This document does not include our fees, which are relatively modest, and increasingly so for larger estates in which we have special expertise. But we handle all sizes of estates and provide great value. Please do give us a call on 01323 406299 or use the enquiry form to the right out of hours.
General Terms & Conditions of Business July 2017 Edition
These Terms & Conditions of Business apply to all legal work undertaken by us for you. Your
continuing instructions to us will constitute your acceptance of them. Your letter of engagement may modify these terms
1. WHO WE ARE
The Probate Department Ltd Solicitors is regulated by the Solicitors Regulation Authority and also
trades as Eastbourne Law Solicitors. Will Custodian Ltd and Funeral Plan Adviser Ltd are owned by the same individuals (Ingrid McCleave and Stephen Pett) but are not regulated by the Solicitors Regulation Authority. Will Custodian Ltd or Funeral Plan Adviser Ltd do NOT provide legal advice.
2. OUR AIM
To provide our clients with a service that is second to none. We are also committed to getting the job done as quickly and efficiently as possible and in a friendly, helpful and approachable manner.
3. OUR COMMITMENT TO ONE ANOTHER We will:-
· Share your objectives and act in your best interests;
· Always be honest and straightforward with you and keep your business as confidential as
we can within the law;
· Explain to you the legal work which may be required, the time scales and, where
appropriate, the prospects of a successful outcome;
· Give you our best indication of the cost of your matter, or at least of the next stage, both at
the outset and as it progresses;
· Deal with your matter promptly and keep you regularly informed of progress;
· Regularly review your matter with you as appropriate and, whenever there is a significant change in circumstances, the objectives, the risks, the likely cost & benefits or the time scale;
· Try to avoid using technical legal language when writing to you or discussing your matter;
· Reply to your telephone calls, emails and letters promptly.
In return you must please:-
· Provide us with clear, timely and accurate instructions;
· Promptly provide us with everything we request of you in a timely manner;
· Comply with these Terms & Conditions.
4. OUR PEOPLE
To provide our clients with access to the widest range of specialist legal services at cost-effective
rates, our firm comprises a number of tiers of people who will advise or represent you. The terms we use to describe those people are:
Directors: our Legal Services Director is a Solicitor, our Financial Director is an Accountant and a
former Regional Chairman of the Society of Will Writers, our Client Services Director is a Regional Chairman of the Society of Will Writers and formerly an Independent Financial Adviser.
Lawyers: legally qualified members of staff who may be Consultants, Associate Solicitors,
Licensed Conveyancers or Chartered Legal Executives.
Case Managers: specialist members of staff providing services to our clients under the supervision of a lawyer. They may be qualified or studying for a legal qualification.
5. PEOPLE RESPONSIBLE FOR YOUR WORK
We will advise you of the person who will be primarily responsible for the day-to-day conduct of
your matter, and the lawyer responsible for its overall supervision. Their names and job titles are set out in our Engagement Letter but please note that we may call on other people in the firm to assist them as required. We try to avoid changes but sometimes, particularly during holiday periods, this is unavoidable. We will tell you promptly of any change and the reason for it.
6. HOURS OF BUSINESS
Our office hours 9.00am to 5.00pm on weekdays or by appointment.
Unless you clearly tell us not to do so we will communicate with you and others, as appropriate, by email, or private courier. We cannot be responsible for the security of these methods.
8. TAX ADVICE & VALUATIONS – please advise us if you think there may be tax issues.
We have specialist staff for detailed advice at an additional cost. Our Case Managers are trained to deal with normal matters relating to probate but not sophisticated tax planning. You must advise us of any known tax strategies implemented in the past which may affect this matter or if advice is needed for future planning. Examples are trusts, lifetime gifts over £250, specialist investments.
We are legal advisers and not valuers and, unless you tell us otherwise, we will assume that you have satisfied yourself that any valuation agreed by you is reasonable and appropriate.
9. FINANCIAL SERVICES – we are NOT Financial Advisers
Whilst we may explain the implications of some types of investments, we are NOT qualified as
financial advisers. If you need advice on investments or insurances we can introduce you to
financial advisers or planners but in doing so we are not recommending that their service is
suitable for your needs and we do not accept any liability for such an introduction.
10. FEES For some matters we will have given you a specific quotation for our fees in advance
and in such cases please note that:-
· Sometimes the complexity or unexpected circumstances of a matter make it necessary to
make an additional charge to the one we have quoted. Should that become necessary we
will discuss it and agree any additional fee with you;
· If the matter or transaction is not completed within a reasonable period (due to failure to act
by you e.g. to sign documents or to return them to us) the full fee will be payable in any
event unless we have agreed otherwise in writing. In all cases you will be responsible for
payments we have made to others on your behalf.
