered periodically will be final bills for the period to which they relate but (without prejudice to the final nature of our bills) we may invoice expenses for that period on a subsequent bill.
Where we hold money for you, on account or otherwise, we may use this money towards payment of our bills. We will always advise you when this is being done. If we take any security for our fees, whether from you or any third party, this shall not prejudice or affect any rights to retain your papers which we have or to which we may become entitled.
It is your responsibility to tell us if you have any form of insurance cover such as legal expenses insurance or if there is a third party who may pay your fees and/or expenses. It is important that you understand that you will be responsible for paying our bill(s) and, even if a third party agrees or is ordered to pay all or part of your costs, you will remain responsible to us for payment until those costs have been paid and will have to pay us in the event that the third party fails to.
If your account remains unpaid after 28 days then, in the absence of any contrary agreement we may either (if you are a business) charge you interest on the unpaid element under the Late Payment of Commercial Debts (Interest) Act 1998 on a daily basis from the date of the bill until payment whether before or after judgement or (if you are a private individual) charge you interest on the unpaid element at a rate of 8% per annum on a daily basis from the date of the bill until payment whether before or after judgement. You will be responsible for all costs and expenses that we incur, on an indemnity basis, as a result of us having to take action against you for any bills that remain unpaid after 28 days.
If any element of a bill is queried, that part of the bill which has not been queried should be paid in any event.
You will be liable to indemnify us for any costs we may incur where a cheque or money transfer submitted by you or on your behalf is not honoured.
You are entitled to apply for your bill to be assessed under Part III of the Solicitors Act 1974.
5. Costs and Expenses in Appeal and Litigious Matters
Even if you are successful the other party may not be ordered to pay all your charges and expenses or these may not be recovered in full. If this happens, you will be responsible for paying the balance of our charges and expenses. If the other party if legally aided, you may not get back any of your charges and expenses, even if you win the case. You will also responsible for paying the charges and expenses of seeking to recover any charges and expenses that the court orders the other party to pay.
If you are successful and the court orders the other party to pay some or all of your charges and expenses, interest can be claimed on them from the other party from the date of the court order. We will account to you for such interest to the extent that you have paid our charges or expenses on account, but we are entitled to the rest of that interest. Please note that costs are rarely awarded in immigration appeals. There is a possibility of recovering costs if the other side have been unreasonable but we will advise you if this is appropriate in your case in due course.
In some circumstances, the court may order you to pay the other party’s legal charges and expenses; for example, if you lost the case. The money would be payable in addition to our charges and expenses. We will discuss with you whether our charges and expenses and your liability for another party’s charges and expenses may be covered by insurance, and if not, whether it would be advisable for you to have insurance to meet the other party’s charges and expenses.
In Employment Tribunal claims costs are awarded only in exceptional circumstances and rarely is an award made for all of a party’s costs and expenses.
6. Cash
The Firm’s general policy is not to accept significant amounts of cash from clients. 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.
Where we are paying money to you, it will be paid by cheque or bank transfer. It will not be paid in cash or to a third party.
7. Payment of interest
If we hold monies on your behalf we must pay to you a rate of interest on those monies which is fair and reasonable, both to you and to our firm. We will pay to you the same rate of interest on such monies as we receive from our bank. However, due to the fact that all client monies we hold have to be readily available the rate of interest we receive and pass on to you will invariably be less than you would be able to arrange personally direct with a bank.
When your money is held on our general client account any interest paid to you is paid without any deduction for income tax (unless you are resident overseas – see below). As such it is your responsibility to inform HM Revenue and Customs of amounts of interest received from us.
Under the European Savings Directive Regulations 2003/48/EC we are required to inform HM Revenue and Customs of payment of interest to reinvent payees and residual estates in prescribed territories. Where you reside outside the UK and EC, we are required to deduct income tax at the current basic rate and account for this interest to HM Revenue and Customs directly and pay you the net amount.
