Terms of Business1 December 2018, Version 3
1. WHO WE ARE
Kelly Owen Ltd, ‘The Company’, is a limited company registered in England and Wales with Registered Number 10711904 and registered office and place of business at 1 Hind Court, Fleet Street, London, EC4A 3DL. These Terms, together with your engagement letter, set out the basis on which we provide our services (the “Engagement”), and these terms apply to any future work we do for you unless we agree different terms with you in writing. If the letter and these Terms differ, the letter shall have precedence. The Company has sole legal liability for the work done for you and for any act or omission in the course of that work.
2. SOLICITOR CLIENT RELATIONS
- Client instructions will be accepted or declined in accordance with the Solicitors’ Regulation Authority Code of Conduct 2011.
- The member of staff you instruct will normally work on your case personally and may use assistants as is appropriate whilst maintaining overall responsibility.
- We will communicate with you at the address or e-mail address you provide.
- You will set out clearly for us the services you require and objectives you seek.
- You will provide us with sufficient information and documentation we deem necessary to enable us to carry out our work for you.
- In the case of joint clients your liability for our costs is joint and several; you will each be responsible for any amounts due to us.
- Before accepting instructions we will check for conflicts of interest. However, an actual or potential conflict between your interests and the interests of another advised party may arise during the course of a matter. If this situation arises during our dealings with you we will discuss it with you and determine the appropriate course of action. In order to protect your interests we may not be permitted to continue to act for you.
- By instructing us, you agree that your papers and documents may be reviewed by external auditors, including auditors from the Law Society and Solicitors’ Regulation Authority. You may revoke that consent in writing to us as permitted by applicable laws.
- Our transcription may be outsourced to a third party based in the UK or overseas. We will take reasonable steps to ensure that confidentiality and security of information is strictly adhered to.
- We will perform the Engagement with reasonable skill and care. Our advice is prepared solely for you, and for the intended purposes associated with the Engagement and any subsequent variation thereof. Our advice should not be disclosed to or relied upon by third parties without our prior written agreement.
3. TAX ADVICE
Unless our retainer includes advising you in relation to specified tax matters, we will not normally advise on tax issues or their implications.
4. COSTS AND DISBURSEMENTS – FEE INFORMATION
- Except where we have agreed a fixed or scale fee or other alternative fee arrangement, our charges are based on the time we spend dealing with your instructions, and range, on average (and with occasional exceptions), from £100 per hour up to to £409 per hour depending upon the factors listed in sub-clause (b) below. Chargeable time will include meetings with you and others; any time spent travelling; considering, preparing and working on papers; correspondence including faxes and emails; and making and receiving telephone calls including calls to and from you. All letters and telephone calls will be charged on a time basis. We record time in minimum units of one-tenth of an hour. In addition, VAT will be added to our charges at the current rate from time to time. On 1 July annually we review the hourly rates and will notify you in writing of any increase.
Expenses such as Counsel’s fees and/or Expert’s fees which are incurred will also attract VAT.
- In determining the time charges referred to in paragraph (a) reference will be had to the other factors set out in the Solicitors’ (Non-Contentious Business) Remuneration Order 2009 including:–
- the complexity of the matter;
- the skill, labour, specialised knowledge and responsibility involved;
- the number and importance of documents prepared or considered;
- the amount or value of any money or property involved; and
- the urgency of the matter and the need to prioritise it over other work of the Firm.
- Wherever possible we will, upon accepting instructions, give you an estimate of the likely costs involved and will revise that estimate from time to time if it becomes necessary. Likewise we will give you an estimate of disbursements that are likely to be incurred. If we have provided you with a written estimate, it is given only as a guide to assist you in budgeting and should not be regarded as a fixed quotation.
- Our costs take into account our incidental disbursements such as normal postage and normal telephone charges. We will charge you for any other expenses we incur in connection with your business including printing, exceptional photocopying and typing requirements, couriers and any exceptional telephone (including overseas and conference calls) and/or fax costs.
- Our current hourly charging rates for fee-earners for your matter are as set out in our Engagement letter.
