All work the Firm does for its Clients is governed by these terms and conditions and any agreed written variation.
In these terms and conditions:
the “Firm” means David Morgan Jones Solicitors of 49 North Hill Colchester Essex CO1 1PY (‘the Firm’).
the “Client” means the person, firm or company purchasing services from the Firm.
The Client relationship is solely with the Firm, and the Firm has sole legal liability for the work done for you and for any act or omission in the course of that work. No member, consultant or employee of the Firm will have any personal legal liability for that work whether in contract, tort or negligence. In particular, the fact that an individual member, consultant or employee signs in his or her own name any letter or other document in the course of carrying out that work does not mean he or she is assuming any personal legal liability for that letter or document.
2 BASIS OF THE RETAINER
2.1 The Firm contracts on the basis of these Conditions only and acceptance by the Firm of any instructions from its Clients shall be upon such Conditions and shall override any other terms and conditions stipulated or incorporated by its Clients in their instructions or in any negotiations (save as shall have been expressly agreed in writing by the Firm). No variation or representation will be binding on the Firm unless confirmed in writing by a duly authorised representative of the Firm.
2.2 The communications between the Firm and the Client are subject to Legal Privilege but shall be overridden by disclosure by the Firm to the relevant third parties (including mortgage lenders) where material facts come to light which may affect the ability of the Firm to effectively continue with the Transaction and/or would result in fraud or some other offence.
3 FEES AND DISBURSEMENTS
3.1.1 Charging Policy – Non Fixed Fee
3.1.2 At the outset of a matter, the Firm will have been able to agree as far as possible the work which it is to undertake on behalf of its Client and will give its Client an estimate of the total time which it thinks this will take, and the total charges which it envisages will apply, including any disbursements (i.e. payments to be made to third parties in connection with its work) to the extent that the Firm is able to do so. Please note that the Firm’s quotation is set out in the Project and Costing Outline.
3.1.3 The Client may at any stage set an upper limit for the amount the Firm is able to charge the Client, by notice in writing to the Firm. Once the Firm has done work whose value is up to that limit, the Firm will cease to do any further work, unless the Client authorises the Firm to proceed.
3.1.4 Charging Policy – Fixed Fee
3.1.5 In some cases, it may be more appropriate for the Firm to agree a fixed fee with its Client. In such a case the amount charged will not vary accordingly, irrespective of the amount of work done, save for if anything unusual arises or anything arises which was not anticipated by the Firm & the Client at the outset. Examples of unusual work in a conveyancing transaction would include (but not be limited to): rectification of a defective title or lease; lease extension; any ancillary deeds/declarations required.
3.1.6 Professional fees due and payable to the Firm shall be payable by the Client whether or not the matter proceeds to successful completion, at the discretion of the Firm. All disbursements incurred are payable by the Client whether or not a matter proceeds to a successful completion.
3.1.7 If any unexpected extra work becomes necessary, the Firm will agree with the Client what the nature and extent of that work is, and the reasons why it is outside the scope of what it originally agreed. The Firm will give a supplementary estimate of the likely costs of the extra work and agree with the Client before commencing the work. If the Firm cannot reach an agreement it will not be able to carry out the extra elements. If that prevents progress being made with the main work, and that has to cease, the Firm will be entitled to be paid for the work done to date according to the above principles.
3.2 Non-Contentious Work
3.2.1 Where non-contentious business is particularly complex or involves substantial value or responsibility there may be an additional element in the fee to reflect this.
3.3 Contentious Work
3.3.1 Following the issue of court proceedings charges are governed by the Solicitors Act 1974 which provides for the Court in the event of adjudication to decide what charges are reasonable, a procedure known as taxation.
3.3.2 In all other cases prior to the issue of court proceedings charges are governed by the principles set out in Clause 3.1 above.
3.3.3 If successful in litigation, the Firm’s Client may be entitled to recover costs from the other party to the proceedings. However, the Court’s taxation of these costs rarely results in a full recovery by the successful Client. In those circumstances Clients are responsible for the payment for any shortfall to the Firm. If the other party is funded by the Legal Services Commission (formally “Legal Aid”), no costs are likely to be recovered.