Interest will be calculated from the time your funds become bleared for interest purposes, on cheques or banker’s drafts this will be 5 working days after the cheque or draft has been deposited with our bank. For direct transfers or same day payments the funds become cleared on the day after receipt. Interest will be calculated on a daily basis and calculated on amounts held overnight from the day the funds become cleared for interest purposes. Due to the administrative costs of dealing with interest we will not account to you for any interest that accrues where the amount calculated for the period that cleared funds are held is less than £30.00. Interest will be calculated at the end of the matter upon which we are acting for you and will be credited to you at that time. It will be your responsibility to ensure that arrangements are in place for you to receive the monies we hold for you at the end of the matter.
8. Copyright
Unless we agree otherwise, all copyright subsisting in the documents and other materials that we create whilst carrying out work for you will remain the property of Mondair Solicitors. You will have the right to use such documents and materials for the purposes for which they are created and agree not to make them available to third parties without written permission. We accept no responsibility to third parties for any aspect of our professional services or work that is made available to them.
9. Storage of Documents and Deeds
After completing the work, we are entitled to keep “your file” while money is owed to us. “Your file” includes any papers, documents or media (whether stored electronically, on paper, or in another durable medium), over which you hold proprietary rights. One year after delivery of the final invoice, or confirmation that the matter has been concluded (whichever is earliest), ownership of your file passes in its entirety to Mondays Solicitors. The file may be stored off-site at a secure facility for 6 years (or longer by written agreement) unless you ask for your file to be returned to you. Closed files held beyond this period may be security destroyed without further reference to you. We will not destroy documents which you ask us to deposit in safe custody but we will pass on to you, on a cost only basis, the storage charges rendered to us by our external storage company.
We do not normally make a charge for retrieving closed file or Deeds in response to continuing or new instructions for you. However, we will pass on the cost of retrieving papers to simply return them to you or someone of your choice, again on a cost only basis. Reasonable copying and postage costs will also be charged. If the file is to be sent to a third party we require a signed authority from you. If the file is to be collected by a third party (after your authority has been received by us) they must attend our office with photographic ID, which we will photocopy for our records.
10. Termination
You may terminate your instructions to us in writing at any time but we will be entitled to keep all of your papers, documents and deeds while there is money owing to us (including costs which have not yet been billed).
We may terminate your instructions but only on reasonable notice and for good reasons, including where you have not given us sufficient instructions, provided appropriate identification evidence or you have lost confident in us.
If any account is unpaid for 28 days we may cease acting for you. We may also cease acting for you if you do not pay an amount which we have requested on account of costs within 28 days of a request (or sooner if specified in the request). We are entitled to keep all your papers and documents whilst money is owing to us.
If we cease acting for you, we shall, where relevant, apply at your expense to remove ourselves from the court or employment tribunal record.
11. Limitation of Liability
We believe that limitations on our liability as set out in this agreement are reasonable having regards to the availability and cost of professional indemnity insurance and possible changes in its availability and costs. We are, however, happy to discuss this limit with you if you consider it insufficient for your purposes and will investigate options for providing further cover which may be at an extra cost.
Details of our Professional Indemnity Insurance are available on request.
We will perform our obligations to you with reasonable skill and care and accept liability without limit for the consequences of fraud by Mondair Solicitors or any of its Partners or employees within the course of practice and for any other liability which we are not permitted by law or rules of professional conduct to limit or exclude. If any part of this agreement (including provisions as to the amount or time limits) which seeks to exclude, limit or restrict liability is found by a course to be void or ineffective on the grounds that it is unreasonable or does not accord with any professional obligation, the remaining provisions shall continue to be effective. We do not seeks to reduce our liability below the minimum prescribed by the Solicitors’ Regulation authority.
Save as provided above, the total aggregate liability of Mondair Solicitors, its Partners, Consultants and employees to you (and where we are instructed jointly by more than one party, all of you collectively and in total and also including anyone claiming through you) arising from or in connection with this agreements (including any addition or variation to the same) shall not exceed £1 million.