- Unless otherwise agreed, our charges will be payable whether or not any particular matter proceeds to completion.
- Our bills are signed by a director, and such signatures may be an electronic signature.
- Timing of bills often depends on the nature of a matter. We reserve the right to bill you on an interim basis and will endeavour to send you bills on a monthly basis, or any other regular basis agreed with you. Bills may be delivered more or less frequently depending on the nature of the matter and the time spent working on it. On some transactional matters, our bill may not be delivered until shortly before or at the conclusion of the transaction.
The £100/hour rate applies to paralegal work, £200-£300/hour rates apply for work done by the Firm’s other qualified lawyers, and the potential £409/hour maximum hourly rate will be charged for work by the Directors of the Firm.
With regard to SRA Transparency Rules of 6th December 2018 1.3 and 1.4, the Firm generally does not undertake to provide services to individuals in relation to representation before employment tribunals, applications for business premises licences, or for conveyancing, motoring offences, probate or immigration services. In compliance with SRA rules of 6th December 2018 1.4(b) cost information in relation to the Firm’s services for debt recovery is as follows:
If you have evidence of a debt which is owed to you, we will offer to consider your documentation free of charge, subject to us having available time to do so. Following such an initial review, we will confirm whether it appears that the debt is properly owing. To pursue the debt claim, if we considered there to be adequate prospects of success and recoverability, we would gather such information as is available and write a letter before action. We would take reasonable further steps such as re-sending our letter before action and responding to any reply upon your instructions. For this work we would charge between 20% and 40% of sums recovered, including VAT. The factors determining whether our fee is nearer to 20% or nearer to 40% would depend upon the amount due to be recovered and our opinion of the prospects of ultimate recoverability. If nothing were recovered, we would not charge, unless we had previously agreed a fixed fee in writing with you.
If the matter proceeded to our being instructed to issue a court claim to recover the sums due, then we would charge our hourly rates as set out above. At this point we would provide more detailed costs information tailored to your particular case and include information about the likely disbursements you would have to pay in addition to our fees such as court fees, barristers’ fees, expert fees and the like. We would also advise on the risk that you may be liable to pay the other side’s legal fees if the claim is not successful, the time scales involved, issues of enforcement and the possibility of appeals.
5. PAYMENT – PRIVATE CLIENTS
- Any account rendered by us is due for payment on delivery and interest will be charged at four per cent above the base rate applied from time to time by Barclays Bank plc on any balance outstanding after 30 days. If any element of a bill is queried that part of the bill which has not been queried is to be paid in any event.
- We may from time to time deduct sums due to us from monies in hand on your account, if any.
- We may from time to time invoice you on account of the final bill for costs and disbursements. Such invoices may be sent periodically in accordance with our Engagement letter or at any natural break in the instructions.
- If you have any query about your invoice, including the basis on which it has been calculated, you should contact the partner or fee-earner with day-to-day responsibility for your work as soon as possible and in any event within 30 days, after which we will treat the amount shown in the invoice as recoverable by any means.
- You are entitled to have a bill checked by an officer of the High Court by a procedure known as assessment of costs.
6. INTEREST ON CLIENT MONIES
- Interest will be paid to clients in accordance with the current Solicitors’ Accounts Rules 2011 – see particularly Rules 22-25 (except where clients have specifically agreed to waive their entitlement to interest under those Rules).
- Interest is normally paid at the end of a case.
- Interest is paid on relevant client monies held if a certain amount or more is held for a specified time or longer, in accordance with a prescribed scale which we can provide:
- Interest is paid at the credit interest rate received by us from our bank. These rates are subject to change from time to time and details are available upon request.
- No interest will usually be paid to a client if the amount calculated on the balance of the relevant client monies held is £20 or less.
- A client can, by written agreement with us, come to a different arrangement in relation to interest on client monies, so long as that arrangement is fair and reasonable in all the circumstances.