3.3.4 Costs awarded against the other party may attract interest from the date of the Court’s order to the extent that the Client has paid the Firm’s fees and disbursements, the Firm will account to the Client for any interest paid by the other party, but will otherwise be entitled to retain it.
3.3.5 The Client may be liable for his or her own costs even if they are 100% successful.
3.3.6 The amount recovered from the opponent will be taken to discharge the Firm’s costs before being paid to the Client.
3.3.7 If the Client withdraws from the action he or she will be responsible for their own costs as well as those of their opponent.
3.3.8 If the case is funded by an insurer the Firm is under a duty to report the prospects of success and as a result of that report funding may be withdrawn.
3.3.9 A costs order does not mean automatic recovery of the Client’s costs as the opponent may not be able to pay and enforcement proceedings will then cost extra.
3.3.10 The Client is liable for their opponent’s costs in addition to their own costs even if he or she loses.
3.3.11 Where the opponent makes a payment into Court of part of the Client’s claim, if that payment is not accepted and the final judgment is for the same amount or a lesser amount, then the Client will have to pay the opponent’s costs from the date of payment in addition to the Client’s own costs.
3.4.1 If disbursements (including, but not limited to, Court fees, Counsel’s fees, fees for medical report, Stamp Duty, search fees and Land Registry fees) are incurred by the Firm on behalf of the Client, they are payable by the Client to the Firm immediately on request. These disbursements are to be collected by the Firm prior to the collection of any monies due pursuant to the Firm’s invoice.
3.4.2 In the event that the Client terminates the Firm’s instructions or for any reason the business does not proceed to completion then, subject to the exception referred to above. The Firm will be entitled to charge in accordance with the foregoing provisions for the time spent in dealing with the business or the stage reached in the transaction, at the discretion of the Firm.
3.4.3 The Client bears primary liability for the payment of the Firm’s charges and disbursements either in the cases where an order for costs or contractual indemnity has been obtained or it is expected that an order for costs or contractual indemnity will be obtained against another party.
3.4.4 The Client is responsible for payment of the cost of seeking to enforce any order for costs or contract for indemnity against another party.
3.4.5 The Firm’s fees attract Value Added Tax at the prevailing rate
3.5.1 Payment of an invoice is due on presentation unless an extended payment time has been agreed by prior arrangement. The Firm will normally deliver invoices in between exchange of contracts and completion on a conveyancing transaction or otherwise at intervals of between six and twelve weeks in respect of cases or transactions continuing for more than three months. Disbursements are, however, payable to the Firm by the Client pursuant to Condition 3.4.1.
3.5.2 In the case of invoices remaining unpaid for a period of fourteen days or more after the date of presentation, the Firm may charge interest to the Client on the amount unpaid, calculated on a daily basis at the statutory rate from time to time in force from the date of delivery of the account without prejudice to any other rights of the Firm. The Firm also reserves the right to recover any reasonable legal or third party fees in connection with the collection of debts due to the Firm.
3.5.3 Payment on or before the due date is of the essence of the Contract and in the event of a Client failing to make payment on the due date the Firm reserves the right to decline to act any further.
3.5.4. If the Firm is working on behalf of the Client and anyone else as well, the Client’s liability to the Firm will be joint and several i.e. the Firm will be able to claim the whole amount owed to it from any single party.
3.6 Public Funding
3.6.1 In certain cases the Client may be eligible for Community Legal Services Funding (formally known as “Legal Aid”) and the Firm will discuss this possibility with the Client whenever appropriate.
3.6.2 Clients entitled to Community Legal Services Funding will have to instruct an alternative firm of Solicitors, appropriate details of which will be supplied on request.