You agreed that you will not bring any claims or proceedings against our individual Partners, Consultants or employees. This clause shall not operate so as to exclude any liability which a partner, consultant or employee is not permitted by law or rules of professional conduct to limit or exclude. This clause is intended to benefit such Partners and employees who may enforce this clause pursuant to the Contracts (Rights of Third Parties) Act 1999 (“The Act”. Notwithstanding any benefits or rights covered by this agreement on any third party by virtue of the Act, the parties to this agreement may agree to vary or rescind this agreement without any third party’s consent. Other than as expressly provided in these terms, the provisions of the Act are excluded.
If we are liable to you either jointly or jointly and severally with any other party, we shall only be liable to pay you the portion which, due to our fault, is found to be fair and reasonable. We shall not be liable to pay you the portion which is due to the fault of another party (irrespective of any limitation provision which may apply to the liability of such other party); and any sum de from us to you shall be reduced by the proportion for which another party would have been found liable if either you had also brought proceedings or made a claim against them; or we had brought proceedings or made a claim against them under the Civil Liability (Contribution) Act 1978 or any similar enactment under any other relevant juridisction.
We shall not be liable for any loss arising from or connected with our compliance with any statutory obligation which we may have, or reasonably believe we may have, to report matters to be the relevant authorities under the provisions of anti-money laundering or other legislation which may apply from time to time.
12. Insurance Mediation Activity
We are not authorised by the Financial Conduct Authority and we accordingly do not carry out any insurance mediation activity or associated actions.
13. Guarantee
If we undertake work for a limited company we require a director of the company to sign these Terms as guarantor of the company’s obligations to us in the following terms.
In consideration of our undertaking work for the Company, the Guarantor hereby unconditionally guarantees to us and our successors, transferees and assigns the due and punctual performance, observance and discharge by the Company of all its obligations and liabilities to Mondair Solicitors.
As an independent and primary obligation, without prejudice to the guarantee above, the Guarantor hereby unconditionally and irrevocably agrees to indemnity and keep indemnified Mondair Solicitors against all and any losses, costs, claims, liabilities, damages, demands and expenses suffered or incurred by Mondair Solicitors arising from failure by the Company to comply with any of its obligations or discharge any of its liabilities to Mondair Solicitors.
This guarantee and indemnity shall be a continuing guarantee and indemnity and shall continue in full force and effect until all liabilities of the Company have been paid, discharged or satisfied in full and notwithstanding any insolvency of the Company or any change in the status of the Company.
The Guarantor shall not be exonerated or discharged nor shall his or her liability be affected by any forbearance, whether as to payment, time, performance or otherwise howsoever or by any other indulgence given to the Company by any act, thing, omission or means whatsoever which, but for this provision, might operate or discharge the Guarantor from this guarantee and indemnity.
14. Raising Queries or Concerns with us
We are confident that we will give you a high quality serve in all respects. However, if at any time you would like to discuss with us how our service to you could be improved or if you are dissatisfied with the service you are receiving, please contact the partner responsible for the matter. If you are still dissatisfied please write to our Principal who will investigate in accordance with our Complaints Handling Procedure enclosed with the Terms of Engagement.
15. Equality and Diversity
We are committed to promoting equality and diversity in all of our dealings with clients, third parties and employees. Please contact us if you would like a copy of our Equality and Diversity Policy.
16. General
Excluding public holidays our offices are usually open from 9 am to 5 pm Monday to Friday.
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.
Any dispute or legal issues arising from our terms of business will be determined by the law of England and Wales, and considered exclusively by the English and Welsh courts.
Our VAT number is 777 1143 20.
Acceptance of our Terms
Please sign and date the Acceptance of Terms Form provided on the final page of this pack and return it to us. Your continuing instructions will amount to your acceptance of these terms and the Engagement Letter.
THIS IS AN IMPORTANT DOCUMENT WHICH WE WOULD URGE YOU TO KEEP IN A SAFE PLACE FOR FUTURE REFERENCE.