Where we have not given you a specific quotation in advance our fees will be based on the time
we spend working on your matter. We will estimate at the outset of your matter the amount we
believe our fees will be, based on our experience of similar matters, but please note that this
estimate is not a fixed quotation, is based on the information available to us at the time and may apply only to a limited period of time or sequence of steps, and is likely to change as the matter proceeds in which case we will notify you. Details of fees are in our Engagement Letter.
We reserve the right to increase our charging rates annually on 1st April each year and we will notify you in advance if we intend to make any change that will affect you.
If your matter is urgent and needs to be dealt with immediately there is a 25% surcharge on our normal fees. This will be agreed with you in advance.
11. DISBURSEMENTS – Money we may pay out on your behalf (third party costs).
We often have to pay other people or organisations on behalf of our clients for “disbursements”
such as court fees, search fees, stamp duty, land registry fees, barristers’ fees, experts’ fees and
so on. We have no obligation to make such payments unless you have provided us with the funds to do so but the person instructing has a clear liability to pay or repay those disbursements should there be insufficient funds on account.
In matters of short duration (e.g. Will drafting and Powers of Attorney where a fixed fee is payable) we ask for payment of our fees in full before work commences unless otherwise agreed within the Engagement Letter. For longer running matters (e.g. Probate) we may invoice monthly where the case is on a time basis. For fixed fee cases, we will take our fees as soon as the funds are available. Fees must be paid in full before documents are released unless we are collecting the assets.
Under the Solicitors’ Code of Conduct you are entitled to complain to us initially about our invoice and you may also have a right to object to our invoice by making a complaint to the Legal Ombudsman and/or by applying to the court for assessment under Part III of the Solicitors Act 1974.
13. PAYMENT TERMS
Where there is a fixed fee we require payment in advance unless otherwise agreed within your letter of engagement e.g. probate where we will normally deduct our fees and disbursements as soon as we hold client funds. Otherwise, all interim and final invoices must be paid within 14 days. Time is of the essence and, if our payment terms are not met, (a) interest will be charged on a daily basis at 1% per month or part (b) we may suspend all further work or terminate our instructions altogether. We are entitled to require you to make a payment to us on account of our fees at any time at our absolute discretion as a condition of continuing to work on your matter and, in contentious cases involving courts, tribunals, mediation or arbitration we will require you to pay our fees and disbursements for preparing for and attending any of these in advance and in full. Payment may be made by any major card subject to a surcharge of 2.5% for higher charging credit cards. Debit card: no extra charge.
14. RECOVERY OF LEGAL COSTS FROM OR BY ANOTHER PARTY TO A COURT CASE
You may be entitled to reimbursement of your legal costs from another person. If so, it is important that you understand that the other person may not be required to pay all of the fees and disbursements which you incur with us. You have to pay our fees and disbursements in the first place and any amounts which can be recovered will be by way of full or partial reimbursement of them. You will also be obliged to pay our fees and disbursements for seeking to recover any legal costs that the court orders another party to pay to you. The other person will not be liable to pay the VAT element of your legal costs if you are able to recover the VAT yourself.
Be warned that:-
· If the other party to a litigation case is in receipt of public funding, he/she will not be ordered to pay your legal costs no matter what the outcome of the case; and
· The approach of the Courts and other Tribunals in cases involving employment law, divorce and many other types of family litigation is increasingly that, unless one party has been particularly unreasonable, each party should bear their own legal costs;
In other court cases, if you are unsuccessful, you will usually be ordered to pay the other party’s
legal costs in addition to paying our own fees and disbursements. You may be able to insure against liability for the other side’s legal costs. Please discuss this with us if this is of interest to you.
It is not our policy to pay interest on money we hold in our client account, as the cost would normally outweigh the benefit. In times when interest rates are significant we will, at your request, try to identify a suitable higher rate account to transfer the money to. This policy will remain under review, and it is our intention to review it to the best advantage of clients. Any tax issues will be your responsibility unless you ask our Tax Adviser to deal with them in writing.
16. CANCELLATION OF INSTRUCTIONS BY YOU
You may terminate your instructions to us in writing at any time but we will be entitled to charge our fixed fee or for time based matters for time spent by our staff and to keep all your papers and documents while there is money owing to us. If at any stage you wish us to stop work and/or incurring fees and disbursements on your behalf, you must tell us this clearly and in writing.
