1 Introduction
These are our standard terms of business and apply to all the work we carry out for our clients. Our engagement letter will contain additional information and terms of business and if there is any conflict between these terms of business and those contained in the engagement letter, the latter will apply. Further information is available from our website at www.bevanbrittan.com
2 Work to be undertaken by Bevan Brittan
2.1 We will agree the work which we will carry out and we will confirm this in writing.
2.2 We will also agree any work which is specifically excluded or which is to be undertaken by others.
2.3 We ask that you give us have clear and full instructions, all relevant documents and details of any time limits, other constraints or commercial considerations at the outset, so that we have a clear understanding of your objectives for each transaction or case. We will agree these with you and explain the key issues. In litigation cases we will recommend a strategy for achieving your objectives.
3 Limitations on our liability to you
3.1 Our liability to you for breach of our retainer shall be limited to £3,000,000 (three million pounds) inclusive of costs and interest or such other higher amount (if any) as is expressly set out in our engagement letter.
3.2 We will not be liable for any consequential, special, indirect or exemplary damages, costs or losses or any damages, costs or losses attributable to lost profits or opportunities.
3.3 You also agree that you will not bring any claim arising out of this retainer against any individual member or employee of Bevan Brittan LLP.
3.4 All claims arising from the same act or omission or from a series of related acts or omissions shall be regarded as one claim.
3.5 These limitations apply only to the extent that they are permitted by law. In particular they do not apply to any liability for death or personal injury caused by negligence, nor for fraud or reckless disregard of professional obligations
3.6 We may be prepared to agree a higher limit of liability for certain transactions, in which case higher fee rates will apply. Please discuss any variations with your client relationship partner. Any agreement relating to our limit of liability must be confirmed in writing.
3.7 The term “partner” may refer to a member, employee or consultant of Bevan Brittan LLP.
3.8 Our liability for any loss or damage suffered by you as a result of a breach by us of our terms of engagement or of negligence in the course of providing our services shall be limited to a just and equitable proportion of the total loss or damage having regard to the extent of your responsibility and that of any other party known to you who may also be liable to you in respect of it (and regardless of the ability of such person to make payments).
4 Tax advice
4.1 We do not provide specialist legal tax advice on the transactions and matters you instruct us on. We are happy to refer you to a suitable firm to provide this advice to you.
4.2 If you prefer to rely upon your own advisers for tax advice for specific transactions, we will assume that you will obtain any relevant tax advice from those advisers and that copies of their advice will be made available to us to assist in the overall commercial advice that we give.
5 Bevan Brittan personnel
5.1 We operate a Client Relationship Partner System. Each client has a partner with overall responsibility for the quality of service to the client. We will agree your client relationship partner with you.
5.2 For each transaction, you will be given details of the lawyer with day-to-day responsibility for the work and the supervising partner, and their secretaries.
5.3 Our aim is to allocate tasks between lawyers in a manner to ensure efficient and cost effective achievement of our client’s agreed objectives. We are committed to minimising the number of people working on a matter, subject always to staffing consistent with delivering the right service. Our lawyers are added to a job only to increase efficiency (for example to enable a particularly tight timetable to be met), add expertise or reduce cost.
5.4 If it becomes appropriate to involve other senior associates or assistants you will be advised and where possible this will be discussed with you. Sometimes we may need to involve other lawyers, for example to carry out court work at short notice, or due to illness, and we may involve junior lawyers and other staff in specific tasks subject to supervision. We would not expect pre-agreement with you in those circumstances.
6 Our charges
6.1 Our standard arrangement is to charge based on the time we have spent and to bill you monthly for this, together with disbursements which we incur on your behalf.
6.2 We will agree our hourly charging rates with you at the outset. They are subject to annual review on 1 May. We will advise you of any changes.
6.3 Our rates may vary for different specialisations and types of work. If we agree a rate for a particular type of work and you later instruct us for different type, we will agree the new rates with you.
6.4 We also charge for disbursements (including Counsel, experts and cost draftsman’s fees if applicable), expenses and VAT where applicable. Expenses include document production and travel/accommodation/meals/refreshments etc. We do not charge for faxes and telephones.
6.5 We record time in six minute units and multiples of these. Time is charged for legal advice and research, correspondence, telephone calls, reviewing, preparing and drafting documents, attending meetings and court hearings (including travel time) and all other time incurred on each transaction, including the preparation of attendance notes and memoranda, supervision file reviews and collating and preparing documents and general file administration. Where significant periods of time are spent on a matter, the entire time period will be recorded and charged without deduction for minor interruptions.
