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PRESTON-ROUSE
COMPANY®A partnership recognised and regulated by the Solicitors' Regulation Authority under number 63140
6, Gray’s Inn Square, Gray’s Inn,
London WC1R 5AX
DX 65 London/Chancery Lane
www.preston-rouse.com
Tel: +44 (0) 20 7269 9020
Fax: +44 (0) 20 7404 9731
Mobile: +44 (0) 7710 540 815
email: judith@preston-rouse.com and michael@preston-rouse.com
Partners: Judith P. Preston-Rouse (FRSA) : Michael J. B. Vann M.A. (Oxon)
Assistant Solicitors: Ms Puja Dutta LLB London Metropolitan; Gemma Fresacher LLB.
Non Solicitor paralegals: Natalie Stallard LLB; Karamjit Kaur Palaha LLB.
External Solicitor Consultants: Nicola Manning; Stephen Forsey LLB; Philip Bellamy LLB; Jonathan Pitman LLB; Simon Jones LLB.
Updated November 2011
General Terms
1. Parties
We use the terms “we” and “us” to refer to the partnership of PRESTON-ROUSE
CO. We use the term “you” to refer to our client(s), whether singular or plural, and whether an individual or a body corporate, such as a company or an LLP.2. Problems and complaints
You are entitled to complain if you consider our service to you has been less than satisfactory. Please tell us as soon as possible of matters which have caused you concern by first of all contacting Judith Preston-Rouse, our client care partner or Michael Vann either of whom who will be happy to investigate and attempt to resolve your concerns. Alternatively you can speak to or email our external consultant Nicola Manning who is the Managing Partner of McMillan Williams a firm of solicitors with whom we have links. Nicola may be contacted on 07949 615394 or by email Nicola.Manning@mwsolicitors.co.uk. Her postal address is Nicola Manning, McMillan Williams Solicitors, The Orangery, The Square, Carshalton, Surrey SM5 3BN If neither the partners here nor Nicola Manning is available and your cause for concern is a serious or extremely urgent one then please address any concern to Richard Woodman of Royds LLP who can be contacted by email at rmw@royds.com or by telephone on 020 7583 222 or by post at 65, Carter Lane, London EC4V 5HF Royds are our independent appointed complaints investigative solicitor consultants.
We are bound by our professional code of conduct actively to attempt to resolve at first hand any problems that may arise with our service. Full details of the Solicitors Code of Conduct can be accessed on line at www.sra.org.uk.
We have a written complaints procedure which is available on request but either we or our external consultants as set out above will give you a full written response to your complaint within 8 weeks of it being properly notified to us or them. If you are dissatisfied with the response you have the legal right and opportunity to notify the Legal Ombudsman within 6 months of the earlier of the date of the response, or the end of the 8 week period for giving you a formal response. Details of how you should go about this can be found on the website of the Legal Ombudsman at www.legalombudsman.org.uk. The telephone number of the Legal Ombudsman is 0300 555 0333 . Email contact can be made at enquiries@legalombudsman.org uk or by posted letter to PO Box 15870, Birmingham B30 9EB. This is a free service.
You are also able to challenge any bill we deliver to you. We would prefer that before contacting the Legal Ombudsman or applying to the Court for a judicial assessment of the bill pursuant to Part III of the Solicitors Act 1974, (as is your legal right as part of the firm’s statutory complaints procedures) you telephone us to express your concerns. It is very unlikely (unless your complaint in this regard is frivolous or unjustified), that you would need to take formal steps for such bill to be reviewed by either the court or the Legal Ombudsman.
Whilst we have a duty to inform you of your legal right to complain, we are happy to say that we have only had one complaint in the last three years and that one complaint was held to be unjustified. We take quality of service extremely seriously and have voluntarily applied for membership of the Law Society’s Conveyancing Quality Scheme. This could mean that the Law Society on inspection would wish to contact you as part of a survey of client satisfaction. It is important that all clients recognise and accept that they could be approached by the Law Society for such purpose and by accepting these Terms & Conditions you agree to co-operate with the Law Society accordingly. If you do not wish to be contacted or take part in any survey by the Law Society then please write to us to say so together with any reason why not. A note will be made on our client data base that you are not to be contacted for the reasons notified.
3. Liability
We carry professional indemnity insurance in the sum of ten million pounds for each and every claim, on the Minimum Terms and Conditions from time to time specified by the Law Society. We can furnish details of the policy to you if you so require, at any time. Our underwriters are XL Insurance Company Limited.
Our brokers are Aon Limited. To the extent permitted by law, our liability for all claims directly or indirectly connected with any matter, whether by negligence or otherwise, is limited to £10 million. Furthermore, to the extent permitted by law, if we are liable to pay damages to you and if you or any other person (including any advisors to you) has contributed to the loss you have suffered, the damages payable by us will be reduced proportionately.
Our liability to you will be limited to that portion of your loss and damage which is just and equitable for us to bear having regard to the extent of your own responsibility for the loss and damage and that of any other party who may also be liable to you in respect of it. For the avoidance of doubt, in considering whether other parties may be liable to you, no account is to be taken of any inability on your part to enforce remedies against another party by reason of causes of action against that party becoming statute or time barred or the party’s lack of means or the party’s reliance upon exclusions or limitations of liability.
Our aggregate liability to you will in any event be limited to £10 million. For the avoidance of doubt, this limit of liability applies to the aggregate of all claims that may be made against us by all of the clients to whom it applies and not separately to each client or to each separate incident of loss or damage. Thus if you are a director, member or shareholder of a number of separate companies or entities, all those companies and entities will be considered as the same client. Again, if you are trustee of more than one trust or the donee of more than one power of attorney from several donors then all the underlying beneficiaries shall be considered the same client for this purpose.
Should you consider that your potential losses arising from negligence or other breach of duty in dealing with your matter could exceed £10M you should contact one of the partners of this firm immediately as it may be possible to arrange additional ad hoc insurance cover. The above limitations on our liability do not apply in respect of (a) death or personal injury; (b)loss or damage arising from fraud or wilful default on our part; (c) any other situation in which the limitation of liability is prohibited by law.
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 profit or opportunities. We can only limit our liability to the extent that law permits. In particular as stated above, we are unable to limit our liability for death or personal injury caused by our negligence. If you would like a more detailed explanation of any of the above then please ask us.
4. Responsibilities
4.1. Our general responsibilities
We will keep your matter under regular review. We will advise you of any relevant changes in the law. We will also advise you of any circumstances and risks of which we are aware, or which we consider to be reasonably foreseeable, that could affect the outcome of your matter. Every month we publish on our web site under “News”, significant changes in the law and recent case reports. You are invited to read these on a regular basis for items that may affect you, your business or the transactions we are dealing with for you. You are also able to access back issues. Our web site can be found at www.preston-rouse.com.
4.2. Your responsibilities
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You must give us clear and unequivocal instructions so that both of us understand the remit of the task you have asked us to undertake on your behalf. Failure to do so can lead to misunderstandings. If you think that we may have misunderstood your instructions then you must clarify them as soon as practicable.
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You must be immediately responsive to any request for further information or instructions on how to proceed. Delay on your part in doing so means delay in our being able to take the next step and frequently time is of the essence. If for any reason you fail to respond to any request we make of you in a timely manner or at all, we cannot be liable for the consequences.
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Certain matters such as testing formulae for rent review provisions or tax implications (amongst others) cannot reasonably be expected of us and you must be aware of limitations in some respects ( particularly if we are under time pressures) of what we can or cannot undertake for you. It is incumbent upon you to ask us and to ascertain whether we can or cannot advise on any particular specialist aspect of the transaction under hand. If you do not do so, it will become a matter of fact whether the particular service should reasonably have been within our remit, taking all of the relevant circumstances into account including time pressures. You do yourself have to take on some responsibility for ensuring the correct result. If you are putting undue pressure on us to undertake extensive drafting and negotiation on other aspects of the transaction then it is inevitable that other aspects may not attract as much detailed attention as they should and that other professionals should be called in to deal with those especially those of an accounting, formulaic, valuation or taxation nature.
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You must deal with us at all times in an open, frank and honest manner. You should not conceal relevant facts from us and should tell us of all material facts and circumstances which may or could affect our continuing relationship or the transaction in hand, Please treat us as your “confidantes” in this regard. If you are under stress, undergoing a personal, or professional crisis, are undergoing investigations or you are unwell then it is important that we know. Your judgment could be impaired, If we are not made aware of prevailing extraneous circumstances we shall be entitled to assume that you are fully compos mentis and are able and competent to understand the nature and consequences of what we have been asked to do and the advice given. If you have introduced us to a new client (particularly a relation) then it is incumbent upon you to alert us to any physical or mental infirmity of or other relevant information relating to that new introduction so that we are fully aware of their ability to instruct us on any matter currently or in the future. They may themselves be incapable of knowing their limitations in that regard and we are therefore reliant on you to have forewarned us.
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We are part of your “team”, We are your agents. We are “you” for the purpose. Our relationship is not just professional but can frequently tip over to the personal. Sometimes there is a fine dividing line. We need to “know our client”. You therefore have a duty to keep us fully apprised of all matters we need to know about which could affect our performance or dealings with third parties and the conduct of the transaction in which we have been instructed.
If we ask you for funds on account or to be used for a specific purpose you are expected to deal with such request promptly and in full. Monies held by us for you on our client account for another transaction will be utili sed to fund the required outlays on the transaction in question. A full account of such intraledger transfers will always be provided so that you know precisely where and for what purpose your monies have been utili sed
5. Financial terms ( see also paragraphs 24 And 25 below)
Our hourly rate chargeable (excluding value added tax and disbursements) is £315.00 for a Grade A solicitor. Both partners are Grade A. Assistant solicitors who assist on the matter will be charged at £250.00 per hour. Paralegals will be charged out at £200 per hour exclusive of vat. These rates will not apply to fixed rate quotes save in the event of any fixed rate transaction becoming abortive or entailing more work than first envisaged when we shall be entitled to charge at such hourly rates unless agreed otherwise.