4 CLIENTS’ MONIES
4.1 If the Firm holds money on the Client’s behalf, interest will be paid to the Client in accordance with the Solicitors’ Accounts Rules 1998 (subject to the minimum amount and periods of time therein prescribed) at the rate or rates from time to time recoverable by the Firm from its bankers. The period from which interest will be paid will normally run from the date on which cleared funds are received by the Firm until the date of payment by the Firm of funds to or on behalf of the Client.
4.2 In the cases where the Firm is to make a payment on behalf of the Client (for instances in a conveyancing transaction) the Firm requires to be placed in cleared funds at least one day before the proposed date for payment. If payment to the Firm is by cheque, five working days from receipt should be allowed for clearance. Where the client is obtaining a loan from a third party, the Firm will request the advanced payment from that third party in accordance with the foregoing. The third party may charge interest from the date of issue of a cheque.
4.3 Any electronic transfer of funds during the course of a matter, will be on a same-day basis and will be charged at a minimum fee of £20.00 plus VAT for the service provided (or any other rate as stipulated in the Client Care Letter). Part of this fee is payable to our bank for the transfer service (£15 for a CHAPS payment), and the remainder is chargeable by the firm for time spent on arranging the transfer.
4.4 If the Firm holds any client monies on Account at the end of a transaction and the Firm has made reasonable attempts to return the client monies to the Client without success, then the Firm shall be entitled to pay the client monies to a charity of its choice in the event the sum is under £25 (or higher in the event final notice has been provided to the Client, without response) and it is cost-ineffective for the Firm to continue making attempts to return the monies.
5 CONCERNS ABOUT OUR SERVICE
If the Client is dissatisfied with the handling of his or her instructions by the Firm, the Client may register the concern with his or her fee earner. If, following such reference, the Client still remains dissatisfied, the Client may refer the matter to the Firm’s client care partner Mr David Morgan Jones, who will cause it to be thoroughly investigated and will make a ruling and you will receive a written response. The Firm will provide a copy of its complaints procedure on request.
If you are still not satisfied thereafter, you may refer the matter to the Legal Ombudsman. The address to write to is PO Box 6806, Wolverhampton, WV1 9WJ
6 OUR LIABILITY
6.1 Despite the Firm’s best efforts, it may make a mistake, by which the Firm means any breach of its duties to its Client. If the Firm does, and is liable to compensate the Client, the Client agrees that its liability is limited in the following respects:
6.2 It is the Firm that is liable, not an individual partner or member of staff; the Client agrees to make no claim against an individual except for fraud;
6.3 The Firm’s maximum liability for any mistake (except for fraud) is £2,000,000.00 (unless a different amount is agreed with the Client in writing);
6.4 This overall limit applies whether the mistake affects just one piece of work the Firm does for its Client or several, so long as it is the same or a similar mistake;
6.5 For the purpose of the overall limit, more than one mistake on a matter or transaction is considered as one mistake;
6.6 The Firm is liable for loss that it directly causes and for any indirect or consequential loss or loss of anticipated profit or other benefit where that total liability does not exceed £2,000,000.00. Otherwise the Firm has no liability for any indirect or consequential loss or loss of anticipated profit or other benefit;
6.7 The Firm is not liable to the extent that its mistake results from something the Client does or fails to do (such as giving the Firm the wrong information, or not giving the Firm information at the time the Firm asks for it);
6.8 If others are also responsible for the Client’s loss, the Firm’s liability is limited to its fair share, whether or not the Client is able to recover the rest from the others.
6.9 These limits apply to the extent that they are permitted by law. The Firm cannot, for example, avoid full liability if our mistake causes death or personal injury.
6.10 If the Firm thinks it has made a mistake the Firm has no liability for any breach of its duties unless the Client lets the Firm know in writing about the mistake within 24 months of becoming aware of it, and starts any legal proceedings about it within 12 months of giving the Firm that written notice.
6.11 The Firm is not liable where it acts as Agent of the client (for example in filing of Stamp Duty Land Tax or other Tax forms required for the particular transaction) and the obligation rests solely on the Client to check the contents of any documents/forms are accurate.