We will on giving reasonable notice be free to refuse to act or to continue acting and in particular if:–
- we are or may be in breach of the law or the principles of professional conduct by accepting or continuing to accept instructions;
- we consider there is or may be a conflict or risk of conflict between your interests and those of any other client of ours or the company;
- any request for money on account of costs or disbursements incurred or to be incurred has not been complied with within one week of it being made; or (d) there are other reasonable grounds.
You may terminate our retainer in writing at any time. In some circumstances, you may consider we ought to stop acting for you, if, for example, you cannot give clear or proper instructions on how we are to proceed, or if it is clear that you are not satisfied with how we are carrying out your work.
8. CONSEQUENCES OF TERMINATION
If we cease acting for you, we shall, where relevant, apply to remove ourselves from the court or tribunal record. If our instructions are terminated for any reason then we may in addition to any other remedy available to us:–
- retain any deeds, securities or other documents under our control; and
- retain any monies for the time being standing to any account you may have with us
until payment has been made of all outstanding costs and disbursements (including, in both cases, any not yet billed) together with VAT and costs and disbursements incurred in connection with the termination.
9. CONTINUING OBLIGATIONS
- Unless specifically otherwise agreed, we shall not be under any continuing obligation to advise you of changes in the law which may affect advice previously given.
- All communications generated between us shall remain confidential and shall not be disclosed to any third party without consent or where we are under a professional duty to do so.
- As part of our commitment to provide a good quality service to you we may, from time to time, invite suitably qualified external assessors periodically to review our files on a sample basis for compliance. These external firms or organisations are required to maintain confidentiality in relation to your files.
10. CONCERNS AND COMPLAINTS
We are confident that we will provide you a high quality legal service in all respects. When something goes wrong, we need to know about it so that we can try to put things right and improve our standards.
If possible we believe that it is best to deal with concerns straightaway rather than later. If you have a concern about the way your case is being handled then, in the first instance, you should raise this with your lawyer’s Supervisor. The name of the Supervisor can be found in the Client Care letter. He or she will try to resolve any concern you have as quickly as possible and in any event within 10 working days.
If the Supervisor is unable to resolve the problem then you can make a Formal Complaint to the Complaints Handler Anthony Owen. It does assist us if you put the complaint in writing but you can communicate with us in any way you wish.
We aim to deal with complaints promptly, fairly, openly and effectively. If you make a complaint to us, this will not adversely affect your future dealings with us.
We will acknowledge any formal complaint within 5 working days and after a full investigation of the facts will normally provide a substantive response within 15 working days. If we need more time we will explain why.
A copy of our Complaints Policy and Procedure is available on request.
The Legal Ombudsman
If we are unable to satisfactorily resolve the problem then you have the right to take the matter to the Legal Ombudsman. Before you approach the Ombudsman, you must usually have already made a Formal Complaint to us.
The Legal Ombudsman will not normally consider a complaint unless:
- It is made within 6 months of you receiving a final response from us; and
- It is made in relation to an act or omission that took place after 5 October 2010 (or you should reasonably have known about the cause of complaint after that date); and
- It is made no later than 6 years from the date of the act or omission or 3 years from when you should reasonably have known there was cause for complaint.
You should note that referral to the Legal Ombudsman is generally not available to the following clients:-
- most businesses (unless they are defined as micro enterprises)
- charities or clubs with an annual income of more £1m, or
- trustees of trusts with asset value of more than £1m
Further guidance is available at: www.legalombudsman.org.uk/ The Legal Ombudsman can be contacted by:
Telephone: 0300 555 0333
Post: PO Box 6806, Wolverhampton, WV1 9WJ
11. STORAGE OF PAPERS AND DOCUMENTS
After completing the work, we are entitled to keep all your papers and documents while there is money owing to us for our charges and expenses. Except for any of your papers which you ask to be returned to you, we will keep your file on the understanding that we have your authority to destroy it a certain time after the conclusion of the matter. This date will be no less than 6 years after the conclusion of the matter. Completed files are sent to external storage and there may be a delay of several days following a request for retrieval. If we retrieve papers or documents from storage in relation to continuing or new instructions to act in connection with your affairs, we shall not normally charge for such retrieval. However, we may make a charge based on time spent producing stored papers or documents to you or another at your request. We may also charge for reading, correspondence or other work necessary to comply with new instructions given by you or on your behalf. If you request us to send a file or specific item to you or a third party we will make an administration charge for retrieving and forwarding the file.