On property and some other matters (excluding litigation or potential litigation matters) we generally work on “fixed fee basis” but always on the proviso that in the event the matter becomes unduly protracted or complicated through no fault of ours, such fixed fee is capable of an upwards only review to be discussed with you before a bill is raised.
A “fixed rate quote” means only that we shall not be charging you on a recorded time spent basis, but will offer to do the job for a particular “set” fee which can usually (but not always) be related to the financial and inherent value to you of the transaction. Such quote is always made with the inbuilt proviso (as with any building contract) that if there are variations to our instructions or extensions of time because of external events beyond our control or inherent defects in the transaction itself (usually but not limited to difficulties with the other side to the transaction) or extensions of remit to our initial instructions we shall be entitled to charge more commensurately with those factors which were unknown to us at the time of giving the quote. Increases over and above our original quote will always be submitted to you and/or discussed prior to delivering a final bill to you. We prefer to discuss matters with you and to agree final fees in these circumstances and will always give you the opportunity to have such discussions and to negotiate and agree the final fee.
Abortive property purchases and sales will be charged at the higher of our relevant hourly rate or £750 excluding vat and outlays/expenses.
Settlement of any account from us should be made within 28 days after delivery of our invoice, or earlier if indicated, e.g. in the case of a purchase of a property, where payment is required before completion.
You will pay us a minimum sum of £750 (more if specifically requested) on account of costs and outlays at the outset of your instructions. This minimum sum will assist us in defraying for example the costs involved in undertaking property searches some of which are expensive. We cannot be expected to fund you or lend you the money for the cost of initial outlays made on your behalf.
Any fixed fees indicated to you will exclude additional fees costs and charges of for example (but not limited to) our fees for photocopying, undertaking searches, bank charges for electronic funds transmissions; travel and couriers; fees payable to any cour, HMRC, the Land Registry, Local Authority, search agents, Companies House; experts, counsel, contributions towards the cost of our professional indemnity policy and all other such expenses as may be appropriate or necessary. The amount of these will so far as is possible be indicated to you at the outset. Please remember that although many of such fees (particularly those payable to any governmental agency) are either exempt from or partially exempt from value added tax, that value added tax at the relevant rate will be charged to you on top and in addition to them. As from 4th January 2011 the standard rate of vat has been 20%.
Stamp Duty Land Tax
On property purchases you are personally liable to pay Stamp Duty Land Tax. We will undertake payment on your behalf provided you have put us in sufficient funds to do so prior to completion. Our financial statement delivered to you prior to completion will show the amount you have to pay. Your title cannot be registered at the Land Registry without producing to the Land Registry satisfactory evidence that the Stamp Duty Land Tax on the transaction has been paid. Where we are also acting for your lenders or mortgagees, if we are not in funds to pay the Stamp Duty Land Tax before completion we shall be entitled to cease acting for you immediately prior to completion, will not complete the transaction and will be under a duty to return advance funds to your lender as a consequence. This is because we have a duty to your lenders to register their mortgage at the Land Registry and without evidence of payment to HMRC of the Stamp Duty Land Tax due, we would be unable to register the mortgage and would be in breach of the terms upon which we are instructed by your lenders. If we have insufficient funds with which to pay Stamp Duty Land Tax, you must be aware that this will remain unpaid and that your title to the property will remain unregistered.
Stamp Duty land Tax has to be paid within 30 days of the transaction completing . It is your duty to pay SDLT not ours unless you have instructed us to do so on your behalf and have given us sufficient funds to pay it. After 30 days of completion, penalties and interest will be payable by you to HMRC. Interest is calculated on a daily basis according to base rate interest at any one time.
We are not liable to you or HMRC for failure to pay your SDLT if you have not put us in sufficient funds to do so and neither are we liable for any failure to register your title at the Land Registry on account of not being able to provide the Land Registry with a valid SDLT submission receipt of an SDLT return. If you do not provide us with sufficient funds to pay the Stamp Duty Land Tax we take no responsibility for the consequences. Payment of it on your behalf is an additional service provided by us only if requested by you (and for which we reserve the right to charge an additional fee). After delivery to you of the Financial Statement showing what sums are required to complete your purchase including the sum due for Stamp Duty Land Tax and Land Registry title registration fees, we shall not send you any further reminders of payments due. Payment of SDLT or making arrangements to pay it either through us or by yourself is your responsibility and not ours. Our role in acting for you on the purchase ends on the date of the transfer but we will on receipt of further instructions and funds arrange to pay the SDLT and complete the title registration. You are on notice accordingly.
Interest
Interest will be calculated and accounted for to you net where it is fair and reasonable to do so and at a fair and reasonable rate in all of the circumstances. Interest will be calculated daily and will normally run from the date(s) when funds are received by us until the date(s) on the cheque(s) or other payment issued to you.
Interest will be charged by us on accounts which are not paid within that time, at the higher for the time being of
5. Financial terms ( see also paragraphs 24 And 25 below)
Our hourly rate chargeable (excluding value added tax and disbursements) is £315.00 for a Grade A solicitor. Both partners are Grade A. Assistant solicitors who assist on the matter will be charged at £250.00 per hour. Paralegals will be charged out at £200 per hour exclusive of vat. These rates will not apply to fixed rate quotes save in the event of any fixed rate transaction becoming abortive or entailing more work than first envisaged when we shall be entitled to charge at such hourly rates unless agreed otherwise.
On property and some other matters (excluding litigation or potential litigation matters) we generally work on “fixed fee basis” but always on the proviso that in the event the matter becomes unduly protracted or complicated through no fault of ours, such fixed fee is capable of an upwards only review to be discussed with you before a bill is raised.
A “fixed rate quote” means only that we shall not be charging you on a recorded time spent basis, but will offer to do the job for a particular “set” fee which can usually (but not always) be related to the financial and inherent value to you of the transaction. Such quote is always made with the inbuilt proviso (as with any building contract) that if there are variations to our instructions or extensions of time because of external events beyond our control or inherent defects in the transaction itself (usually but not limited to difficulties with the other side to the transaction) or extensions of remit to our initial instructions we shall be entitled to charge more commensurately with those factors which were unknown to us at the time of giving the quote. Increases over and above our original quote will always be submitted to you and/or discussed prior to delivering a final bill to you. We prefer to discuss matters with you and to agree final fees in these circumstances and will always give you the opportunity to have such discussions and to negotiate and agree the final fee.
Abortive property purchases and sales will be charged at the higher of our relevant hourly rate or £750 excluding vat and outlays/expenses.
Settlement of any account from us should be made within 28 days after delivery of our invoice, or earlier if indicated, e.g. in the case of a purchase of a property, where payment is required before completion.
You will pay us a minimum sum of £750 (more if specifically requested) on account of costs and outlays at the outset of your instructions. This minimum sum will assist us in defraying for example the costs involved in undertaking property searches some of which are expensive. We cannot be expected to fund you or lend you the money for the cost of initial outlays made on your behalf.
Any fixed fees indicated to you will exclude additional fees costs and charges of for example (but not limited to) our fees for photocopying, undertaking searches, bank charges for electronic funds transmissions; travel and couriers; fees payable to any cour, HMRC, the Land Registry, Local Authority, search agents, Companies House; experts, counsel, contributions towards the cost of our professional indemnity policy and all other such expenses as may be appropriate or necessary. The amount of these will so far as is possible be indicated to you at the outset. Please remember that although many of such fees (particularly those payable to any governmental agency) are either exempt from or partially exempt from value added tax, that value added tax at the relevant rate will be charged to you on top and in addition to them. As from 4th January 2011 the standard rate of vat has been 20%.
Stamp Duty Land Tax
On property purchases you are personally liable to pay Stamp Duty Land Tax. We will undertake payment on your behalf provided you have put us in sufficient funds to do so prior to completion. Our financial statement delivered to you prior to completion will show the amount you have to pay. Your title cannot be registered at the Land Registry without producing to the Land Registry satisfactory evidence that the Stamp Duty Land Tax on the transaction has been paid. Where we are also acting for your lenders or mortgagees, if we are not in funds to pay the Stamp Duty Land Tax before completion we shall be entitled to cease acting for you immediately prior to completion, will not complete the transaction and will be under a duty to return advance funds to your lender as a consequence. This is because we have a duty to your lenders to register their mortgage at the Land Registry and without evidence of payment to HMRC of the Stamp Duty Land Tax due, we would be unable to register the mortgage and would be in breach of the terms upon which we are instructed by your lenders. If we have insufficient funds with which to pay Stamp Duty Land Tax, you must be aware that this will remain unpaid and that your title to the property will remain unregistered.
Stamp Duty land Tax has to be paid within 30 days of the transaction completing . It is your duty to pay SDLT not ours unless you have instructed us to do so on your behalf and have given us sufficient funds to pay it. After 30 days of completion, penalties and interest will be payable by you to HMRC. Interest is calculated on a daily basis according to base rate interest at any one time.
We are not liable to you or HMRC for failure to pay your SDLT if you have not put us in sufficient funds to do so and neither are we liable for any failure to register your title at the Land Registry on account of not being able to provide the Land Registry with a valid SDLT submission receipt of an SDLT return. If you do not provide us with sufficient funds to pay the Stamp Duty Land Tax we take no responsibility for the consequences. Payment of it on your behalf is an additional service provided by us only if requested by you (and for which we reserve the right to charge an additional fee). After delivery to you of the Financial Statement showing what sums are required to complete your purchase including the sum due for Stamp Duty Land Tax and Land Registry title registration fees, we shall not send you any further reminders of payments due. Payment of SDLT or making arrangements to pay it either through us or by yourself is your responsibility and not ours. Our role in acting for you on the purchase ends on the date of the transfer but we will on receipt of further instructions and funds arrange to pay the SDLT and complete the title registration. You are on notice accordingly.
Interest
Interest will be calculated and accounted for to you net where it is fair and reasonable to do so and at a fair and reasonable rate in all of the circumstances. Interest will be calculated daily and will normally run from the date(s) when funds are received by us until the date(s) on the cheque(s) or other payment issued to you.