17. CANCELLATION OF INSTRUCTIONS BY US
We will terminate our retainer only if there is a good reason to do so, such as:-
· A breakdown in trust and confidence between us;
· Failure on your part to provide us with clear or proper instructions;
· The direction of any physical or verbal abuse towards a member of our staff;
· Your non-payment of a bill or non-compliance with a request for a payment on account; or
· If, by continuing, we would be in breach of the Solicitors’ Code of Conduct (e.g. conflict of interest).
If we do stop acting for you we will inform you in writing.
If, for whatever reason, our retainer is terminated when court proceedings are ongoing we must remove ourselves from the court record. We therefore require all litigation clients to sign a “Notice of Acting in Person” which, if the circumstances require, we will send to the court and the other parties to avoid incurring the costs of making a formal application. If practicable, however, we will inform you in advance of our intention to take this course.
In addition to the above, if you are a consumer as opposed to a business AND our first substantive meeting with you took place somewhere other than at our offices you have a statutory right to cancel our contract. If this right applies in your case details and a cancellation notice will be attached to the letter of engagement. Where the right applies and you request us to start work before the cancellation period expires, by doing so you will be informing us that:-
· You wish us to commence working on your behalf immediately; and
· Even if you choose to cancel our contract within the cancellation period you agree to pay
for the work done by us up to the point of cancellation as set out in the letter of engagement.
18. STORAGE OF FILES AND DOCUMENTS
Following completion of your matter, we will (except in the case of an abortive transaction when
we will destroy the papers immediately) keep your file scanned for as long as we consider reasonable, after which the file will be confidentially deleted. If you wish for safe custody we will refer you to Will Custodian Ltd Peace of Mind Service which is under the same ownership as The Probate Department Ltd Solicitors but not regulated by the Solicitors Regulatory Authority. See www.WillCustodian.co.uk for their terms of business.
In addition to any legal right we may have to do so, you hereby agree that we are entitled to retain possession of all your papers and documents if there is money owing to us.
19. PROBLEMS AND CONCERNS WITH OUR SERVICE –
If there is any aspect of our service or charges with which you are unhappy:-
· Please raise your concern in the first place with the Case Manager;
· If you still have queries or concerns, please contact the lawyer responsible for overall
supervision of the case;
· In the unlikely event, however, that he/she is unable to resolve the matter to your
satisfaction a formal complaint should be addressed to “The Client Services Director” market PRIVATE and CONFIDENTIAL who will send you a copy of our complaints procedure (which is otherwise available on request) and conduct a full investigation on your behalf;
· If you are dissatisfied with the outcome, you may refer it to the Legal Ombudsman (www.legalombudsman.org.uk) PO Box 6806,Wolverhampton WV1 9WJ within 6 months.
It is our duty to keep your business confidential. There are, however, a number of important
exceptions and by accepting these terms and conditions of business you are authorising us to:-
· Give to any barrister or expert witness we may instruct on your behalf all relevant facts
concerning both you and your case but they are, of course, required to preserve the
confidentiality of all such information;
· Make our file of papers on your matter available for audit or quality inspection by The
Solicitors Regulation Authority, The Law Society, the Legal Aid Agency and other external
organisations and firms who may conduct audit or quality inspections on our practice and
our client services, and who are required to maintain confidentiality in relation to your files;
· Inform the National Crime Agency if we know or suspect that a transaction may involve a
crime, money laundering or terrorist financing.
· Email can be used between our firm and its Clients and others but we cannot guarantee its
confidentiality. If you use e-mail to contact us or if you inform us of your e-mail address we
will assume that you accept this risk unless you expressly tell us not to communicate by email.
21. LIABILITY FOR NEGLIGENCE
Unless we have otherwise agreed with you in writing and save for any liability for death or
personal injury, our liability to you for negligence or for breach of your instructions shall be
limited to £3 million and we will not be liable for any consequential, special, indirect or
exemplary damages, costs or losses or for any damages, costs or losses attributable to
lost profits or opportunities.
Reasonableness: we believe that the limitations on our liability as set out in these standard terms of engagement are reasonable, having regard to the availability and cost of professional indemnity insurance and potential changes in its availability and costs.
Standard of Service: we will perform our obligations to you with reasonable skill and care.
