TERMS OF BUSINESS
Gillen De Alwis’ Terms of Business are sent out with every engagement letter confirming your instruction to us. The Terms of Business sets out how the Firm will carry out the work for you and the basis of charging for our services. Your continuing instructions to us will amount to an acceptance of these terms. Gillen De Alwis is a Limited Company.
RIGHT TO WITHDRAW INSTRUCTIONS
If your contract is or takes effect as an “Off Premises Contract” and you are a “Consumer”, you have a right to withdraw your instructions within 14 working days of the date you FIRST instruct us without giving any reason and without charge. In such circumstances you can cancel your instructions by contacting us by post, email or fax.
The terms “Off Premises Contract “and “Consumers” have the meanings given to them in Regulation 5 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
Please note that for Off Premises Contracts we will not commence work on your matter prior to the expiry of the 14-day cancellation period unless we have received your express written consent. If you have asked us to begin performance of services during the cancellation period, you will be liable to pay an amount in accordance with the services carried out during this period.
PROCEEDS OF CRIME
As Solicitors we may be obliged by statute to make disclosure to the Serious Organised Crime Agency or National Crime Agency where we know or suspect that a transaction may involve money laundering or terrorist financing. If we make a disclosure in relation to your matter, we may not be able to tell you that a disclosure has been made. We may have to stop working on your matter for a period and may not be able to tell you why.
We will not be responsible for any loss that you suffer from any disclosure under these provisions. Accordingly, we do not accept payments to us in cash in excess of £1000. Monies due to you from us will be paid by cheque or bank transfer and we reserve the right to refuse to make payment to a third party.
REGULATORY REQUIREMENTS – FINANCIAL SERVICES
We are not authorised by the Financial Conduct Authority. If while we are acting for you, you need advice on investments, we may have to refer you to someone who is authorised to provide advice. However, we may provide certain limited investment advice services where they are closely linked to the legal work, we are doing for you. This is because we are members of the Law Society of England and Wales, which is a designated professional body for the purposes of the Financial Services and Markets Act 2000.
The Solicitors Regulation Authority is the independent regulatory arm of the Law Society. Complaints are handled by an independent body known as the Office of the Legal Ombudsman. If you are unhappy with any investment advice you should raise it with our Client Care Director. If you are unhappy with the outcome you receive from us, you should raise your concerns with either of these bodies.
Unless we have given you a formal and fixed quotation our charges are generally calculated by reference to the time spent on your matter, which will include meetings with you and others relevant to your matter, travel time, reading, drafting and working on papers, correspondence, telephone calls and other forms of communication. We keep a detailed record of this.
Time is charged in 6-minute units at hourly rates, where applicable, our fees are set out in the client care letter which accompanies the Terms of Business. Where appropriate and if no formal fixed fee quotation has been given, other factors such as the complexity of the matter, the expertise or specialist knowledge required, the speed at which it must be dealt with, carrying out work outside normal office hours and the value of the property or subject matter involved may be taken into account and may entitle us to a further percentage uplift in our charges.
In matters which may involve court proceedings you are generally responsible for paying out charges in full whether or not costs are recovered from your opponent and even if the full amount of your costs is not recovered. This may be because no order for costs is made or because your opponent is incapable of paying the full amount or any part of your costs. If you lose your case, you may be liable for both your own costs and all or some of your opponent’s costs. Costs may be assessed by the court as the matter progresses and you may only be allowed a short period of time in which to pay.
Our charging rates are normally reviewed during April in each year. If our charging rates are reviewed during the course of your matter, we will notify you of any change.
Gillen De Alwis is registered for VAT and our registration number is 240439134. VAT is payable at the current rate as shown on yourinvoice; VAT is payable in addition to our fees.
Otherwise unless agreed with you in writing our charges are payable whether or not the matter proceeds to completion.