12. ELECTRONIC STORAGE OF INFORMATION
To enable us to provide an efficient service correspondence and documents received by us may be routinely scanned into our data storage and retrieval systems in lieu of a paper file. The originals may be destroyed unless you have provided us with specific instructions in writing not to do so. In addition, personal information you provide to us will be stored on our systems. We will retain electronic information for a minimum of 6 years. Further details can be provided upon request to the Managing Partner. By submitting any correspondence, documents or personal information to us, you consent to the storage of information about you and your matters in such media. If you request us to send stored date to you or a third party we will make an administration charge for retrieving and forwarding the data.
13. DATA PROTECTION
We use the information you provide primarily for the provision of legal services to you and for related purposes including:
- updating and enhancing client records
- analysis to help us manage our practice
- statutory returns
- legal and regulatory compliance
During and after the Engagement we may process on your behalf any personal data you have provided to us. Such processing shall be in accordance with, and subject to, your instructions except as described below. We will ensure that all appropriate technical and organisational measures are taken to protect any personal data supplied by you to us against unauthorised or unlawful processing, accidental loss, destruction or damage, including when we sub-contract any processing (for example, in the case of external storage of data). Your instructions are taken to include the use by us, where appropriate, of independent contractors appointed by us for functions such as data and file storage, back-up, destruction, billing, debt collection, legal processing and the like, in accordance with the foregoing.
Our use of that information is subject to your instructions, the General Data Protection Regulation and our duty of confidentiality. Please note that our work for you may require us to provide your personal data to third parties such as expert witnesses and other professional advisers. You have a right of access under applicable data protection legislation to the personal data that we hold about you.
Sometimes we may ask other companies or people to do typing, photocopying or other work on our files to ensure this is done promptly. We will always seek a confidentiality agreement with these outsourced providers. If you do not want your file to be outsourced, please tell us as soon as possible.
We may from time to time send you information that we think might be of interest to you. If you do not wish to receive that information please notify our office in writing or via email to: firstname.lastname@example.org.
14. MONEY LAUNDERING REGULATIONS 2017
- In order to enable us to satisfy our obligations under these Regulations and related legislation, it will almost always be necessary for you to supply appropriate proof of identity before we are able to act or continue to act for you or for any partner whom you may represent. We will also not be able to receive any funds from, or pay any funds to, you or on your behalf unless all necessary identification and other procedures have been satisfied for the purposes of the Regulations.
- In the light of the Regulations and for insurance reasons we do not normally accept cash payments from or on behalf of clients and then only in special circumstances.
- We may use electronic identification service providers to confirm your identity, and that of any beneficial owners.
- For individuals and unincorporated partnerships, proof of identity will usually be a current valid passport, driving licence, recognised identity card or equivalent showing your name, date of birth and photograph, together with a current utility bill or equivalent confirming your address.
- For companies and limited liability partnerships, we will usually require a copy certificate of incorporation and copy audited statutory accounts together with personal identification as above in respect of some or all of the body’s officers. In the case of a company incorporated overseas, there should also be a certificate from lawyers qualified in the relevant jurisdiction to the effect that the company is properly incorporated, together with evidence of the company’s directors and of the authority and identity of the persons instructing us.
- For other clients, e.g. trusts, estates, charities and unincorporated associations, we will advise you of the documents needed for proof of identity.
- We will need to check whether you may be a “politically exposed person” as defined in the Regulations, or a family member or close associate of such a person.
- For all clients other than individuals, we will also need to establish the identity of the beneficial owner(s) of the client. This is likely to mean that we have to ask for additional documentation such as the documents which evidence ownership and control of the client. We will discuss this with you.
- We understand that the operation of these Regulations may be a cause for concern, but we ask for your understanding and cooperation in assisting us to comply with our legal obligations.