Interest will be charged by us on accounts which are not paid within that time, at the higher for the time being of
- the judgment rate for Court proceedings (currently 8% pa), and
- the statutory rate permissible under the Late Payment of Commercial Debts (Interest) Act 1988.
Any money received on your behalf will be held in our client account held with HSBC Bank plc. HSBC Bank plc is considered (by themselves) as one of the safest banks worldwide with assets in excess of £1.2TR. We cannot however be liable if for any reason HSBC Bank plc collapses and monies held in it are frozen or irrecoverable because of events beyond our control. It is not considered by HSBC currently that HSBC Bank plc is likely to be affected by past “events of collapse” or that your money held by us in that bank is at risk but we are in no position either to challenge or confirm this supposition. HSBC is covered by the Financial Services Compensation Scheme (FSCS). The FSCS can pay compensation to depositors if the bank is unable to meet its financial obligations. Most depositors including this firm are covered by the scheme. An eligible depositor is entitled to claim up to GBP 85,000. If you would prefer us to hold your monies in a different bank or would like us to split funds between banks then please discuss alternative arrangements with us. Otherwise we shall assume you accept the risk.
Interest will be calculated and accounted for to you net where it is fair and reasonable to do so and at a fair and reasonable rate in all of the circumstances. Interest will be calculated normally runs from the date(s) when funds are received by us until the date(s) on the cheque(s) issued to you.
Commissions
In cases where we receive commission from third parties, the amount we receive will normally be credited to you against our fees etc. In some cases we may suggest that we retain such commission in lieu of fees which we would otherwise have charged you, but we will let you know when we believe this is an appropriate course of action, and will not take this step without your written agreement. Please note that we would not normally account to you for commission of less than £20. We have no commission arrangements with any third parties at all and it is our intention to keep that status quo for as long as possible.
Value Added Tax at standard rate is due on our charges, and on most of the disbursements we are likely to have to make on your behalf. The standard rate of UK vat has been 20% from 4th January 2011.
Please note that we are entitled to retain any papers, money or other property belonging to you, which is in our possession, if any moneys are due to us but unpaid. This is known as a “lien”.
6. Money Laundering & Terrorist
Financing Like most businesses involved with money and property, we are subject to the legislation regarding money laundering and terrorism. This has a number of effects upon our relationship.
First, we will need to ask you to provide, as soon as possible, suitable identification for yourself, and sometimes for people related to you. Our normal practice is to ask for a certified copy of your passport, or production to us of the original so that we can copy it for our files; a recent utility bill in your name and sent to your address. If you have a driving licence with a photograph that too should be produced to us. If you are a director of a company we shall need to see evidence of that directorship. If you are giving us instructions on behalf of a person or entity other than yourself then we need written authority from the person or entity whose interests you are representing that you do so with their full authority and the like evidence that that person or entity exists. We shall require your date of birth, your NHI number and an indication as to how long you have lived at your current address so that we are able to verify all information from a confidential anti money laundering organisation for which we will have to charge you a sum of £18 plus vat. If a company search is also required then the cost of our making such a search will be passed on to you .
Secondly if you are instructing us in the name of a company you must provide us with its Certificate of Incorporation, its memorandum and articles of association, an up to date register of members; a board resolution authorising the transaction and you or others to instruct us/sign legal instruments in the name of the company and the personal positive identification as above for that authorised person (s). We need to be given sample signatures of persons authorised to sign legal documents and to be able to check from their passport or driving licence that the signatures match each other. This is for your own and the company’s protection. If the company is registered off shore we may ask you to obtain Legal Opinion from lawyers resident in that jurisdiction as to the good standing and status of the company and its ability to enter into the proposed transaction but we shall need as a minimum the documents referred to above. We shall as a matter of course undertake a basic Companies House check for all UK companies as to its status and will charge you a sum of £10 plus vat.
If you cannot provide us with identification of the sort mentioned, then please let us know promptly and we can discuss other possible ways of obtaining the necessary identification evidence. This is likely to be from searches as indicated above.
It is our policy not to accept payments in cash, in respect of any aspect of your matter, in excess of £500. If you deposit cash directly or indirectly with our bank in excess of that sum or by a series of payments on the same day or over the space of a few days exceeding that sum, we will refund the monies so far as possible to source and will refuse to accept them. We may also be obliged to report the fact of unusual cash payments into our client account to other relevant authorities. We will not know (unless you have previously given us a satisfactory explanation) how you came to be in possession of such cash and will be bound to presume that there has been an illegality involved (such as tax evasion). We reserve the right to charge you for the time and costs spent in returning such funds and any additional checks we decide are necessary to establish the source of those funds. Similarly, any monies which we have to pay to you will be paid by bank transfer or cheque to you, and not in cash, nor, unless specified in writing by you and we are satisfied as to the reason, to a third party. We do not refund by cash client monies held by us but only by electronic funds transfer or by cheque. If monies otherwise due to you are to be paid to a third party then you must give us your clear written instructions to do so and the reasons why such a payment is being made. This will not be necessary for the redemption of any mortgage or selling agent’s commissions due arising in the ordinary course of any particular transaction. Unusual requests will have to be verified by us and if necessary reported to other authorities.
We are professionally and legally obliged to keep your affairs confidential. However, the law does say that solicitors may be obliged to make a disclosure to the authorities where they know or suspect that a transaction may involve money laundering (basically using money which represents the proceeds of any crime be that crime in the UK or elsewhere and what is a crime has a very wide definition including tax evasion) or terrorist financing. If we make a disclosure in relation to your matter, we may not be able to tell you of this. We may have to stop working on your matter for a period of time, and unfortunately we may not be able to tell you why.
7. Mortgage fraud
If the matter in which we are acting for you is the purchase of a property, it may be that we are also acting for your lender. This will be made clear to you in our initial letter. If this be the case, then we will be under a duty to the lender to reveal all relevant facts about the matter. This will include any difference between your mortgage application, and any information we receive during the transaction; and any cash back payments or discount schemes from which you may benefit. Please note that we do not accept instructions on any matter which involves or could involve any back to back arrangements, discounts or other incentives and if we discover after accepting instructions that any of these matters is involved we shall be entitled to and will immediately cease acting for you. You must not misrepresent to us the purchase or selling price of property the conveyancing of which we are handling for you. Inflating the value of fixtures and fittings in order to reduce the asking price in order for example to reduce the liability to stamp duty land tax or vat is a fraud and if we suspect this may be the case we shall raise our concerns with you and are bound to inform any lender involved. A material difference between a lender’s valuation and any asking price is also sufficient to put us on enquiry and we may not only have to report our concerns to relevant authorities but to cease acting for you in the transaction. By accepting these terms and conditions you agree that where we are also instructed for your lender we are authorised by you to disclose all and any information to your lender which causes us concern and/or upon which we remain dissatisfied after raising it with you and may in certain circumstances terminate our retainer with you.
8. Data Protection
We will use the information which you provide to us primarily for the purpose of providing legal services to you, and for related purposes. Those may include updating and enhancing our records, analysing those records to help us manage our practice better, and statutory and regulatory compliance. We may outsource the information to help us in the provision of legal services to you. If we do, we will ensure that the third party involved is bound by appropriate data protection provisions, and is bound to maintain confidentiality and security of data. If you do not wish us to use such third parties, please notify us in writing. Our use of your information is, subject to your instructions, subject to the Data Protection Act 1988, and to our duty of confidentiality. Please note that our work for you may require us to give information to third parties, such as expert witnesses and other professional advisers. You have a right of access under data protection legislation to the personal data which we hold about you. 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 such information please notify us in writing.
9. Storage of papers
After completing the work for you, we are entitled to keep your papers and documents until we have been paid. After that, you are entitled to have these returned to you. If you do not ask for any to be returned, we will keep them for at least six years. For certain property transactions we may keep them for twelve years. We will destroy them after the appropriate period, and these terms give us your authority to do so. We do not charge for the storage of normal files, but if the files on your matter are particularly bulky (e.g. case papers in litigation, or over two standard document wallet files) we reserve the right to charge you at the rate of £20 per archive box, per annum, payable annually in advance for so long as we hold the papers. If we have archived files away from our office, and you ask us to retrieve them after the closure of the matter, then we may make a charge for retrieval, based both on the time we have to take, and any charges we have to pay to our storage company. Similarly, if you ask for copies of any documents, we may charge for those copies. In any such event, we will notify you of our proposed charges before undertaking the steps in question.
10. Tax advice
Any work that we do for you may involve tax or duty implications, or necessitate the consideration of tax planning strategies. Unless we expressly inform you in writing to the contrary, we are unable to advise on any such matters, and will not do so. We can accept no liability for such matters, if we fail to advise you of the tax consequences of any transaction we carry out for you (even if those consequences might be deemed obvious). You are advised at all times to seek your own tax advice, and / or to consult a tax specialist, with whom we will happily liaise. We are neither accountants nor tax lawyers.
11. Plans and maps and searches
In certain matters we have to rely on plans and map, such as filed plans at HM Land Registry, lease plans, or other plans made by surveyors to indicate the extent of property and any buildings erected upon it. We clearly cannot visit every site personally, and we are under no duty to do so. We cannot therefore guarantee that any plans provided to us are accurate, or adequately indicate the extent of any property or buildings. We specifically disclaim any liability if in good faith we have relied on any plan or map as being accurate If you have any reason to believe that plans are or could be inaccurate, please bring this to our attention. You are advised to check all plans and maps carefully yourself and preferably by having visited the site and checking the plans. Some plans, especially old ones, can be misleading. Please note in particular that if an area is shown on any plan that that in itself does not mean that the title to it is guaranteed. It may have been shown for another purpose which may not always be clear. Some matters may not even be shown on a map or plan or even as a land charge such as local authority parking restrictions.