6.6 Certain activities, such as some research items, have standard time charges allocated to them or we may charge an amount of time which we consider reasonable for the work involved and the value added. This may vary from the actual time spent.
6.7 We may agree a fixed fee for particular transactions. If so it will be based on the following assumptions, in addition to any specific assumptions set out in the matter engagement letter:
6.7.1 Disbursements and VAT are payable in addition
6.7.2 There will be no substantial renegotiation of terms once we have commenced our work
6.7.3 The transaction will be concluded reasonably smoothly
6.7.4 Completion takes place by an agreed date
6.8 Each of our invoices will be a self-contained bill being a final charge for work done and so far as possible disbursements and expenses incurred during the period covered by the bill. On its delivery the various provisions of the Solicitors Act 1974 affecting your rights and ours will apply.
7 Estimate of Our Costs
7.1 For each transaction we will provide an estimate of our fees. We will also provide an estimate for any likely significant disbursements e.g. Counsel’s fees and expert’s fees.
7.2 We make every effort to ensure our costs estimates are as accurate as possible, although particularly in litigation matters it can be difficult to predict the costs, especially at the outset. We may therefore provide an estimate within a range or for a stage of the work. If so we will provide revised estimates as the case progresses and/or for subsequent stages and at least every 6 months.
7.3 We will provide a revised estimate if the case changes significantly.
7.4 Our estimates are based on the information you provide to us. We may need to revise them if additional information comes to light.
7.5 If you want to set a limit to our costs and/or disbursements for a particular transaction or case, please let us know and we will not exceed the limit agreed without your prior approval.
7.6 For monthly billing matters we will usually confirm the overall costs incurred position against the current estimate on a monthly basis, when sending the monthly bill. If you have any special requirements for costs information please let us know and we will agree appropriate arrangements.
8 Payments and monies held on account
8.1 If it becomes necessary to incur significant disbursements (for example Counsel’s fees) we reserve the right to ask you to make a payment to us on account of those disbursements before we incur them. We will not incur such disbursements without first agreeing them with you.
8.2 We also reserve the right to request money on account of costs in advance of billing. If such a request is not met or our fees remain outstanding, we are entitled to cease acting and remove ourselves from the court record in any proceedings.
8.3 We will be entitled to transfer small balances under £15 received on your behalf in connection with one specific matter or transaction to any another transaction or matter on which we are at the time acting for you.
9 Payment
9.1 Payment is due within 15 days of the date of issue of our invoices. Where amounts invoiced remain unpaid when due, we reserve the right to charge interest on those amounts at either 3% above our current banker’s base rate or the current rate payable on judgment debts (whichever is the higher).
9.2 We are also entitled to settle your entire account from monies received or held on your behalf and to retain files, documents and other property held by us until payment is made.
9.3 Payment of invoices should be made in sterling either by cheque, drawn on a London bank, or direct to our bank account details of which are available on request. Please ask your bank to send the monies net of all charges.
10 Client service and complaints procedure
10.1 We are committed to providing a quality service to all our clients and are confident that you will be entirely satisfied with our work together, but we do have a complaints procedure. If you have any concerns, please speak to your client relationship partner or to the supervising partner or to the Head of Department. If they are unable to resolve the problem satisfactorily, please contact our Best Practice Partner, Sarah Mumford, or our Chief Executive, Stuart Whitfield.
10.2 We carry out regular client surveys to enable us to monitor and improve our service standards. We would be grateful if you agree to participate if you have the opportunity.
11 Communications
11.1 We will communicate with you and with others by letter, fax, telephone and email. Please let us know if any of these methods is insecure or inappropriate. As you will be aware email carries particular risks e.g. of non-delivery and security breaches.
11.2 We endeavour to protect the integrity of computer systems by screening for viruses and we expect you to do the same.
12 Confidentiality
12.1 All the work we carry out is on a confidential basis and will not be disclosed to others except where we are required by law to do so.
12.2 We will be entitled to refer to you as our client in publicity, marketing and other materials, but we will not disclose the nature of the work we carry out for you without your consent or unless it is otherwise in the public domain.