15. PROCEEDS OF CRIME ACT 2002 & TERRORISM ACT 2000
- We are prohibited by this legislation from acting for or advising a client in relation to terrorist financing, or the acquisition, retention, use or control of the proceeds of any crime or any attempt to conceal, disguise, convert or transfer any criminal property or to remove it from the jurisdiction, or from being involved in arrangements relating to such activities. The proceeds of crime and criminal property are widely defined for these purposes to include any activity (including tax evasion) carried on anywhere which would be illegal if carried on in the UK.
- We have a legal obligation to report to the National Crime Agency any person, including a client, suspected of involvement in activity covered by this legislation. As a result we reserve the right to make all disclosures to relevant authorities as required by law, without notice to you, and if appropriate to cease acting for you without giving any specific reason.
- These obligations override our normal duty of confidentiality to you. We will not accept any liability for any loss or damage that you or any third party may suffer or incur on any account for any action taken, or not taken, by us in good faith with a view to complying with this or any related legislation.
- We may also require confirmation from you of the source of any funds, in particular any remitted from overseas, and whether all necessary tax has been paid and all necessary returns made in relation to any overseas funds. We reserve the right to require further information and supporting documentation as appropriate.
- In order to minimise the risk of disruption to the completion of any transaction which we are to complete on your behalf, which involves the provision to us of funds by you, we ask that you let us have cleared funds no later than seven working days before the date set for completion. If this is not possible in any case please discuss the position with us as soon as possible.
16. LIMITATION OF LIABILITY
- We believe that the limitations on our liability as set out in this agreement are reasonable having regard to the availability and cost of professional indemnity insurance and possible changes in its availability and costs.
- We will not be liable to the extent caused by the provision of false, misleading or incomplete information or documentation or due to the acts or omissions of any person other than us, except where, on the basis of the enquiries normally undertaken by solicitors within the scope of this agreement, it would have been reasonable for the solicitor to discover such defects.
- Subject to clause 20(b) the total aggregate liability of Kelly Owen Ltd, its directors, employees and consultants to you (and where we are instructed jointly by more than one party, all of you collectively and in total and also including anyone claiming through you) for any claims, demands and costs (including claimant’s costs) in respect of any act, omission or negligence arising from or in connection with this agreement (including any addition or variation to the same) shall not exceed £3 million or such larger sum as may from time to time be the minimum level of cover prescribed for us by the Solicitors’ Regulation Authority.
- Proceedings in respect of any claims against us must be commenced within 3 years after you first had (or ought reasonably to have had) both the knowledge for bringing an action for damages and the knowledge that you had a right to bring such an action and in any event no later than 6 years after any alleged breach of contract, negligence or other cause of action. This provision expressly overrides any statutory provision which would otherwise apply; it will not increase the time within which proceedings may be commenced and may reduce it.
- If we are liable to you either jointly or jointly and severally with any other party:
- We shall only be liable to pay you the proportion which, due to our fault, is found to be fair and reasonable. We shall not be liable to pay you the portion which is due to the fault of another party (irrespective of any limitation provision which may apply to the liability of such other party); and
- any sum due from us to you shall be reduced by the proportion for which another party would have been found liable if either:
- you had also brought proceedings or made a claim against them; or
- we had brought proceedings or made a claim against them under the Civil Liability (Contribution) Act 1978 or any similar enactment under any other relevant jurisdiction.
- We shall not be liable for any loss arising from or connected with our compliance with any statutory obligation which we may have, or reasonably believe we may have, to report matters to the relevant authorities under the provisions of any anti-money laundering or other legislation which may apply from time to time.
- This paragraph shall apply to any claim against us by you and, if any duties are held to be owed to them, any individuals or bodies who are related or associated to you, and any officers, employees or consultants of any of these entities.
- All claims arising from the same act or omission, or from a series of related acts or omissions, shall be regarded as one claim, whoever they are made by.