BILLING AND PAYMENT
All bills must be paid in full on within 14 days of delivery, unless otherwise stated. Where we supply our services to you in the course of your business, we reserve the right to charge interest at the prevailing rate of interest under the Late Payment of Commercial Debts (Rate of Interest) Order. We also reserve the right to claim compensation on all late payments under the Late Payment of Commercial Debts (Interest) Act 1998. Where we supply our services to you as an individual, we reserve the right to charge late payment interest at a rate which is commensurate to the prevailing rate of interest under the Late Payment of Commercial Debts (Rate of interest) Order. We also reserve the right to suspend or terminate work on all or any of your matter until payment has been made in full. Any exchange rates losses must be borne by you. The Solicitors Regulation Authority permits us to set off funds held on your behalf in our client account where you owe us money for any reason, and we reserve the right to do so. We are also permitted to hold a lien over your file.
You will receive the benefit of any commissions we receive from a third party in relation to any matter we are handling for you.
PROFESSIONSL INDEMNTY INSURANCE
We maintain professional indemnity insurance in accordance with the rules of the Solicitors Regulation Authority. Details of our insurers and the policy are available for inspection at our offices upon request. Our cover is restricted to England and Wales and up to a maximum of £5,000,000.00.
Where it is necessary to use other professional advisers to assist with your matter, we will instruct them on your behalf, and you will therefore be directly liable for their costs and expenses. Although we will endeavour to select such professionals carefully, we cannot accept liability for the accuracy of the advice which they give or any act or omission on their part.
We respect the confidentiality of information that our clients give us and we will not disclose it to third parties except, where relevant, to professionals instructed by you or by us on your behalf, to persons authorised by you to receive it or where we are required to do so by law.
External firms or organisations may conduct audit or quality checks on our practice. These eternal firms and organisations are required to maintain confidentiality in relation to your files.
We are happy to use email or fax to communicate with you and will try to ensure that virus screening is carried out on all out communications, but you should be aware that these methods of communications are not necessarily secure and you are responsible for your own security arrangements and virus screening where these are received by you
ACCESSIBILITY, EQUALITY & DIVERSITY
If you have special requirements, please contact us and we will try to accommodate them. We may be able to arrange home visits for those who are unable to access our offices through mobility problems. Gillen De Alwis Solicitors is committed to promoting equality and diversity in all our dealings with clients, third parties and employees.
PRIVACY AND DATA PROTECTION
We will use the information you provide primarily for the provision of legal services to you and for related purposes including updating and enhancing client record analysis to help us manage our practice, statutory returns and legal and regulatory compliance. We may also use your details to send you information on our services and any events which we believe may be of interest to you. If you do not wish to receive such information, please let us know.
Our use of that information is subject to your instructions, the Data Protection Act 1998 and our duty of confidentiality. Please note that our work may require us to give information to third parties such as expert witnesses and other professional advisors. You have a right of access under the data protection legislation.
Any personal data we receive from you for the purposes of our money laundering checks will be processed only for the purposes of preventing money laundering and terrorist financing, or as otherwise permitted by law or with your consent.
You consent to us retaining such data for longer than the five-year statutory period, unless you tell us otherwise.
We have appointed the following person as our representative for the purposes of the Data Protection Act: Niamh Matthews-Murphy.
The law requires solicitors to get satisfactory evidence of the identity of their clients and sometimes people associated with them. This is because solicitors who deal with money and property on behalf of their client can be used by criminals wanting to launder money. So, we need to get evidence of your identity as soon as possible. Our practice is to inspect your passport or photocard driving licence and carry out any online searches to obtain suitable evidence. The fee for these searches will appear on your bill.
If you cannot come in to see us so we can check your identity documents, we can accept copies, but we will need those copies to be certified by another solicitor or Notary of the Public. They should write ‘This copy is a true likeness of the original which was presented to us by the person named therein’ on the copies, and sign and date them, and include their name, occupation and contact details.
Please note that photocopies are not acceptable. Please personally bring the originals to the office where we will take copies and certify them. Please note we cannot certify copy identity documents without the individual being present. Originals sent in the post cannot be accepted.