We strongly recommend therefore that (a) you visit the site yourself and (b) that you engage the services of an independent surveyor in cases where there could be a potential problem or in any event. If you choose not to instruct a surveyor and in good faith we misinterpret any plan or drawing or are unaware of matters affecting the site which are not revealed on usual searches then we cannot be held liable for the consequences. We are not surveyors. We use accredited agencies to carry out local authority and other searches affecting title to property; planning consents and other matters and rely on them as being accurate. It is rare for such agencies or Local Authorities to make errors in reporting but it can happen and you should be aware of this risk. For instance, on one occasion a search agency searched against an address with a plan for a different address and the local authority reported that there were no extant planning consents for that address when in fact there were. The local authority should have checked that the plan did not match the address and so should the search agency. We, in good faith, in reliance that the search results were accurate, reported that there were no adverse planning consents affecting the property. On that occasion, the client was on enquiry from selling agents that there could have been an adverse planning consent. You are therefore asked to check all search results yourself for accuracy. They can be made available to you to you for the purpose on request and we recommend you ask to see them prior to entering into any contract and check them yourself. If you have any concerns about the accuracy of any search results you must bring such concerns to our immediate attention so that we may undertake further searches and investigations on your behalf.
12. Evidence
If we are acting for you in a litigation matter, it is very important that you do not dispose of or alter any physical evidence, document or other information relating to the case. This applies to all data stored electronically. There is a continuing duty of full disclosure of all evidential material in whatever media is it kept. You should keep all emails sent and received by you. We suggest that every email is printed out and kept on a file if your email provider is one which automatically deletes emails over a certain date. New practice rules have recently been introduced relating to e-disclosure in the Civil Practice Rules.
13. Applicable law
The law applicable to the contract between us, for the supply of our services, will be the law of England and Wales applicable at the time, and will be subject exclusively to the English and Welsh Courts.
14. Termination
You may terminate you instructions to us at any time, by giving written notice to that effect. We may only stop acting for you if we have a good reason to do so, such as the breakdown of a relationship of confidence between us, or a conflict of interest arises, or you do not pay any bill. We also reserve the right to terminate our retainer if we consider that you have unreasonably refused to heed our reasonable advice or that we consider that your best interests would be better served by other representation. This could arise for instance in litigation or potential litigation in which we and/or counsel consider that your chances of success are so limited that it would be within your best interests not to pursue it further having regard to the risk of costs. It would be difficult for us to continue to act in the light of such advice if despite that advice you insisted in carrying on. Indeed, we would say that it would not be within your best interests that we should continue acting for you in such circumstances. In other words, if we begin acting for you in litigation or potential litigation it must be understood and accepted by you that our contract with you may not extend to continuing to act for you until the end of it particularly if matters arise during the course of it which had we known about from the beginning of our retainer we would not have entered into the contract with you or, if you fail adequately to continue to put us in sufficient funds to advance the case to trial. Even if we deliver provisional interim bills on account to you from time to time, that does not mean that we should be put in the position of having to fund your case ourselves because you have not paid such interim bill or refuse to put us in sufficient and adequate funds on account of future costs. If we decide to terminate our retainer, we are obliged give you reasonable written notice. We shall wherever possible or practicable attempt to recommend an alternative solicitor to represent you but we cannot guarantee that we will be successful in such attempts. On termination for any reason, we retain all rights to payment under these terms. If we are due payment of a fixed sum for a matter, and our retainer is terminated before the end of the matter, then we will be entitled to a reasonably proportionate amount of that sum.
You agree that, if for any reasons our retainer is terminated before completion of a litigation matter, we are entitled to have our name removed from the Court record as acting for you, and you will consent to an application to that effect. By this letter you appoint us your attorney for signing such consent on your behalf if you fail to do so within a reasonable time of request.
In summary, by accepting these terms and conditions you agree that our contract for services is not an entire one.
15. Financial services - investments
We are not authorised by the Financial Services Authority. If, while we are acting for you, you need advice on investments, we will probably refer you to someone who is authorised to provide the necessary advice.
However, we may provide certain limited investment advice services where these are closely linked to the legal work we are doing for you. This is because we are members of the Law Society of England and Wales, which is a designated professional body for the purposes of the Financial Services and Markets Act 2000.
The Solicitors Regulation Authority is the independent regulatory arm of the Law Society. The Office for Legal Complaints is the independent complaints-handling arm of the Law Society. If you are unhappy with any investment advice you receive from us, you should raise your concerns with either of those bodies.
We do not however purport to give you any financial or investment advice and any opinions expressed by us should not be relied or acted upon without taking proper alternative advice from a competent independent and regulated financial adviser.
16. Financial services – insurance mediation services
Whilst we are not authorised by the Financial Services Authority we are, however, included on the register maintained by the Financial Services Authority so that we may carry on insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts. 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 website at www.fsa.gov.uk/Pages/register/index.shtml.
The Law Society of England and Wales is a designated professional body for the purposes of the Financial Services and Markets Act 2000. The Solicitors Regulation Authority is the independent regulatory arm of the Law Society. The Legal Ombudsman is the independent complaints-handling body. If you are unhappy with any insurance advice you receive from us, you should raise your concerns with either of those bodies. As indicated elsewhere in these terms and conditions.
17. Vacant Possession
If you are selling property, it is a standard condition of the contract for sale that you will pass title to it with “vacant possession”. This means that you yourself must have moved out of it as well as any tenant or person living there along with all items of furniture not included in the sale contract on the day of completion. If you have tenants in the property, you must ensure that they are given due notice to quit. There can be a real problem if a tenant refuses to move out and claims some kind of possessory title which means that you cannot get them out without a court order. Obtaining such a court order can take many weeks if not months and success is not always guaranteed. You are advised to tell us if the property you intend to sell is tenanted or otherwise before exchange of contracts and inform us of the details of the type of tenancy. Failure to do so could prove very expensive. We cannot be held in any way responsible for your being sued for damages for breach of contract for failure to give vacant possession on the day of completion if we ourselves were unaware before exchange of contracts that someone other than yourself is living in the property and who claims an entitlement to remain there and you have done nothing to ensure that they have vacated prior to exchange or completion.
18. Solicitors Undertakings
We are not prepared and will not give any undertaking to third parties to pay money on your behalf without having the required sum in cleared funds in our client account or authority to use funds contractually bound to come into our client account for the purpose. If in good faith we have given an undertaking without cleared funds being in our client account and monies promised do not materialise, we reserve the right to look to you for reimbursement and if necessary the costs of any proceedings made against you for recovery of the sum in question. Interest will also be sought on any sums paid out in respect of any undertaking made at the material time in good faith and on your representations express or implied that such sums would be in our account to enable us to honour such undertaking.
19. Contentious Matters and Funding
When we are acting for you in a contentious matter or where the matter becomes contentious the following additional provisions will apply.
19.1. The Civil Procedure Rules (“CPR”)
The CPR are rules by which litigation is conducted in England and Wales. The overriding objective of the CPR is to make the process of civil litigation, expeditious, proportionate and in theory, less expensive.
The CPR place a number of important obligations upon you as a litigant or potential litigant. For example, you are bound to consider alternative ways of resolving the dispute. The CPR have a number of protocols which have to be followed rigorously before proceedings can be issued. You are required to certify the truth of all witness statements you make and on every court document. You are required to give close and careful consideration to the cost implication of both your instructions and the claim generally.
In addition, the courts themselves no have very considerable Case management powers which apply to your claim and be binding upon you and all other parties. These powers include the stipulation of binding directions and other time limits. Failure to comply may well entitle the court to strike out your case with serious cost consequences.
19.2. Expenses and fees paid by/to other parties
The basic principle in civil litigation as set out in the CPR is that the successful party is usually entitled to recover the bulk (not by any means 100%) of their costs from their unsuccessful opponent. These costs are subject to assessment by the court under the Cost assessment Rules. If you are a successful litigant we will seek to recover the majority of the legal costs you have incurred.
The basic principle regarding recovery of costs is subject to a number of important considerations.
(a) You will always be responsible for paying our costs in full in accordance with the rates and terms upon which we have agreed with you from time to time to act for you regardless of the possibility of obtaining repayment from a losing party.
(b) The Cost Assessment Rules are complicated. For Fast Track cases, namely those with a value of between £5,000 and £25,000 (or £1,000-£25,000 in personal injury claims) only limited costs are recoverable, For Multi Track cases , namely any case valued in excess of £25,000, costs are normally recoverable and assessed on what is known as the Standard Basis. The court will also consider issues of proportionality. This will deal for example with the value of the claim compared with the costs you have incurred. If the court considers those costs are disproportionate, they will not be allowed in full. The court will also consider the level of disbursements such as counsel’s fees and experts fees incurred by you as compared with those incurred by your opponent. It is likely therefore that you will not be able to recover all your costs from your opponent.
(c) In addition, it may be necessary to take separate legal action to enforce the payment of a Costs Order against a losing party and you will be responsible for paying our fees and expenses in connection with such enforcement action and the cost assessment process generally.
(d) More detailed information about recovery of costs in contentious matters may be obtained from us at any time.
19.3. Payment of your Opponent/s Fees/Expenses
The court may order you to pay your opponent’s legal fees and expenses if, for example, you lose your case or any interim application. Therefore you should always consider very seriously the risk of costs in pursuing any claim not only your own costs but the risk of having to pay the costs of your opponent.
19.4. Interest on costs
If any order for costs is made in your favour it may be possible to recover interest on those costs from your opponent from the date on which the order for costs was made. We will account to you for such interest to the extent you have paid our fees or expenses on account but we will be entitled to retain the balance of that interest.
19.4. Alternative Funding Options
Set out below are details of alternative funding arrangements which may be available to you depending on the nature of your case. Please discuss these with us at the outset if any of them could be available to you.
First you may be eligible for public funding (formerly known as Legal Aid). This firm does not undertake publicly funded work. Public funding is only available for persons on low incomes and/or value of assets. It is available for limited areas of matter. If you consider you may be eligible, then our advice is to contact the Law Society or search the web for a firm of solicitors who can assist you. Our associated firm of McMillan Williams has franchises for certain areas of law from the Legal Services Commission and we suggest that you contact Nicola Manning of that firm for assistance.