- You agree that you will not bring any claims or proceedings against our individual directors, partners, employees or consultants. This clause shall not operate so as to exclude any liability which a director, partner, employee or consultant is not permitted by law or rules of professional conduct to limit or exclude. This clause is intended to benefit such member partners, partners, employees or consultants who may enforce this clause pursuant to the Contracts (Rights of Third Parties) Act 1999 (“the Act”). Notwithstanding any benefits or rights conferred by this agreement on any third party by virtue of the Act, the parties to this agreement may agree to vary or rescind this agreement without any third party’s consent. Other than as expressly provided in this agreement, the provisions of the Act are excluded.
- No liability will in any event apply in respect of any incidental, indirect, special or consequential damages, including but not limited to loss of revenue.
- We will not be liable to you for any failure to perform or delay in performing any of our obligations to the extent that the failure or delay is caused by circumstances beyond our control including but not limited to telecommunications failure, power supply failure, terrorism and computer breakdown.
- Note however that these exclusions shall not apply to any claim in respect of the death of or injury to any person, or fraud. Subject to that, please note that by entering into an agreement upon these terms and conditions, you are agreeing to limit your potential ability to claim in accordance with the above.
17. THE CONSUMER PROTECTION (DISTANCE SELLING) REGULATIONS 2000
Under the above regulations, for some non-business instructions, you may have the right to withdraw if our contract to provide you with legal services is concluded prior to meeting you. This right to cancel without charge will subsist for seven days after the contract was concluded. However, if we start work with your consent within that period, you lose your right to withdraw. Notice of cancellation should be sent by email or fax to the person named in our engagement letter as being the person responsible for the matter. Unless we advise you specifically otherwise, our retainer is likely to last more than 30 days.
Our accounts are held in banking institutions regulated by the Financial Conduct Authority. In the event of any such banking institution being unable to repay depositors in full, we shall not be liable to you for any losses suffered as a result of the institution’s failure.
- Unless we agree otherwise, all copyright subsisting in the documents and other materials that we create whilst carrying out work for you will remain the property of Kelly Owen Ltd. You will have the right to use such documents and materials for the intended purposes for which they are created.
- You agree not to make our work, documents or materials available to third parties without our prior written permission and we accept no responsibility to third parties for any aspect of our professional services or work that is made available to them.
20. PROFESSIONAL INDEMNITY INSURANCE
We carry professional indemnity insurance for our work. We maintain a professional indemnity insurance policy with China RE Syndicate 2088. Pursuant to the Provision of Service Regulations 2009 we are obliged to provide the following details:
Insurer: China RE Syndicate 2088
Address: c/o Miller Insurance, 70 Mark Lane, London EC3R 7NQ
Further details can be provided upon request to Thomas Kelly at our principal place of business.
- These Terms of Business shall not affect any provision of the general law or professional standards applicable to the relationship between us and you as solicitor and client.
- We will not be liable to you or any third party if we are unable to perform our services as a result of any cause beyond our reasonable control. If any such event should arise, we will notify you as soon as reasonably practicable.
- We are regulated by the Solicitors’ Regulation Authority. Their rules, including arrangements for complaints or redress if something goes wrong, are available at http://www.sra.org.uk/rules. We are not separately regulated or authorised by the Financial Conduct Authority.
- Sometimes our work involves investments. As stated, we are not authorised by the Financial Conduct Authority and so may refer you to someone who is authorised to provide any necessary advice. However we can provide certain limited services in relation to investments, provided they are closely linked with the legal services we are providing to you, as we are regulated by the Solicitors’ Regulation Authority.
- Any notice to be given to us may be sent to us at our principal place of business and, any notice to be given by us, may be given to you at your last address known to us.
- Any dispute or legal issue arising from our terms of business will be determined by the law of England and Wales, and considered exclusively by the English and Welsh courts.
Company Number: 10711904, SRA Number: 639265
VAT Registration Number: 288411971
Registered Office: Tallis House, 2 Tallis Street, Temple, London EC4Y 0AB DX: LDE 290
Phone: +44 (0)20 3793 5190
Fax: +44 (0)20 3793 5186