Complaints are best dealt with promptly. Therefore, if you have any concern or a serious grievance regarding our services or our charges, we invite you to contact our Client Care Partner at an early stage as problems can generally be resolved more quickly and effectively by doing so. Our aim is to achieve client satisfaction and we will listen to you and try to provide an effective solution to your concerns.
Our Client Care Director is Niamh Matthews-Murphy she is contactable on (0)20 3457 6400, at firstname.lastname@example.org or at 23 Berkeley Square, Mayfair, London, W1J 6HE
If you are not satisfied with our handling of your complaint you can ask the Legal Ombudsman at
PO Box 6806 Wolverhampton WV1 9WJ; Tel: 0300 555 0333; Email: email@example.com to consider your complaint.
The legal ombudsman’s time limit for accepting a complaint is six years from the date of the act/omission, and three years from when the complainant should have known about the issue.
If you would like a copy of our written Complaint’s Procedure, please let us know and we will send it to you.
You may also have a right to apply to the court for an assessment of our bill under Part III of the Solicitors Act 1974.
TERMINATION OF INSTRUCTIONS
You may end your instructions to us in writing at any time, but we can keep all your papers and documents while there is still money owing to us for our fees and expenses.
We may decide to stop acting for you but only with good reason and on reasonable notice. Examples of good reasons include where there is a breakdown in confidence between us; if you do not pay an interim bill or request for payment on account; where we judge that your refusal to accept our advice on the merits of your case runs the risk of exposing you or another interested party to costs which outweigh the potential outcome. We must give you reasonable notice in writing.
Where we have not met with you under the Consumer Protection (Distance Selling) Regulations 2000, for some non-business instructions, you may have the right to withdraw without charge within seven working days of the date on which you asked us to act for you. However, if we start work with your consent within that period, you lose that right to withdraw. Your acceptance of these Terms and Conditions of Business will amount to such consent. If you seek to withdraw instructions, you should give notice by telephone, e-mail or letter to the person named in the accompanying letter as being responsible for your work. The Regulations require us to inform you that the work involved is likely to take more than 30 days.
PAPERS HELD BY US
We will keep copies of our file for such a period as is required by the Solicitors Regulation Authority or for such longer a period as we consider appropriate. After this period, we reserve the right to destroy the file, apart from any documents which you ask us to keep in safe custody or any deeds/wills, without further reference to you. We reserve the right to store your file electronically by scanning all paper documents and then shredding the paper file. Your consent to this system is implied unless you inform us otherwise, in which case we will forward the paper file to you to keep once it has been scanned. The costs of this will be attributed to you.
Where we store deeds/wills or other documents on your behalf for any length of time we will not normally charge you for their retrieval from storage in connection with new continuing instructions. But where they are transferred to you or a third party (whether on termination of a retainer or following completion of a matter) we reserve the right to make an appropriate charge for the retrieval from storage and transfer to you. This charge would include time spent producing stored papers and any reading, correspondence or other work necessary to comply with your instructions.
OUR LIABILTY TO YOU
We endeavour to exercise all reasonable care and skill and to maintain confidentiality in respect of your affairs. In so far as permitted by law we do not accept any further liability to you.
However should we be judged by a Court as being negligent in carrying out that service our liability to you in contract or in tort for any direct loss damages costs or expenses resulting from our negligence, after taking into account the contributory negligence of any other party involved, will be limited, so far as permitted by law.
We will not be liable for any consequent costs or losses, special costs or losses or exemplary damages, or costs or losses attributable to lost profits and opportunities.
If we are acting for more than one person that liability will be to all parties jointly and not individually and it will be your responsibility to agree the apportionment of any damages between you.
Please ask us if you would like us to explain and of the above.
CLIENT FUNDS AND INTEREST
Any funds received on your behalf will be held in our client account. Our Interest Policy explains our approach to paying interest where we hold money in client account for client, a person funding all or part of our fees, a trust, or a stakeholder (collectively called “the recipient(s)”). This is a summary of the relevant part of our Interest Policy. You can ask us to send you a copy of our full Interest Policy.