Secondly, very often, your buildings or motor vehicle insurance policy will cover you for legal expenses. Some credit card issuers have a similar facility. You are recommended to check all insurance policies and credit card contracts to ascertain whether there could be scope for claiming your legal expenses under one of them. Please let us know if that be the case.
Thirdly, there could be funding available from third parties such as a trade union, family members or an employer.
Fourthly, Conditional Fee Agreements. We do not undertake this type of funding arrangement but our associated practice of McMillan Williams can do so in certain circumstances. The partners of this firm are non-remunerated external consultants to McMillan Williams save for client work we undertake for them and there are no commission arrangements in place.
19.5. Legal Expense Insurance
19.5.1. “Before the Event Policies”
There are legal expenses policies which can be taken out , usually with an annual premium to provide cover for a future legal problem. As indicated above, you may already have cover for example as an “add on” to a home contents, car insurance policy or through your credit card. We should warn you that they are frequently very limited in what they cover and may include restrictions on your freedom of choice of lawyer. Please check all policies and credit card terms and conditions to see if you are eligible to claim assistance with legal fees and let us see a copy of the policy or applicable terms.
19.5.2. “After the Event Policies”
These are policies which help to cover the costs of litigation once the dispute has arisen. If the premium is affordable then it can provide some peace of mind against the possibility of the totals litigation costs if you lose your case. Such policies will not generally cover payment of damages payable to your opponent but only the costs. Insurance cover can be purchased to protect against (a) your opponent’s legal costs and charges; (b) your own disbursements/expenses such as fees payable to the court, counsel and experts and (c) you own legal costs. The usual basis is that payment is made only if you fail completely with your case and of course, that risk is taken into consideration by the insurer before agreeing cover. The problem with all insurance is paying the premium. Points for you to consider are as follows.
The money has to be found to pay the premium; Sometimes we may be able to help you to arrange this. Some policies provide for the premium to be stepped or deferred. The court may order in contentious matters that your opponent repay you the premium or a proportion of it, if you win. (The fact of ATE has to be disclosed to your opponent at the outset). You should not however rely on the court making such an order. in other words, the premium may not be recoverable. Premiums for road traffic accident cases can be relatively modest. For other types of litigation they may be about 20% of the total legal charges against which you wish to protect yourself. In substantial commercial litigation, the premiums may be considerably higher than 20% and based on a proportion of both sides costs together with all the disbursements such as court and experts fees. We have provided the above information as information rather than specific advice. We are not insurance experts and cannot be deemed to be aware of all the possible insurance policies available to the public. Wee do not undertake any responsibility to give you “best advice” on these products. You should rely on your broker and not us . We cannot guarantee that the means of funding suggested to you by us will either be suitable for the purpose or the most appropriate to your needs.
20. Email
We routinely use email to communicate with you and others involved in your transaction but even though we employ all usual firewall and anti-spam devices, email is not secure. If you would prefer us not to communicate with you or others by email then you must advise us at the outset. We shall assume otherwise that you consent to our use of it. We cannot accept liability for loss of confidential information over the internet if our systems are hacked into or otherwise illegally interfered with. A copy of our email policy is available on request. Please note that we do no accept service of legal process by email.
21. Costs risks in litigation
Although we have covered this in Paragraph 19 above we feel it necessary to repeat this as a separate head. There are inherent risks when undertaking litigation. If you lose, not only will you be liable for our costs and expenses, but you will also be liable for the costs and expenses of the successful party. The merits of continuing to proceed will be kept under constant review and if it becomes commercially unviable to continue you will be advised accordingly. Litigation is a remedy of last resort in many cases. The Courts fully expect parties to a dispute to have tried all possible means to resolve their differences before embarking on legal proceedings. This can be done through solicitors or mediation services or any other organisations that offer Alternative Dispute Resolution. If litigation embarked upon is later abandoned by you, then again you will be liable not only for your own costs and expenses but also for the other side’s costs to the date of abandonment and quite possibly damages as well.
22. Property Purchases and Surveys
It is very important that you have any property you are about to purchase, properly and independently surveyed by a qualified surveyor. This will highlight any structural defects and if you buy in reliance of your own survey report and it turns out to be wrong, you could have a cause of action in negligence against your surveyor who has by law to carry professional indemnity insurance. You should not rely on any survey undertaken by your mortgagees because all they are ascertaining is the value of the property (defects and all) against the amount of the loan and the survey is primarily undertaken for them and not you. It is particularly important that you engage surveyors for any new build or off plan purchase. They should be asked to monitor the development as it progresses. Although engaging surveyors can sometimes be expensive it is well worth doing so. We cannot be held liable should you choose to ignore this advice and proceed to purchase property without the benefit of your own surveyor’s report and, in the case of a new build, satisfactory signing off of the development as a whole after practical completion. The maxim of Caveat Emptor (Buyer Beware) applies to all property purchases and you are on notice accordingly.
23. The Consumer Protection (Distance Selling) Regulations 2000
These will only apply if your matter does not relate to or arise from your business activities. If applicable, they require us to tell you that if your instructions have not been given to us at a face to face meeting, but by for example, fax, email or telephone, you have a right to cancel those instructions without any cost to you within seven working days of written instructions being received by us. You can cancel the agreement by written notice to our office or by sending notice of cancellation by post, fax or email. You may not, however, cancel the agreement without charge once we have, with your permission, express or implied, started to do the work on your behalf. By agreeing to these terms of business you are agreeing that to avoid delay in dealing with your matter we my start work straightaway and that we do not have to wait for the cancellation period to expire. On property transactions it is our custom to put in hand searches immediately we have received instructions. The Distance Selling Regulations require us to tell you that we cannot guarantee to complete your work within thirty days and by accepting these terms of business you acknowledge that fact.
24. Expenses and Outlays
We frequently have to carry out searches and other outlays on your behalf and we ask and you will agree that you put us in funds for a minimum of £750 on account to cover our initial outlays to be held to your account. We set out below a table of our charges for undertaking preliminary searches and for other overheads such as amongst other matters the cost of our time spent in undertaking this work. These charges will be payable by you in addition to our professional fees. Some will contain a small profit element. Where we have acted for you or act for you in a number of different transactions over a period of time if we find that we have surplus funds on our ledgers for one matter we will use those funds first in discharging our untilled outlays paid or incurred by us on your behalf on other transactions. Such intra ledger transfers will be shown on statements of account delivered to you from time to time. You are entitled to request a full statement of account from us at any time. We will provide you with a statement of account for each transaction at or before or as soon as practicable after completion of it and if there have been a number of similar other transactions we will endeavour to provide a full statement of account on a composite basis at a convenient stage or on your request particularly where there have been intra ledger transfer of both funds and outlays incurred. We are frequently asked by clients to use monies given to us for one transaction to use them for another transaction altogether and these funds will be shown as an intra ledger transfer on such composite statements of account.
25. Overriding Interests attaching to property
Under the Land Registration Act 2002, you must disclose to the Land Registry certain unregistered rights or interests that affect the property (“Unregistered Rights”) of which you are aware. These must be listed in the application form that is submitted by your conveyancer to the Land Registry. The Land Registry may note these Unregistered Rights against your Title.
Please tell us of any of the following Unregistered Rights of which you are aware, other than any that we have already told you about from the information that we have about the property. You also need to tell us about any Unregistered Rights of which you become aware between now and the date when the application to the Land Registry is made.
Failure to disclose any Unregistered Rights of which you are aware could lead to a claim against you by any person who is adversely affected as a result.
The Unregistered Rights that need to be disclosed are:
Interest will be calculated and accounted for to you net where it is fair and reasonable to do so and at a fair and reasonable rate in all of the circumstances. Interest will be calculated normally runs from the date(s) when funds are received by us until the date(s) on the cheque(s) issued to you.
Commissions
In cases where we receive commission from third parties, the amount we receive will normally be credited to you against our fees etc. In some cases we may suggest that we retain such commission in lieu of fees which we would otherwise have charged you, but we will let you know when we believe this is an appropriate course of action, and will not take this step without your written agreement. Please note that we would not normally account to you for commission of less than £20. We have no commission arrangements with any third parties at all and it is our intention to keep that status quo for as long as possible.
Value Added Tax at standard rate is due on our charges, and on most of the disbursements we are likely to have to make on your behalf. The standard rate of UK vat has been 20% from 4th January 2011.
Please note that we are entitled to retain any papers, money or other property belonging to you, which is in our possession, if any moneys are due to us but unpaid. This is known as a “lien”.
6. Money Laundering & Terrorist
Financing Like most businesses involved with money and property, we are subject to the legislation regarding money laundering and terrorism. This has a number of effects upon our relationship.
First, we will need to ask you to provide, as soon as possible, suitable identification for yourself, and sometimes for people related to you. Our normal practice is to ask for a certified copy of your passport, or production to us of the original so that we can copy it for our files; a recent utility bill in your name and sent to your address. If you have a driving licence with a photograph that too should be produced to us. If you are a director of a company we shall need to see evidence of that directorship. If you are giving us instructions on behalf of a person or entity other than yourself then we need written authority from the person or entity whose interests you are representing that you do so with their full authority and the like evidence that that person or entity exists. We shall require your date of birth, your NHI number and an indication as to how long you have lived at your current address so that we are able to verify all information from a confidential anti money laundering organisation for which we will have to charge you a sum of £18 plus vat. If a company search is also required then the cost of our making such a search will be passed on to you .
Secondly if you are instructing us in the name of a company you must provide us with its Certificate of Incorporation, its memorandum and articles of association, an up to date register of members; a board resolution authorising the transaction and you or others to instruct us/sign legal instruments in the name of the company and the personal positive identification as above for that authorised person (s). We need to be given sample signatures of persons authorised to sign legal documents and to be able to check from their passport or driving licence that the signatures match each other. This is for your own and the company’s protection. If the company is registered off shore we may ask you to obtain Legal Opinion from lawyers resident in that jurisdiction as to the good standing and status of the company and its ability to enter into the proposed transaction but we shall need as a minimum the documents referred to above. We shall as a matter of course undertake a basic Companies House check for all UK companies as to its status and will charge you a sum of £10 plus vat.