6.12 In conveyancing matters the Firm, unless otherwise agreed in writing with the Client and only where the Firm has sufficient expertise, shall not provide advice to the Client on valuation of Property/Land, tax implications, environmental matters, structural matters, mortgage suitability. The Client accepts that it should privately arrange to contact the appropriate specialist in the relevant field(s) to take advice before proceeding with the transaction at hand.
7 STORAGE OF PAPERS AND DEEDS
7.1 The Firm will, following completion of each matter store the Client’s working papers without charge to the Client for as long as it reasonably considers necessary, upon where it will confidentially destroy them. Generally, this will be 6 years after the file is completed. Property Sale files will be held for 6 years, and Purchase files for 15 years.
7.2 The Firm provides a custody service in respect of Wills, Deeds and other securities. A nominal charge will be made for this service. Currently the Charge is £30 + VAT per annum.
7.3 Where stored papers, Wills, Deeds or securities are retrieved from storage by the Firm in connection with continuing or new Instructions to the Firm, a minimum charge will normally be made for such retrieval of £30 + VAT. However, the Firm reserves the right to make a further charge in connection with perusal, correspondence or other work necessary to comply with any instructions given by or on behalf of that Client.
7.4 If a client requests a copy of the Deeds or other documentation on the clients file then the firm will charge 12p per sheet subject to a minimum charge of £25 + VAT.
7.5 Without prejudice to any other remedies, the Firm shall have a general right to retain all Deeds, working papers and other property in its possession and belonging to the Client until all sums due from the Client to the Firm have been paid in full.
8.1 No interest is paid to any client when the interest accrued is less than £20. The administrative time and expense in calculating such interest would exceed the value of the interest that would be paid and thus is below the de minimis level
8.2 Any interest payable pursuant to this Policy shall be at the Barclays Bank rate paid to the client account at the relevant time. Any interest payable will reflect the sum held and the length of time for which cleared funds were held. The SRA requires any firm of solicitors to retain client account monies upon an instant access basis.
8.3 No interest will be due where client funds remain uncleared by Barclays Bank or are not released unconditionally to us.
8.4 Where funds are held by us pursuant to a Stakeholder Account, no interest will be payable to the client unless the stakeholder fund permits this. Where we act as a stakeholder, we are permitted to deduct reasonable administrative charge for so doing, unless the stakeholder fund prohibits this
8.5 No interest shall be payable to any client whilst there are any outstanding fees due to us by the client. In the event that a client has a persistent record of not settling our invoices in full within 30 days of issue during a period of 2 years, then no interest shall be payable for the interest accrued, due to the fact that the firm will have had to pursue unpaid debts and have additional charges
8.6 If reasonable and proportionate, we may deduct its reasonable administrative charges for calculating interest where there have been a number of interest rate changes during the period the interest has accrued and/or additional bank charges incurred by us for calculating the interest accrued.
8.7 We may set off against any interest accrued to a client such interest charged on our office accounts for any disbursements incurred by us on behalf of the client.
9.1 The Client may terminate its instructions to the Firm in writing at any time but the Firm will be entitled to keep the Client’s papers and documents while there is money owing to the Firm for the Firm’s charges, expenses and disbursements.
9.2 In some circumstances the Firm may consider that it ought to stop acting for the Client, for example, if the Client cannot give clear or proper instruction on how the Firm is to proceed or if it is clear that the Client has lost confidence in how the Firm is carrying out its work. The same would apply if it appears to the Firm that there is an apparent conflict of interest between the Client and another one of the Firm’s Clients or an error has been made which makes it inappropriate for the Firm to continue to act and to provide the Client with proper independent advice.
9.3 If the Firm decides to stop acting for the Client, the Firm will give the Client reasonable notice of such a decision. On any termination for any reason, the Firm will retain our rights to payment under these terms.
10 FINANCIAL SERVICES, TAX AND INVESTMENTS
10.1 Sometimes, legal work of the nature we do involves investments. The Firm is not authorised by the Financial Services Authority (FSA), and so may refer the Client to someone who is authorised to provide necessary advice. However, the Firm can provide certain limited services in relation to investments, provided they are closely linked with the legal services it is providing to its Clients, as it is authorised and regulated by the Solicitors Regulation Authority.