We will pay interest when it is fair and reasonable to do so in the circumstances and pay a fair and reasonable sum calculated over the whole period for which any money is held.
When will we pay interest?
We will not pay interest: on money held to pay a professional disbursement, once the intended recipient has requested that we delay in paying them; on money that we have paid into client account as an advance from the firm to fund a payment on behalf of a client or trust in excess of funds held for that client on trust; if we have agreed with the recipient to contract out of our obligation to pay interest; on monies that we are instructed to hold outside a client account in a manner that does not attract interest, e.g. cash held in our safe; nor where the amount of interest, calculates in accordance with this Policy is less than £20.
If requested, we will pay interest on all other monies held on client account, including any monies we should have held on client account but failed to do so.
Interest will be calculated and paid in accordance with this Policy. The amount of interest paid to each recipient will take into account various factors that are explained in our Interest Policy.
Interest on Monies held in a Separate Dedicated Client Account (SDCA)
When requested by a client we will pay it into a SDCA with Metro Bank plc.
This is not a rigid rule and you should contact us if you would prefer us to take a different approach.
Unless we are instructed to the contrary, we will pay 100% on the interest received on monies deposited in an SDCA to the recipient to whom we ultimately pay the monies on deposit. Where the monies on deposit are divided between more than one recipient, we will divide the interest in the same proportions.
Interest will be paid net of tax unless the recipient has signed a declaration that they are entitled to receive gross interest.
Interest on monies held in our general client account
Any money not held in an SDCA will be held in our general client account. We will pay interest based on the average rate we receive on our Metro Plc account.
The interest rate is likely to change from time to time and will be reviewed at six-monthly intervals. The rates currently in use can be made available on request by the firms Accounts Department (firstname.lastname@example.org).
Interest on more than one matter
Where we hold monies on more than one matter for a recipient, interest will be calculated separately for each individual instruction – unless it is fair and reasonable to aggregate the interest.
Best available interest account
We are required by the Solicitors Regulation Authority to deposit monies in instant access accounts only. This means that the interest rate paid on monies in an SDCA or in our general client account may not be as high as the recipient can achieve by placing the money on deposit themselves. Please contact us if you wish to discuss making alternative arrangements.
Interest on Monies held in our General Client Account
Interest will be paid at the conclusion of the matter or accrued on a six-monthly basis if monies are held for longer than 6 months. Interest will be calculated over the whole period that we hold the monies, starting from the date the monies are treated by us as cleared funds; this is explained in our Interest Policy.
If we hold money jointly with a client, the interest earned will belong to the client, unless we agree otherwise.
If we hold money jointly with another firm, we will agree with the other firm how interest will be allocated.
Please see our Interest Policy for other special cases, e.g. monies held as liquidators, trustees in bankruptcy etc.
Where we pay money by cheque to a recipient who delays in paying the cheque into their bank, we will pay additional interest only where it is reasonable in all the circumstances to do so. We reserve the right to charge for the additional work involved.
We may, by written agreement with you/or the recipient, contract out of the terms of this Interest Policy. We will contract out only where doing so provides a fair outcome. This will depend on all the circumstances.
When agreeing to contract out we will act fairly towards you and provide sufficient information to enable you to give informed consent.
To the contrary, the firm may not be liable and to the extent permitted by the law does not accept liability for loss of client funds lodged in a bank or building society account in accordance with the SRA Accounts Rules 2011 as a result of the failure of any bank or building society in which funds are lodged. The Financial Services Compensation Scheme for client’s money explains this. Full details of this scheme can be found at www.scs.org.uk.
Should the bank collapse, our liability to you will be limited to the amount that can be recovered under the Financial Services Compensation Scheme (FSCS). By signing this letter and agreeing to these Terms and Conditions you are giving your consent to the disclosure to the FSCS of your details in order to pursue a claim.
The £80,000 FSCS limit applies to the individual client, so if you hold other personal monies in the same bank as our client account, the limit remains £80,000 in total.