If you cannot provide us with identification of the sort mentioned, then please let us know promptly and we can discuss other possible ways of obtaining the necessary identification evidence. This is likely to be from searches as indicated above.
It is our policy not to accept payments in cash, in respect of any aspect of your matter, in excess of £500. If you deposit cash directly or indirectly with our bank in excess of that sum or by a series of payments on the same day or over the space of a few days exceeding that sum, we will refund the monies so far as possible to source and will refuse to accept them. We may also be obliged to report the fact of unusual cash payments into our client account to other relevant authorities. We will not know (unless you have previously given us a satisfactory explanation) how you came to be in possession of such cash and will be bound to presume that there has been an illegality involved (such as tax evasion). We reserve the right to charge you for the time and costs spent in returning such funds and any additional checks we decide are necessary to establish the source of those funds. Similarly, any monies which we have to pay to you will be paid by bank transfer or cheque to you, and not in cash, nor, unless specified in writing by you and we are satisfied as to the reason, to a third party. We do not refund by cash client monies held by us but only by electronic funds transfer or by cheque. If monies otherwise due to you are to be paid to a third party then you must give us your clear written instructions to do so and the reasons why such a payment is being made. This will not be necessary for the redemption of any mortgage or selling agent’s commissions due arising in the ordinary course of any particular transaction. Unusual requests will have to be verified by us and if necessary reported to other authorities.
We are professionally and legally obliged to keep your affairs confidential. However, the law does say that solicitors may be obliged to make a disclosure to the authorities where they know or suspect that a transaction may involve money laundering (basically using money which represents the proceeds of any crime be that crime in the UK or elsewhere and what is a crime has a very wide definition including tax evasion) or terrorist financing. If we make a disclosure in relation to your matter, we may not be able to tell you of this. We may have to stop working on your matter for a period of time, and unfortunately we may not be able to tell you why.
7. Mortgage fraud
If the matter in which we are acting for you is the purchase of a property, it may be that we are also acting for your lender. This will be made clear to you in our initial letter. If this be the case, then we will be under a duty to the lender to reveal all relevant facts about the matter. This will include any difference between your mortgage application, and any information we receive during the transaction; and any cash back payments or discount schemes from which you may benefit. Please note that we do not accept instructions on any matter which involves or could involve any back to back arrangements, discounts or other incentives and if we discover after accepting instructions that any of these matters is involved we shall be entitled to and will immediately cease acting for you. You must not misrepresent to us the purchase or selling price of property the conveyancing of which we are handling for you. Inflating the value of fixtures and fittings in order to reduce the asking price in order for example to reduce the liability to stamp duty land tax or vat is a fraud and if we suspect this may be the case we shall raise our concerns with you and are bound to inform any lender involved. A material difference between a lender’s valuation and any asking price is also sufficient to put us on enquiry and we may not only have to report our concerns to relevant authorities but to cease acting for you in the transaction. By accepting these terms and conditions you agree that where we are also instructed for your lender we are authorised by you to disclose all and any information to your lender which causes us concern and/or upon which we remain dissatisfied after raising it with you and may in certain circumstances terminate our retainer with you.
8. Data Protection
We will use the information which you provide to us primarily for the purpose of providing legal services to you, and for related purposes. Those may include updating and enhancing our records, analysing those records to help us manage our practice better, and statutory and regulatory compliance. We may outsource the information to help us in the provision of legal services to you. If we do, we will ensure that the third party involved is bound by appropriate data protection provisions, and is bound to maintain confidentiality and security of data. If you do not wish us to use such third parties, please notify us in writing. Our use of your information is, subject to your instructions, subject to the Data Protection Act 1988, and to our duty of confidentiality. Please note that our work for you may require us to give information to third parties, such as expert witnesses and other professional advisers. You have a right of access under data protection legislation to the personal data which we hold about you. 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 such information please notify us in writing.
9. Storage of papers
After completing the work for you, we are entitled to keep your papers and documents until we have been paid. After that, you are entitled to have these returned to you. If you do not ask for any to be returned, we will keep them for at least six years. For certain property transactions we may keep them for twelve years. We will destroy them after the appropriate period, and these terms give us your authority to do so. We do not charge for the storage of normal files, but if the files on your matter are particularly bulky (e.g. case papers in litigation, or over two standard document wallet files) we reserve the right to charge you at the rate of £20 per archive box, per annum, payable annually in advance for so long as we hold the papers. If we have archived files away from our office, and you ask us to retrieve them after the closure of the matter, then we may make a charge for retrieval, based both on the time we have to take, and any charges we have to pay to our storage company. Similarly, if you ask for copies of any documents, we may charge for those copies. In any such event, we will notify you of our proposed charges before undertaking the steps in question.
10. Tax advice
Any work that we do for you may involve tax or duty implications, or necessitate the consideration of tax planning strategies. Unless we expressly inform you in writing to the contrary, we are unable to advise on any such matters, and will not do so. We can accept no liability for such matters, if we fail to advise you of the tax consequences of any transaction we carry out for you (even if those consequences might be deemed obvious). You are advised at all times to seek your own tax advice, and / or to consult a tax specialist, with whom we will happily liaise. We are neither accountants nor tax lawyers.
11. Plans and maps and searches
In certain matters we have to rely on plans and map, such as filed plans at HM Land Registry, lease plans, or other plans made by surveyors to indicate the extent of property and any buildings erected upon it. We clearly cannot visit every site personally, and we are under no duty to do so. We cannot therefore guarantee that any plans provided to us are accurate, or adequately indicate the extent of any property or buildings. We specifically disclaim any liability if in good faith we have relied on any plan or map as being accurate If you have any reason to believe that plans are or could be inaccurate, please bring this to our attention. You are advised to check all plans and maps carefully yourself and preferably by having visited the site and checking the plans. Some plans, especially old ones, can be misleading. Please note in particular that if an area is shown on any plan that that in itself does not mean that the title to it is guaranteed. It may have been shown for another purpose which may not always be clear. Some matters may not even be shown on a map or plan or even as a land charge such as local authority parking restrictions.
We strongly recommend therefore that (a) you visit the site yourself and (b) that you engage the services of an independent surveyor in cases where there could be a potential problem or in any event. If you choose not to instruct a surveyor and in good faith we misinterpret any plan or drawing or are unaware of matters affecting the site which are not revealed on usual searches then we cannot be held liable for the consequences. We are not surveyors. We use accredited agencies to carry out local authority and other searches affecting title to property; planning consents and other matters and rely on them as being accurate. It is rare for such agencies or Local Authorities to make errors in reporting but it can happen and you should be aware of this risk. For instance, on one occasion a search agency searched against an address with a plan for a different address and the local authority reported that there were no extant planning consents for that address when in fact there were. The local authority should have checked that the plan did not match the address and so should the search agency. We, in good faith, in reliance that the search results were accurate, reported that there were no adverse planning consents affecting the property. On that occasion, the client was on enquiry from selling agents that there could have been an adverse planning consent. You are therefore asked to check all search results yourself for accuracy. They can be made available to you to you for the purpose on request and we recommend you ask to see them prior to entering into any contract and check them yourself. If you have any concerns about the accuracy of any search results you must bring such concerns to our immediate attention so that we may undertake further searches and investigations on your behalf.
12. Evidence
If we are acting for you in a litigation matter, it is very important that you do not dispose of or alter any physical evidence, document or other information relating to the case. This applies to all data stored electronically. There is a continuing duty of full disclosure of all evidential material in whatever media is it kept. You should keep all emails sent and received by you. We suggest that every email is printed out and kept on a file if your email provider is one which automatically deletes emails over a certain date. New practice rules have recently been introduced relating to e-disclosure in the Civil Practice Rules.
13. Applicable law
The law applicable to the contract between us, for the supply of our services, will be the law of England and Wales applicable at the time, and will be subject exclusively to the English and Welsh Courts.
14. Termination
You may terminate you instructions to us at any time, by giving written notice to that effect. We may only stop acting for you if we have a good reason to do so, such as the breakdown of a relationship of confidence between us, or a conflict of interest arises, or you do not pay any bill. We also reserve the right to terminate our retainer if we consider that you have unreasonably refused to heed our reasonable advice or that we consider that your best interests would be better served by other representation. This could arise for instance in litigation or potential litigation in which we and/or counsel consider that your chances of success are so limited that it would be within your best interests not to pursue it further having regard to the risk of costs. It would be difficult for us to continue to act in the light of such advice if despite that advice you insisted in carrying on. Indeed, we would say that it would not be within your best interests that we should continue acting for you in such circumstances. In other words, if we begin acting for you in litigation or potential litigation it must be understood and accepted by you that our contract with you may not extend to continuing to act for you until the end of it particularly if matters arise during the course of it which had we known about from the beginning of our retainer we would not have entered into the contract with you or, if you fail adequately to continue to put us in sufficient funds to advance the case to trial. Even if we deliver provisional interim bills on account to you from time to time, that does not mean that we should be put in the position of having to fund your case ourselves because you have not paid such interim bill or refuse to put us in sufficient and adequate funds on account of future costs. If we decide to terminate our retainer, we are obliged give you reasonable written notice. We shall wherever possible or practicable attempt to recommend an alternative solicitor to represent you but we cannot guarantee that we will be successful in such attempts. On termination for any reason, we retain all rights to payment under these terms. If we are due payment of a fixed sum for a matter, and our retainer is terminated before the end of the matter, then we will be entitled to a reasonably proportionate amount of that sum.
You agree that, if for any reasons our retainer is terminated before completion of a litigation matter, we are entitled to have our name removed from the Court record as acting for you, and you will consent to an application to that effect. By this letter you appoint us your attorney for signing such consent on your behalf if you fail to do so within a reasonable time of request.
In summary, by accepting these terms and conditions you agree that our contract for services is not an entire one.
