Terms and Conditions
STANDARD TERMS AND CONDITIONS
LEGAL WORK WITHIN ENGLAND AND WALES
Horwich Farrelly (Horwich Farrelly/we/us/our) is committed to providing you with an excellent level of service. These standard terms and conditions are to be read in conjunction with the Engagement, and which together form the basis of the contract between you and Horwich Farrelly (Agreement).
2.REGULATORY STATUS AND JURISDICTION
2.1Horwich Farrelly is a general partnership. Its VAT registration number is 145591750 Like many other companies, Horwich Farrelly will continue to use the title ‘partner’ to describe both employees and other senior professionals employed by Horwich Farrelly with equivalent standing, experience and qualifications. However, the use of this title should not be seen as indicating that any relationship of partnership has arisen between Horwich Farrelly and you.
2.2For all regulated work, Horwich Farrelly is authorised and regulated by the Solicitors Regulation Authority (SRA) of England and Wales (SRA ID: 61877). The professional rules, relating to solicitors, can be accessed on the SRA website at https://www.sra.org.uk/solicitors/standards-regulations/
2.3Please note that your contract is with Horwich Farrelly and any work done for you by a partner, consultant or employee of Horwich Farrelly is given or done by that individual on behalf of Horwich Farrelly. No such individual will owe a personal duty of care to you. Unless instructed to the contrary, Horwich Farrelly shall be entitled to assume that any of your directors, employees, partners, consultants, agents or professional representatives who give instructions to Horwich Farrelly, are authorised to do so and that Horwich Farrelly may act upon such instructions.
2.4The contract is governed by and construed in accordance with English law. Any disputes or claims arising shall be subject to the exclusive jurisdiction of the courts of England and Wales.
We may use email or other electronic means to communicate with you. This carries with it the risk of, but not limited to, interception, inadvertent misdirection or non-delivery. It is your responsibility to carry out a virus check on any attachments received. All risks connected with sending commercially sensitive or other information relating to you and/or your business are borne by you and are your responsibility. If you do not accept this risk, you should notify us in writing that email is not an acceptable means of communication and also ensure that you do not use email to communicate with us.
4.1Unless otherwise agreed we shall charge you for work carried out as follows:
time spent – we charge hourly rates for any time spent dealing with your work. We use ten, six minute, units per hour and charge for each unit or part thereof;
routine letters, emails and telephone calls – each routine letter, email and telephone call is charged as a unit of one tenth of the hourly rate. Letters, emails and telephone calls that take longer than six minutes are charged on a time spent basis as per 4.1 (a);
disbursements – we charge for all disbursements incurred. Disbursements may include, for example, court fees, experts’ fees, search fees, stamp duty, registration fees and counsels’ fees;
for new individual clients, a one-time client setup fee of £50 will be charged. For all other clients (i.e. corporate, partnerships etc.) a one-time client setup fee of £150 will be charged;
expenses - we charge a fixed administration charge of £10 for financial transactions between £1,000 and £5,000, and £50 for all transactions above £5,000, plus travel and subsistence costs, courier fees, external copying and document production and other similar expenses, necessarily incurred by us, at cost or appropriate standard rates. We also charge for Data Rooms, the cost may be subject to change but will be approximately £250 per month, and for internal document production and copying at our current rates which will be provided on request; and
VAT – we add VAT to our fees, as appropriate, at the prevailing rate. Hourly rates quoted are exclusive of VAT.
4.2Hourly rates vary depending upon the seniority of the lawyer (or other adviser) and the type of work undertaken. In order to carry out work for you it may be necessary for different lawyers/advisers to be involved.
4.3Although, primarily, our fees are based on time spent, they may be adjusted by reference to certain factors such as value, urgency (including any need to carry out work outside our normal office hours) and the level of expertise involved.
4.4You may place a limit on the amount of fees which may be incurred without your prior approval. This may limit the work we will be able to do for you. If you wish to do so, please tell us in writing.
4.5Any estimates of fees are not intended to be fixed or binding.
4.6Our hourly rates are reviewed periodically and, therefore, may vary from time to time during your matter. We will advise you in writing in the event of any such change.