10.2 The Firm are not specialist tax advisors and its Clients should seek appropriate advice from suitably qualified advisors unless the firm accepts instructions as to tax related matters in the current transaction being undertaken. Any such acceptance of instructions will be additional work than that quoted to the Client, and chargeable as such at a minimum rate of £160 plus VAT per hour.
11 ANTI – MONEY LAUNDERING
11.1.1 If the Firm is undertaking work on behalf of its Client which is regulated work, as defined by the legislation governing money laundering, the Firm will be obliged to carry out identity checks on its Client. The Firm would ask its Client for its co-operation in this regard, and if the Firm is unable to complete these checks it will not be able to carry out work on its Client’s behalf.
11.1.2 It is important that the Client should understand that, in certain circumstances, the legislation referred to above may oblige the Firm to report suspicions involving possible money laundering transaction to the authorities. The Firm is not obliged to advise its Clients of any such reporting of suspicions to the authorities.
11.1.3 If, as a result of the Firm complying with the terms of this legislation, the Firm would be obliged to do, or refrain from doing, anything in relation to the Client’s work, then the Firm shall not be liable for any consequences of that.
11.1.4 The Firm shall be entitled to request proof of funds from Clients in respect of any transaction, and this proof of funds may comprise completion statements from other Solicitors, Estate Accounts, Bank Statements, or any other source as shall be applicable to the transaction at hand and in relation to the Client’s socio-economic status.
11.1.5 The Firm shall request identification for all Clients (whether companies or individuals) and all beneficiaries, trustees, directors or third parties involved in the transaction, and shall be entitled to undertake enhanced electronic identity verification where it deems necessary, to be classed as a disbursement payable by the Client.
12 DATA PROTECTION
The Firm is registered under the Data Protection Act 1998 and must comply with the General Data Protection Regulations (GDPR). By providing instructions to the Firm on any particular matter the Client shall be consenting to the Firm using personal data for the matter the Firm has been instructed upon and this shall be the lawful basis for processing the data. The Firm is therefore authorised to collect and store personal data as to its clients. Please note that the following terms of this paragraph apply to the data the Firm holds at any time: Personal data relating to the Client is being held electronically and in paper records and files. The only uses the Firm will make of that data are to carry out work on the Client’s behalf and for marketing purposes (unless at any time the Client indicates that it does not want to receive any marketing contact from the Firm) the Firm takes reasonable steps to secure access, storage and transmission of any data collected and stored by the Firm, and utilises manual
server back ups, cloud storage and fireproof safes. The Firm will process data which it needs and collects in a way which is accurate, transparent, fair and lawful.
All Personal Data relating to individual clients of the Firm, individual directors and/or employees of corporate clients, and anyone else with whom we have professional dealings, will, where applicable, be kept confidential and processed in accordance with the GDPR, other relevant UK and EU legislation and in accordance with the SRA Code of Conduct.
The Firm is a data controller for the purposes of GDPR and other relevant data protection legislation. We use your Personal Data primarily to provide legal services to you, but also for related purposes as described in our Privacy Notice below. Please read this Privacy Notice carefully as it contains important information on:
• What Personal Data we collect and how that data is collected
• How, why and on what grounds we use your Personal Data
• Who we share Personal Data with
• Where Personal Data is held and how long it will be kept
• How to make a complaint in relation to our use of your Personal Data
• How to contact us with any queries or concerns in relation to your Personal Data
Our use of your Personal Data is subject to your instructions, the GDPR and our professional duty of confidentiality. Please note that our work for you may require us to share Personal Data with third parties such as expert witnesses and other professional advisers and registries. You have a right of access under the GDPR and other applicable data protection legislation to the Personal Data that we hold about you, as set out in more detail in our Privacy Notice.
13 FORCE MAJEURE
The Firm shall bear no liability for loss, damage or delay howsoever arising caused by circumstances outside its control of whatsoever kind.