15. Financial services - investments
We are not authorised by the Financial Services Authority. If, while we are acting for you, you need advice on investments, we will probably refer you to someone who is authorised to provide the necessary advice.
However, we may provide certain limited investment advice services where these are closely linked to the legal work we are doing for you. This is because we are members of the Law Society of England and Wales, which is a designated professional body for the purposes of the Financial Services and Markets Act 2000.
The Solicitors Regulation Authority is the independent regulatory arm of the Law Society. The Office for Legal Complaints is the independent complaints-handling arm of the Law Society. If you are unhappy with any investment advice you receive from us, you should raise your concerns with either of those bodies.
We do not however purport to give you any financial or investment advice and any opinions expressed by us should not be relied or acted upon without taking proper alternative advice from a competent independent and regulated financial adviser.
16. Financial services – insurance mediation services
Whilst we are not authorised by the Financial Services Authority we are, however, included on the register maintained by the Financial Services Authority so that we may carry on insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts. 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 website at www.fsa.gov.uk/Pages/register/index.shtml.
The Law Society of England and Wales is a designated professional body for the purposes of the Financial Services and Markets Act 2000. The Solicitors Regulation Authority is the independent regulatory arm of the Law Society. The Legal Ombudsman is the independent complaints-handling body. If you are unhappy with any insurance advice you receive from us, you should raise your concerns with either of those bodies. As indicated elsewhere in these terms and conditions.
17. Vacant Possession
If you are selling property, it is a standard condition of the contract for sale that you will pass title to it with “vacant possession”. This means that you yourself must have moved out of it as well as any tenant or person living there along with all items of furniture not included in the sale contract on the day of completion. If you have tenants in the property, you must ensure that they are given due notice to quit. There can be a real problem if a tenant refuses to move out and claims some kind of possessory title which means that you cannot get them out without a court order. Obtaining such a court order can take many weeks if not months and success is not always guaranteed. You are advised to tell us if the property you intend to sell is tenanted or otherwise before exchange of contracts and inform us of the details of the type of tenancy. Failure to do so could prove very expensive. We cannot be held in any way responsible for your being sued for damages for breach of contract for failure to give vacant possession on the day of completion if we ourselves were unaware before exchange of contracts that someone other than yourself is living in the property and who claims an entitlement to remain there and you have done nothing to ensure that they have vacated prior to exchange or completion.
18. Solicitors Undertakings
We are not prepared and will not give any undertaking to third parties to pay money on your behalf without having the required sum in cleared funds in our client account or authority to use funds contractually bound to come into our client account for the purpose. If in good faith we have given an undertaking without cleared funds being in our client account and monies promised do not materialise, we reserve the right to look to you for reimbursement and if necessary the costs of any proceedings made against you for recovery of the sum in question. Interest will also be sought on any sums paid out in respect of any undertaking made at the material time in good faith and on your representations express or implied that such sums would be in our account to enable us to honour such undertaking.
19. Contentious Matters and Funding
When we are acting for you in a contentious matter or where the matter becomes contentious the following additional provisions will apply.
19.1. The Civil Procedure Rules (“CPR”)
The CPR are rules by which litigation is conducted in England and Wales. The overriding objective of the CPR is to make the process of civil litigation, expeditious, proportionate and in theory, less expensive.
The CPR place a number of important obligations upon you as a litigant or potential litigant. For example, you are bound to consider alternative ways of resolving the dispute. The CPR have a number of protocols which have to be followed rigorously before proceedings can be issued. You are required to certify the truth of all witness statements you make and on every court document. You are required to give close and careful consideration to the cost implication of both your instructions and the claim generally.
In addition, the courts themselves no have very considerable Case management powers which apply to your claim and be binding upon you and all other parties. These powers include the stipulation of binding directions and other time limits. Failure to comply may well entitle the court to strike out your case with serious cost consequences.
19.2. Expenses and fees paid by/to other parties
The basic principle in civil litigation as set out in the CPR is that the successful party is usually entitled to recover the bulk (not by any means 100%) of their costs from their unsuccessful opponent. These costs are subject to assessment by the court under the Cost assessment Rules. If you are a successful litigant we will seek to recover the majority of the legal costs you have incurred.
The basic principle regarding recovery of costs is subject to a number of important considerations.
(a) You will always be responsible for paying our costs in full in accordance with the rates and terms upon which we have agreed with you from time to time to act for you regardless of the possibility of obtaining repayment from a losing party.
(b) The Cost Assessment Rules are complicated. For Fast Track cases, namely those with a value of between £5,000 and £25,000 (or £1,000-£25,000 in personal injury claims) only limited costs are recoverable, For Multi Track cases , namely any case valued in excess of £25,000, costs are normally recoverable and assessed on what is known as the Standard Basis. The court will also consider issues of proportionality. This will deal for example with the value of the claim compared with the costs you have incurred. If the court considers those costs are disproportionate, they will not be allowed in full. The court will also consider the level of disbursements such as counsel’s fees and experts fees incurred by you as compared with those incurred by your opponent. It is likely therefore that you will not be able to recover all your costs from your opponent.
(c) In addition, it may be necessary to take separate legal action to enforce the payment of a Costs Order against a losing party and you will be responsible for paying our fees and expenses in connection with such enforcement action and the cost assessment process generally.
(d) More detailed information about recovery of costs in contentious matters may be obtained from us at any time.
19.3. Payment of your Opponent/s Fees/Expenses
The court may order you to pay your opponent’s legal fees and expenses if, for example, you lose your case or any interim application. Therefore you should always consider very seriously the risk of costs in pursuing any claim not only your own costs but the risk of having to pay the costs of your opponent.
19.4. Interest on costs
If any order for costs is made in your favour it may be possible to recover interest on those costs from your opponent from the date on which the order for costs was made. We will account to you for such interest to the extent you have paid our fees or expenses on account but we will be entitled to retain the balance of that interest.
19.4. Alternative Funding Options
Set out below are details of alternative funding arrangements which may be available to you depending on the nature of your case. Please discuss these with us at the outset if any of them could be available to you.
First you may be eligible for public funding (formerly known as Legal Aid). This firm does not undertake publicly funded work. Public funding is only available for persons on low incomes and/or value of assets. It is available for limited areas of matter. If you consider you may be eligible, then our advice is to contact the Law Society or search the web for a firm of solicitors who can assist you. Our associated firm of McMillan Williams has franchises for certain areas of law from the Legal Services Commission and we suggest that you contact Nicola Manning of that firm for assistance.
Secondly, very often, your buildings or motor vehicle insurance policy will cover you for legal expenses. Some credit card issuers have a similar facility. You are recommended to check all insurance policies and credit card contracts to ascertain whether there could be scope for claiming your legal expenses under one of them. Please let us know if that be the case.
Thirdly, there could be funding available from third parties such as a trade union, family members or an employer.
Fourthly, Conditional Fee Agreements. We do not undertake this type of funding arrangement but our associated practice of McMillan Williams can do so in certain circumstances. The partners of this firm are non-remunerated external consultants to McMillan Williams save for client work we undertake for them and there are no commission arrangements in place.
19.5. Legal Expense Insurance
19.5.1. “Before the Event Policies”
There are legal expenses policies which can be taken out , usually with an annual premium to provide cover for a future legal problem. As indicated above, you may already have cover for example as an “add on” to a home contents, car insurance policy or through your credit card. We should warn you that they are frequently very limited in what they cover and may include restrictions on your freedom of choice of lawyer. Please check all policies and credit card terms and conditions to see if you are eligible to claim assistance with legal fees and let us see a copy of the policy or applicable terms.
19.5.2. “After the Event Policies”
These are policies which help to cover the costs of litigation once the dispute has arisen. If the premium is affordable then it can provide some peace of mind against the possibility of the totals litigation costs if you lose your case. Such policies will not generally cover payment of damages payable to your opponent but only the costs. Insurance cover can be purchased to protect against (a) your opponent’s legal costs and charges; (b) your own disbursements/expenses such as fees payable to the court, counsel and experts and (c) you own legal costs. The usual basis is that payment is made only if you fail completely with your case and of course, that risk is taken into consideration by the insurer before agreeing cover. The problem with all insurance is paying the premium. Points for you to consider are as follows.
The money has to be found to pay the premium; Sometimes we may be able to help you to arrange this. Some policies provide for the premium to be stepped or deferred. The court may order in contentious matters that your opponent repay you the premium or a proportion of it, if you win. (The fact of ATE has to be disclosed to your opponent at the outset). You should not however rely on the court making such an order. in other words, the premium may not be recoverable. Premiums for road traffic accident cases can be relatively modest. For other types of litigation they may be about 20% of the total legal charges against which you wish to protect yourself. In substantial commercial litigation, the premiums may be considerably higher than 20% and based on a proportion of both sides costs together with all the disbursements such as court and experts fees. We have provided the above information as information rather than specific advice. We are not insurance experts and cannot be deemed to be aware of all the possible insurance policies available to the public. Wee do not undertake any responsibility to give you “best advice” on these products. You should rely on your broker and not us . We cannot guarantee that the means of funding suggested to you by us will either be suitable for the purpose or the most appropriate to your needs.
20. Email
We routinely use email to communicate with you and others involved in your transaction but even though we employ all usual firewall and anti-spam devices, email is not secure. If you would prefer us not to communicate with you or others by email then you must advise us at the outset. We shall assume otherwise that you consent to our use of it. We cannot accept liability for loss of confidential information over the internet if our systems are hacked into or otherwise illegally interfered with. A copy of our email policy is available on request. Please note that we do no accept service of legal process by email.
21. Costs risks in litigation
Although we have covered this in Paragraph 19 above we feel it necessary to repeat this as a separate head. There are inherent risks when undertaking litigation. If you lose, not only will you be liable for our costs and expenses, but you will also be liable for the costs and expenses of the successful party. The merits of continuing to proceed will be kept under constant review and if it becomes commercially unviable to continue you will be advised accordingly. Litigation is a remedy of last resort in many cases. The Courts fully expect parties to a dispute to have tried all possible means to resolve their differences before embarking on legal proceedings. This can be done through solicitors or mediation services or any other organisations that offer Alternative Dispute Resolution. If litigation embarked upon is later abandoned by you, then again you will be liable not only for your own costs and expenses but also for the other side’s costs to the date of abandonment and quite possibly damages as well.