Our Principals, Directors, members, staff, employees, agents, consultants and contractors: you acknowledge and agree that any liability for any loss, damage, costs and/or expenses suffered or incurred by you arising from, relating to or resulting from the provision of our Services will be the liability of this firm only and not of their respective Principals, Directors, members, employees, consultants, agents or contractors. You undertake that you will in no circumstances bring any action in respect of any such loss, damage, costs and or expenses, whether arising in contract, negligence or otherwise against any of our principal (in their personal capacity), Directors, members, consultants, employees, agents or contractors. This clause is intended to benefit such principal, Directors, members, consultants, employees, agents, consultants and contractors who may enforce this clause pursuant to the Contracts (Rights of Third Parties) Act 1999 (the Contracts Act). Other than as expressly provided for in this clause, the provision of the Contracts Act is excluded.
Liability Limit: subject to the section dealing with “areas of unlimited liability below”, the liability of this firm, whether arising in contract, negligence or otherwise, for any losses, damages, costs and expenses arising to you in respect of any of our service shall in no circumstances exceed in aggregate the amount of £3 million. All other liability is expressly excluded. In particular, but without limitation, liability for increased costs or expenses, loss or profits, indirect or consequential loss including, without limitation, economic loss or failure to realise anticipated savings or benefits is excluded.
Areas of unlimited liability: nothing in these terms shall limit or exclude this firm’s liability for death or personal injury resulting from its principals, directors, members or employee’s negligence or for fraud or fraudulent misrepresentation or to the extent this firm is precluded or restricted from excluding liability by any applicable law and or rules of professional conduct. Our professional indemnity insurers are Endurance Worldwide Insurance Ltd and our insurance cover is worldwide.
22. DATA PROTECTION ACT
We may use your personal information for the purposes of administration, statutory returns, legal and regulatory compliance, management of our practice, advertising, marketing, keeping accounts and for the provision of legal services. We may communicate with you through any means of communication for which you have given us contact details. We may be obliged by government or regulatory compliance rules to carry out searches of electronic databases to verify your identity and address and, when we are obliged to do so, we will require you to reimburse the search fee charged to us. Your personal information will not be shared with another organisation without your consent. By accepting these terms and conditions you consent to us processing your data (including any sensitive personal data as defined in the Data Protection Act 1998) for the above purposes. You are entitled to request of us a copy of your information, for which we charge a fee of £10, and the correction of any inaccuracies in your data.
By instructing us your consent to us retaining your data for as long as we consider reasonable. We do not ourselves store documents – see above.
If you do not wish to receive marketing and other legal information from us please advise your case manager.
23. MONEY LAUNDERING To comply with regulations, we will:-
· Require evidence of your identity and address and, in the case of a company, of its officers;
· Need confirmation and evidence of the sources of funds you may provide or arrange
for your transaction;
· Not accept any money into our bank account without having first established the legitimacy
of its source;
· Not accept any payments in cash except for payment of our professional fees and VAT;
· Not accept instructions to pay to a third party any money due to you.
We may be obliged to carry out electronic searches to verify your identity and if this is necessary we will charge for the time in carrying out the search and the cost of the search itself.
In circumstances, where you were introduced to us via a professional third party, we may have an agreement with that third party to pay them a percentage of the net fee (currently 20%). This is NOT a cost to you. It is an office expense and therefore reduces our net profit. Certain specifically authorised and experienced referrers may (only) gather the information that we require thus saving us time and in these circumstances, we may pay them 5/12ths of our net fee. You will be notified in your letter of engagement if your introducer is authorised.
25. EQUALITY & DIVERSITY
We are committed to promoting equality and diversity in all of our dealings with clients, employees,
suppliers and third parties and will, upon request, supply a copy of our policy.
26. PERSONAL GUARANTEE
By signing the letter of engagement or asking us to proceed you agree to these terms and conditions on behalf of another person or entity such as a Limited Company or a Partnership, or in your capacity as a Trustee, Attorney or Executor, by doing so you personally guarantee the prompt payment of all monies due to us by our client from time to time. Such guarantee will not be invalidated by any time or other indulgence we may give to, nor by any compromise we may agree with, our client.
27. APPLICATION OF TERMS AND CONDITIONS OF BUSINESS
27. APPLICATION OF TERMS AND CONDITIONS OF BUSINESS
Unless otherwise agreed in writing and subject to the application of our then current charging rates, these Terms and Conditions of Business as updated from time to time shall exclusively apply to these and any future instructions given by you to this firm. Your continuing instructions in this matter will amount to an acceptance of these Terms and Conditions of Business.