12.3 Modern communications and working methods such as mobile phones, laptops and home working carry additional risks of confidentiality and security breaches and we will work with you to reduce these as far as possible. If you have any specific requirements please tell us and we will agree appropriate arrangements.
12.4 We are subject to regulatory requirements which include auditing by our accountants. As part of their work they will normally need to have access to our files and therefore to confidential information. They are subject to confidentiality arrangements in their agreement with us.
12.5 You agree to waive your rights to claim privilege to enable us to disclose and rely on information and documents if a third party brings a claim against us and in relation to proceedings for a wasted costs order against us so that the court or tribunal has full information available to it.
12.6 The reports, information and advice we provide to you are given in confidence and are provided on condition that you undertake not to disclose these or any other confidential information provided by us to you during our work, to any third party without our prior written consent.
13 Quality audits
13.1 BB is working towards accreditation of its Quality Management System. This will involve regular audits of a small sample of client files by external auditors. The auditors are required to give an undertaking of confidentiality to the firm before proceeding with an audit.
13.2 By agreeing to these terms and conditions, you give your consent to our files relating to your business being made available to the auditors for this purpose. If you have any objection to our file relating to any matter of yours being audited for this purpose, please inform our Director of Risk in writing as soon as possible. Refusal of consent will not affect the conduct of the case or the quality of the work carried out by us.
13.3 You may withdraw your consent to audit at any time by giving us written notice, either generally or in relation to a specific matter, without having to give a reason.
14 Anti-Money Laundering Procedures
14.1 In common with many businesses we are subject to stringent money laundering legislation which requires us to obtain and keep documentary evidence of the identity of our clients and have an understanding of their financial position and business affairs. We are also required to investigate the management and control (including beneficial ownership) of corporate entities and trusts.
14.2 We may need to ask for additional information about the source of funds for a transaction and we may refuse to proceed if we are not reasonably satisfied about the source and legitimacy of funds.
14.3 We are also required to report certain suspicious transactions to the authorities and this overrides our duties of confidentiality to our clients. Where this occurs we cannot allow the transaction to proceed until we receive authorisation. We are also not permitted to tell you we have made a report. We do not accept any liability which may arise as a result of our complying with our obligations under these provisions.
15 Client Documents
15.1 If you provide us with documents or similar items, we will return them to you at the end of the transaction, subject to our fees having been paid. You can, of course, request their return at any time before then.
15.2 If you would like us to retain and store documents, such as title deeds, at the end of the transaction, we will be happy to do so subject to a fee which we will agree at the time.
15.3 Our working materials and all correspondence between us will remain our property.
15.4 We retain all copyright and other intellectual property rights in all reports, written advice and other materials provided by us to you.
16 Termination
16.1 We are entitled to terminate our retainer and cease carrying out work on all or any matters if any invoice is not paid when due or a payment on account is not made within the time requested, subject to our professional conduct rules.
16.2 We are also entitled to terminate our retainer in circumstances where this is permitted by our professional conduct rules e.g. if a conflict of interest arises or where we suspect a breach of money laundering provisions or other fraud has occurred.
16.3 You have the right to terminate our agreement at any time, but we ask you to give reasonable notice where possible.
16.4 If you terminate our agreement, we will prepare invoices for all outstanding work and submit them as soon as reasonably possible. We are entitled to retain all files documents, property and monies held by us on your behalf until those invoices have been prepared, issued and settled.
16.5 Our files and papers, including any papers belonging to you, will be retained for at least six years following completion of the work. Unless you ask for them to be returned to you, they will then be destroyed.
16.6 If an actual or potential conflict arises during the course of our work we may not be permitted to continue to act for you. If such a conflict arises we will discuss the position with you promptly and agree an appropriate course of action.
17 Litigation Costs and Funding
17.1 If you instruct us on litigation you need to be aware of the following points of principle, on which we will also provide more detailed advice at the time:
17.2 You should tell us about any legal expenses or other insurance that you may have which might cover either our costs or your potential liability for the other party’s costs. If you do not have cover you may wish to consider obtaining it. We are happy to discuss this and other methods of funding with you.
17.3 You will remain responsible for our costs whatever the outcome of the litigation. If you succeed and obtain an order that your costs are to be paid by another party, we shall of course endeavour to recover those costs. However, if for any reason, such as financial difficulties, your opponent does not pay those costs, your liability for our costs remains.