22. Property Purchases and Surveys
It is very important that you have any property you are about to purchase, properly and independently surveyed by a qualified surveyor. This will highlight any structural defects and if you buy in reliance of your own survey report and it turns out to be wrong, you could have a cause of action in negligence against your surveyor who has by law to carry professional indemnity insurance. You should not rely on any survey undertaken by your mortgagees because all they are ascertaining is the value of the property (defects and all) against the amount of the loan and the survey is primarily undertaken for them and not you. It is particularly important that you engage surveyors for any new build or off plan purchase. They should be asked to monitor the development as it progresses. Although engaging surveyors can sometimes be expensive it is well worth doing so. We cannot be held liable should you choose to ignore this advice and proceed to purchase property without the benefit of your own surveyor’s report and, in the case of a new build, satisfactory signing off of the development as a whole after practical completion. The maxim of Caveat Emptor (Buyer Beware) applies to all property purchases and you are on notice accordingly.
23. The Consumer Protection (Distance Selling) Regulations 2000
These will only apply if your matter does not relate to or arise from your business activities. If applicable, they require us to tell you that if your instructions have not been given to us at a face to face meeting, but by for example, fax, email or telephone, you have a right to cancel those instructions without any cost to you within seven working days of written instructions being received by us. You can cancel the agreement by written notice to our office or by sending notice of cancellation by post, fax or email. You may not, however, cancel the agreement without charge once we have, with your permission, express or implied, started to do the work on your behalf. By agreeing to these terms of business you are agreeing that to avoid delay in dealing with your matter we my start work straightaway and that we do not have to wait for the cancellation period to expire. On property transactions it is our custom to put in hand searches immediately we have received instructions. The Distance Selling Regulations require us to tell you that we cannot guarantee to complete your work within thirty days and by accepting these terms of business you acknowledge that fact.
24. Expenses and Outlays
We frequently have to carry out searches and other outlays on your behalf and we ask and you will agree that you put us in funds for a minimum of £750 on account to cover our initial outlays to be held to your account. We set out below a table of our charges for undertaking preliminary searches and for other overheads such as amongst other matters the cost of our time spent in undertaking this work. These charges will be payable by you in addition to our professional fees. Some will contain a small profit element. Where we have acted for you or act for you in a number of different transactions over a period of time if we find that we have surplus funds on our ledgers for one matter we will use those funds first in discharging our untilled outlays paid or incurred by us on your behalf on other transactions. Such intra ledger transfers will be shown on statements of account delivered to you from time to time. You are entitled to request a full statement of account from us at any time. We will provide you with a statement of account for each transaction at or before or as soon as practicable after completion of it and if there have been a number of similar other transactions we will endeavour to provide a full statement of account on a composite basis at a convenient stage or on your request particularly where there have been intra ledger transfer of both funds and outlays incurred. We are frequently asked by clients to use monies given to us for one transaction to use them for another transaction altogether and these funds will be shown as an intra ledger transfer on such composite statements of account.
25. Overriding Interests attaching to property
Under the Land Registration Act 2002, you must disclose to the Land Registry certain unregistered rights or interests that affect the property (“Unregistered Rights”) of which you are aware. These must be listed in the application form that is submitted by your conveyancer to the Land Registry. The Land Registry may note these Unregistered Rights against your Title.
Please tell us of any of the following Unregistered Rights of which you are aware, other than any that we have already told you about from the information that we have about the property. You also need to tell us about any Unregistered Rights of which you become aware between now and the date when the application to the Land Registry is made.
Failure to disclose any Unregistered Rights of which you are aware could lead to a claim against you by any person who is adversely affected as a result.
The Unregistered Rights that need to be disclosed are:
- Leases affecting the property
- Rights claimed by any people in actual occupation of the property
- Rights of way across the property (other than public rights of way)
- Pipes, wire or cables crossing the property, whether on the surface, below it or at high level
- Rights of light
- Rights of support from adjoining properties
- Other people’s right to take things from the land (such as timber, hay or fish)
- Customary rights (rights deriving from local traditions)
- Other people’s rights to mines and minerals under the land
- Franchises (such as the right to hold a fair
- Manorial rights
- A right to rent which was reserved to the Crown on the granting of a freehold estate
- Any rights relating to embankments or sea or river walls
- Any rights to payments in lieu of tithe (usually called corn rents)
- Chancel repair liability
26. Rent Review provisions in leases and overage provisions in contracts where there is a development potential
We cannot be expected to test rent review provisions drafted by third parties in any lease you are taking on particularly such provisions which are designed according to a mathematical formula and/or linked to a published index or table. Some rent review provisions are extremely complex and we are neither accountants nor surveyors. The best person to undertake such a test and to explain to you how such a rent review works (or would work in practice) is a surveyor who undertakes rent review work on a regular basis or an actuary. We are able to put you in touch with a suitable actuary or surveyor for the purpose or the RICS will have a panel of surveyors known to them whom they can recommend. This limitation on what we are able to undertake for you is especially the case where we are heavily engaged on negotiating other aspects of a lease for you or are under time pressure to have the transaction concluded. You are therefore recommended to seek outside competent professional assistance on rent review provisions. This may be an unwelcome initial additional cost to you but will be considerably cheaper than finding yourself after a rent review paying a much higher rent than anticipated or seeking rectification of the clause itself. It should be regarded as an insurance policy.
On some contracts for the purchase of commercial property where there is existing or development potential, the seller usually endeavours to provide for a share in the profit thereby obtained by you as buyer. This is known as "overage" and is usually expressed as an increase in the purchase price payable by you at some time in the future either when the property is sold with the benefit of a valuable planning consent or after it has been developed according to such valuable planning consent. Overage provisions in a sale contract can be complex and again can be expressed by use of mathemathical and formulaic principles. We would strongly advise that you do not rely solely on us to work out such formulae to test their application in any given circumstances but to call in actuaries or other professionals before exchange of contracts to calculate in mathematical and financial terms what such formulae could mean for you and their effect. We are able to put you in touch with actuaries for the purpose. If you do not call in competent advisers and we are later held to have "got it wrong" our liability to you will be reduced by all contributory factors accordingly including your failure to obtain relevant external advice from other professionals.
27. Finally
This is an important document and should be kept carefully by you. Unless you indicate to us within a reasonable time prior to our commencing to act for you, or within a reasonable time after receipt of this document, that you do not accept all or any of our terms of engagement, we shall be entitled to assume that you have accepted them all as governing our contract with you even if you fail for any reason to return to us a signed copy of them. However, we would much prefer you please, to print out a copy if you have accessed it from our web site and sign, date and return a copy of this document to us as soon as practicable, or, email us indicating that you have read this document, understand its terms and accept them. That way, each of us knows where we are.
Your continuing instructions in this matter or any other will amount to an acceptance by you of these terms and conditions .
PRESTON-ROUSE COMPANY
I/we accept the above terms and conditions.
Signed:
Name:
Date:
I am authorised to sign this document on behalf of the addressee.
SCHEDULE OF CHARGES ON PROPERTY AND OTHER TRANSACTIONS |
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| Item | Table A Our profit costs/professional fees charged to you |
Table B Outlays (sums we pay to 3rd parties on your behalf or cost of our time spent) |
Table C Total charges to you |
| The matter generally, if it proceeds to completion | As agreed but subject to upward review in the event of unexpected difficulties requiring more time to be spent than anticipated plus vat at standard rate. | Gross cost to us of disbursements paid or incurred on your behalf plus vat at standard rate. | A+B |
| The matter generally, if it does not complete | A minimum charge of £750 or such higher sum calculated at a fair rate for time spent plus vat at standard rate. | Gross cost to us plus vat at standard rate. | A+B |
| Outgoing electronic transfer of bank funds (per transfer). | £35 plus vat at standard rate for UK transfers and £50 plus vat at standard rate for transfers made to non-UK banks. | £20 (UK) £40 (outside UK), or actual cost to us if greater. | A |
| Returned or uncleared cheques (per cheque) | £10 plus vat at standard rate. | £4, or actual cost to us if greater. | A |
| Copying or binding outsourced by us | Gross cost plus vat at standard rate. | Net cost to us plus vat at standard rate. | A |
| Copying / binding done by us | £25, subject to increase if volume abnormal at a fair rate plus vat at standard rate. | Cost of time and materials if abnormal plus vat at standard rate. | A or B |
| Couriers | Gross cost plus vat at standard rate. | Actual cost to us plus vat at standard rate. | A |
| Searches | Agency searches will be charged at gross cost to us plus vat at standard rate. A surcharge of £1 is added to the cost of each search made at Companies House. Land Registry searches made on line will attract a surcharge of 36p per £1 cost of search. Status enquiry searches will be charged at £10 plus vat at standard rate. | Net cost to us plus vat at standard rate. | A |
| UK phone calls + postage | Standard nil, but £25 if volume abnormal plus vat at standard rate. | Net cost to us plus vat at standard rate. | A |
| International telephone calls | Actual cost to us plus vat at standard rate. | Actual cost to us. | A |
| Court fees and other fees payable to governmental agencies such as but not limited to Companies House filing fees, Stamp Duty Land Tax; Land Registry and Companies House registration fees | Cost to us. | Actual cost to us. |
A (vat exempt) |
| Counsel and /or other professional fees incurred on your behalf | Cost to us plus vat at standard rate. | Actual cost to us plus vat at standard rate. | A |
| Miscellaneous (e.g. managing agents' information packs) | Cost to us plus vat at standard rate. | Actual cost to us plus vat at standard rate. | A |
| Indemnity insurance contribution | 0.01% of the total gross consideration for the transaction plus vat at standard rate. | A fair proportion of actual cost to us of annual PI premium paid. | A |
PRESTON-ROUSE |