If any term or provision in this agreement or any part of it shall be held to any extent to be illegal or unenforceable under an enactment or rule of law that term or provision of part shall to that extent be deemed not to form part of this agreement and the enforceability of the remainder of the agreement shall not be affected.
CONTRACTS (RIGHTS OF THIRD PARTIES ACT 1999
Only you and we are bound by the term of the agreement. It does not and is not intended to give any third party any right to enforce this agreement.
Any dispute or legal business will be determined by the law of England and Wales and will be subject to the exclusive jurisdiction of the English Courts.
GIFTS & LOANS
If you are obtaining a gift or loan from a third party, we require you to advise us of this gift at the outset of the transaction, even if you have already informed other parties to the transaction such as the lender. We will inform others to include your mortgage lender (where appropriate) that you are obtaining funding from a third party.
You will be required to complete and return to us our ‘Source of Funds’ form which is attached to these Terms. This is an ongoing obligation and we require you to let us know immediately of any changes. Any third party will be required to provide evidence as to their source of funds together with their certified identification. They should seek independent legal advice. We can only accept funds from our client’s bank account and will not accept funds from a third party. Please be aware of this.
SOURCE OF FUNDING
At the outset of all matters you will be requested to complete a ‘Source of Funds’ form. This must be completed and returned to this office prior to transferring any funds to our Firms’ accounts. We comply with Money Laundering Regulations and therefore please do not be offended if we ask for the following information:
- If the funds are to come from the sale of a property or other assets, we will require a copy of the Solicitors completion statement/confirmation of sale.
- If the money has come from your own savings, we will require a copy of your savings book/statement for the last six months showing that the savings are longstanding to your account. (If you have internet banking accounts, we will require any copy statements to show the where the money is invested and have your name clearly shown as the account holder, please contact us if you have any problems with this).
- If you are borrowing funds or being given a gift from a relative, we will require evidence from this person as to the origin of the funds, confirmation as to whether this is a repayable loan or a gift, along with a copy of their identification. We will also need to report this to your mortgage lender (if applicable). If you have any queries regarding this, please contact us.
The above are provided to you by way of example only and we will require documentary evidence from you even if the source of funds does not fall into one of the above categories. Please note that we are obliged to undertake our due diligence in respect of each client and their individual matters.
If a matter is ‘High Risk’ we are obliged under the Money Laundering legislation to perform ‘Enhanced Due Diligence’ enquiries where transactions are out of the ordinary such as: funds received from high risk jurisdictions; particularly complex transactions; high value transactions or if there are any affiliations to Politically Exposed Persons (PEP).
When accepting instructions to act on behalf of a limited company, we may require a Director and/or controlling shareholder to sign a form of personal guarantee in respect of the charges and expenses of this firm. If such a request is refused, we will be entitled to stop acting and to require immediate payment of our charges on an hourly basis and expenses as set out earlier.
ORDERS FOR COSTS
The Firm will also – advise the costs implications in any case. When your matter concludes, and in the event that you are successful, it may be that you will be entitled to the payment of your costs by some other party. However, it is rare for the system of ‘taxation’ of costs, as it is known, to result in the other party having to pay anything like the full amount of your costs. This is a complex subject which we shall be happy to explain further if you wish.
If you are successful and the costs of the matter fall to be paid by the other party, we will be able to claim interest on those costs to be paid as from the date on which the order was made. To the extent that any of our charges have not been asked for and paid on account we will retain this interest.
If the services we have provided relate to proceedings in a Court or Tribunal, you may additionally be entitled to have the amount of our fees checked or assessed under Rules of Court and regulations applying to the proceedings, or under the inherent jurisdiction of the Tribunal before which the proceedings have taken, or are taking place.
If all or part of our bill remains unpaid whilst you dispute it, the firm may be entitled to charge interest.
We hope that these Terms of Business addressyour immediate queries about the handling of your work.. Please do not hesitate to consult us if you require clarification of any part of these Terms of Business. In any event we strongly urge that you keep this and all subsequent letters and documents from us in a safe place for future reference.