If any part of these Conditions is held by any Court or competent authority as invalid, the validity of the remainder of these conditions and of the remainder of the provisions in question shall not be affected thereby.
The construction, validity and performance of this contract shall be governed in all respects by the Laws of England. The Firm and the Client submit to the exclusive jurisdiction of the English Courts.
The Firm is committed to security and privacy of all its clients and all visitors to its website. By using this site you consent to the Firm collecting, storing and processing certain information about you, and where you are a Company, about the Company’s employees or agents, under the terms of this policy.
1. INFORMATION THAT WE COLLECT FROM YOU
When you visit this site you may be asked to provide certain information about yourself including your name, contact details and credit or debit card information.
We may also collect information about your usage of our website as well as information about you from e-mails or letters you send to us.
2. USE OF YOUR INFORMATION
Your information will be used to provide legal and associated services and for the purposes set out below. Other than as set out below, the information will not be used other than in the normal course of the Firm’s business.
Where you have consented, the Firm will use your information to keep you informed of current legal issues, products and services that may be of interest. If you change your mind about being contacted in the future, please let us know by contacting us at the address provided below.
3. DISCLOSURE OF YOUR INFORMATION
The Firm may disclose information about you to its financiers, credit reference and debt recovery agencies, and third party service providers. They will add this information to their records and this may be seen by other organisations that carry out credit assessment searches.
The Firm may disclose your information to a person to whom it proposes to transfer its rights and/or responsibilities under any contract with you or to whom the Firm transfers its business or a relevant part of its business. Such a person shall be entitled to process your data in the same manner set out in this policy.
The information you provide to us may be transferred outside the European Economic Area for the purposes of carrying out your instructions. Countries outside the European Economic Area do not always have strong data protection laws. However, we will always take steps to ensure that your information is used by third parties in accordance with this policy.
Unless required to do so by law, we will not otherwise share, sell or distribute any of the information you provide to us without your consent.
We may obtain information about your general internet usage by using a cookie file which is stored on your browser or the hard drive of your computer. Cookies contain information that is transferred to your computer’s hard drive. They help us to improve our site and to deliver a better and more personalised service. Some of the cookies we use are essential for the site to operate.
5. SECURITY AND DATA RETENTION
We employ security measures to protect your information from access by unauthorised persons and against unlawful processing, accidental loss, destruction and damage. We will retain your information for a reasonable period or as long as the law requires.
6. ACCESSING AND UPDATING
You are entitled to see the information held about you and you may ask us to make any necessary changes to ensure that it is accurate and kept up to date. If you wish to do this, please contact us at the address below. We are entitled by law to charge you a reasonable fee to meet our costs in providing you with details of the information we hold about you.
We want you to know that your matter is important to us, which is why we can confidently promise that:
• We will update you by telephone, email or letter with progress on your matter regularly.
• We will communicate with you in plain language and explain any legal jargon.
• We will explain to you by telephone, email or letter the legal work required as your matter progresses.
• We will update you on the cost of your matter and the likely timescales for each stage, as well as on any important changes in those estimates
• We will update you on whether the likely outcomes still justify the likely costs and risks associated with your matter whenever there is a material change in circumstances.
• We will continue to review whether there are alternative methods by which your matter can be funded.
• We will review your matter regularly.
• We will advise you of any changes in the law.
• We will advise you of any circumstances and risks of which we are aware or consider to be reasonably foreseeable that could affect the outcome of your matter.
How you can help us help you
You can play a very important part in helping us to deal with the matter efficiently, quickly and economically by:
• Giving us clear instructions;
• Telling us in good time if you have important time limits;
• Making sure we have understood each other correctly, asking us if you are not sure about anything;
• Dealing promptly with any important questions which may arise;
• Keeping in regular contact, including asking for news of progress if you did not hear from us when you expected to.
We will always work with you to provide you with the best possible service at the best price. Your satisfaction is our upmost priority so if for any reason you are not happy with our services, please let us know as soon as possible.