5.INVOICING AND PAYMENT
5.1We shall be entitled to invoice you at appropriate intervals, normally on a monthly basis. Unless otherwise agreed in writing, invoices are payable within thirty days of the date of the invoice, by you, and will be rendered in pounds sterling. If any invoice is not paid within 30 days of the date of the invoice any other outstanding invoices, or invoices issued to you, will become due for payment immediately.
5.2You agree that you are willing to accept delivery of bills sent in electronic form, including by email or fax to any email address we use to communicate with you. For any bill we deliver in this way, which relates to regulated services provided only, you waive your rights under s.69 of the Solicitors Act 1974 to have the invoice signed by a partner and delivered personally, sent by post or left at your address.
5.3We may require you to make a payment or payments on account of our fees, including disbursements.
5.4Invoices may be paid by electronic transfer, banker’s draft or telegraphic transfer. Cheques are also accepted though not preferred. Monies held by us, on your behalf, unless earmarked for other purposes, will be used to pay our invoices and disbursements. Details of our bank account, to which payment should be made, may be obtained from our accounts department via firstname.lastname@example.org. Any cheques should be made payable to Horwich Farrelly. We do not accept payment in cash either from clients direct or deposited with our bank.
5.5Interest may be charged on outstanding invoices that are not paid within thirty days of issuing (or other period agreed), from that date, at a rate of 4% above the base rate.
5.6You remain responsible for payment of invoices even if the Engagement does not proceed to completion or if a third party (including an insurer), who has agreed to pay or has been ordered to pay, fails to do so. Where we are instructed by more than one individual client, you will all be jointly and severally liable for the total amount of our fees.
5.7If you have a query about any invoice please contact Horwich Farrelly's accounts department via email@example.com. If the query is not resolved, and the query relates to regulated services, you may have the right to object to the invoice by applying to the court for an assessment of the invoice under Part III of the Solicitors Act 1974.
Interest will be calculated on your money held on account in relation to regulated services, in accordance with professional rules. It may be paid gross in which case you will need to pay any tax arising. You
agree that interest amounting to less than £20 will not be paid to you. A copy of our interest policy is available on request.
7.1In court cases, the court may order one party to make a contribution towards another party’s costs, either of the whole court case or just a part of it. It is important to understand that, even if another party is ordered to pay costs, you remain responsible for payment of our invoices within 30 days of the date of issue of the invoice. You can try to recover costs from another party. If they are legally aided, if they have little or no money or cannot be traced, it may not be possible to recover costs from them. In “small claims track” cases it is unusual for parties to be ordered to pay costs.
7.2If the court orders another party to pay your costs, the amount paid will rarely be 100% of the costs incurred. Whether you win or lose, instructing us to act for you in a court case will almost certainly cost you money. You agree to waive the provisions of section 74(3) of the Solicitors Act 1974.
7.3You may be ordered to pay costs to your opponent, particularly if you lose. That money is payable in addition to our invoices. Sometimes you can take out insurance cover (or obtain other funding) to pay another party's costs; please discuss this with us if you are interested. You may have legal expenses insurance to cover our invoices and another party's costs. You should check your existing insurance policies, including household, motor and any other major policy.
7.4We do not offer legal aid and we are not franchised by the Legal Services Commission. If you believe that you may be eligible for legal aid then we can direct you to a franchised firm.
8.SUSPENSION AND TERMINATION AND ABORTIVE TRANSACTIONS
8.1We reserve the right to suspend or terminate work for you:
if any invoice is not paid, in whole or part, when due; or
if a payment on account is not made when requested; or
if we consider that we are professionally or otherwise obliged to do so.
8.2Our contract with you, in respect of any Engagement, shall not be treated as a whole contract. If we:
suspend or terminate the Engagement; or
the Engagement becomes abortive
we will invoice you for work carried out up to the date of suspension, termination or when that Engagement becomes abortive.
We reserve the right to charge you for any work required to be undertaken as a consequence of suspension or termination (including removing our name from the court record, if appropriate). Any such
invoice shall be payable immediately.