17.4 Even if successful you are usually only able to recover a proportion of our costs from your opponent. The court will decide this proportion through a procedure known as an “Assessment”. Our experience suggests that 60% to 70% of our costs is usually recovered.
17.5 If you are unsuccessful it is likely that the court will order you to pay your opponent’s costs in addition to our costs. Your opponent’s costs are also subject to Assessment and you will therefore have an opportunity to review and if appropriate, ask the court to reduce those costs.
17.6 If another party obtains Legal Aid at any stage it is unlikely that you will recover costs even if successful. If this happens we will discuss the implications with you.
17.7 There are specific rules for recovery of costs in employment cases (in the Employment Tribunal and Employment Appeals Tribunal) which differ from other litigation matters. We will explain if them if relevant to your matter.
18 Consumer Protection (Distance Selling) Regulations 2000
18.1 This section applies only if you are a private individual and your initial instructions were received by us other than in a face-to-face meeting – i.e. by letter, phone or email
18.2 Since your instructions to us have not been given at a face-to-face meeting you would generally have the right to cancel those instructions without any cost to you within 7 working days of you returning the enclosed copy of this letter to us. You would cancel the instructions by delivering or posting a letter, fax or email to us.
18.3 However, you may not cancel the instructions once, with your permission, we have started work on your behalf. By signing and returning the enclosed copy of this letter you are agreeing that to avoid delaying the transaction we may start work straight away and we do not have to wait for the seven working day cancellation period to expire.
18.4 We will not carry out any work until we have received the signed copy of our engagement letter.
18.5 By signing and returning a copy of our engagement letter, you are also agreeing that the thirty day period referred to in regulation 19, in which the contract is to be completed, is not applicable and the contract period will run until the transaction is fully completed in accordance with your instructions and, if relevant, those of any lender.
19 Data Protection Act 1998
19.1 In acting for you we and our successors may have access to personal data for which you are the data controller (as defined in the Data Protection Act 1998). In having access to and processing such data we will be acting as your data processor and will only use the personal data in connection with providing you with legal advice and services and related purposes including updating records, analysis to manage our practice and legal & regulatory compliance.
19.2 We have in place measures to prevent unauthorised and unlawful processing of personal data and to prevent accidental loss or destruction or damage to personal data.
19.3 We may use personal data which we hold about you or individuals within your business for the purpose of contacting you about other services we may offer and/or to deal with third parties as part of any restructuring, merger or transfer of all or any part of our business
20 Financial Services Authority
20.1 We are not authorised by the Financial Services Authority. However, we are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity, which is, broadly, the advising on, selling and administration of insurance contracts. This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Services Authority website at www.fsa.gov.uk/register
20.2 The Law Society is a designated professional body for the purposes of the Financial Services and Markets Act 2000. The Solicitors Regulation Authority is the independent regulatory body of the Law Society and the Legal Complaints Service is the independent complaints handling body of the Law Society. If we cannot resolve any concerns you have about insurance mediation activity, then you should contact the Solicitors Regulation Authority.
21 Freedom of Information Act
21.1 You agree that if you receive a request from a third party under the Freedom of Information Act 2000 to disclose information about us or our retainer with you, then you will advise us of the request, the identity of the third party and the information you are intending to disclose as soon as possible and in any event prior to disclosure.
21.2 We will then advise you promptly if we consider that the information you are intending to disclose is commercially sensitive, has been provided in confidence or that any other exemption to disclosure under the Act applies.
22 Draft Reports
22.1 No reliance will be placed by you on draft or interim reports and advice (oral or written) provided by us, since these may vary significantly from any final report or advice.
23 Third Parties
23.1 The advice we provide is for the benefit of the business or individual client to whom our engagement letter is addressed. No benefits under our contract are to be conferred by you to any third party without our written consent.
23.2 If you disclose any of our advice or reports to a third party, you will make it clear to the third party that we accept no responsibility to them.
23.3 If we do consent to copies of our advice being provided to a third party we will be entitled to charge an additional fee for providing such consent. The amount of the additional fee will be agreed direct with the third party who will be responsible for payment.
24 Law
24.1 Our relationship is governed by the law of England & Wales and if there is any dispute between us, the courts of England & Wales shall have exclusive jurisdiction.
25 Previous Agreement(s)
25.1 This agreement replaces all previous representations and agreements between us. Your continuing instructions will amount to acceptance of these terms.
Valid from: 6 August 2008
Bevan Brittan LLP