9.FINANCIAL SERVICES AND INSURANCE DISTRIBUTION
9.1We are not authorised by the Financial Conduct Authority. We are, however, able in certain circumstances to offer a limited range of investment related services to clients because we are authorised and regulated by the Solicitors Regulation Authority. We do not give advice on the merits of entering into any particular investments. If you require advice on investments, we may refer you to someone who is authorised to give you investment advice. When providing our services we will assume that you have decided, or will decide, to negotiate and enter into any such transaction solely on the basis of your own evaluation of the investment and any advice which you may receive from a person authorised by the Financial Conduct Authority. We will not communicate, either to you or on your behalf to any other person, any invitation or inducement to engage in investment activity, and nothing we write or say should be construed as an invitation or inducement.
9.2We are not authorised by the Financial Conduct Authority. However, we are included on the register maintained by the Financial Conduct Authority so that we can carry on insurance distribution activity, which is broadly, the advising on, selling and administration of insurance contracts. This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Conduct Authority website at www.fca.org.uk/firms/financial-services-register. We operate as an ancillary insurance intermediary and do not manufacture insurance products. We are not an insurance company.
9.3If you are unhappy with any services you receive from us, please let us know. We will try to resolve any problem quickly and operate an internal complaints handling system to help us to resolve any problems, to raise a complaint please contact us at firstname.lastname@example.org. If for any reason we are unable to resolve the problem, the Legal Ombudsman provide complaints and redress schemes.
10.MONEY LAUNDERING REGULATIONS
10.1The law requires solicitors, as well as many other institutions, to obtain satisfactory evidence of the identity of clients and information concerning the source of client funds where the work undertaken is regulated. It is our firm’s policy to carry out such verification for all unregulated work too. If you are requested to do so, you must provide us with documents to verify your identity and must provide details concerning the source of your funds. If we are not given satisfactory information at the appropriate time, we will be obliged to terminate the contract.
10.3 If you are unable to come in to see us so that we can check your original identity documents, we can accept copies. However, in certain circumstances, those copies will need to be certified by a trusted third party such as a credit or financial institution, auditor, insolvency practitioner, external accountant, tax adviser or independent legal professional. They should write “I (name) a (profession) of (address) hereby certify this to be a true and exact copy of the original” and on the photo ID also add the words “and a true likeness of the bearer” on the copy document(s), and then sign and date it/them. They should include their name, occupation and contact details. Alternatively, you may be able to use an identification checking service offered by the Post Office. The Post Office will be able to tell you the procedure and cost involved.
10.4 We are obliged to keep records relating to your identity and a record of transactions relating to you for at least five years.
10.5Solicitors are under professional and legal obligations to keep the affairs of clients confidential in respect of regulated work. This obligation, however, is subject to a statutory exception: legislation on money laundering and terrorist financing has placed solicitors under a legal duty in certain circumstances to disclose information to the National Crime Agency. Where any member of Horwich Farrelly staff knows or suspects that a transaction, on behalf of a client, involves money laundering, the staff member may be required to make a money laundering disclosure. If this happens, we may be prohibited from informing you that a disclosure has been made or of the reasons for it.
10.6 You agree that we will not be liable for any costs, claims, penalties, damages or other losses incurred by you resulting from or in connection with the compliance by us with these professional and legal obligations
11.1Your details and any details of key individuals within your organisation may be entered into our database. We refer to this information as “personal data”. We will use this personal data, primarily, to provide you with legal services. You confirm that you are authorised to provide to us any personal data that we process on your behalf.
11.4 You have a right to see any of your personal information held by us and can request access to it by contacting us on email@example.com. If you believe that any of the personal information held by us may be incorrect, please let us know.
11.5 If, during the course of acting for you, you require us to process personal data on your behalf as your processor (for example, to upload documentation or information into an online data room during the course of a merger or acquisition) (Services), the following terms and conditions in clause 11 will apply.
11.6In these circumstances, references in this clause 11 to a Regulation are to regulation 2016/679/EC. References to an Article are to an Article of the Regulation. Capitalised terms in this clause have the
meaning defined by the Regulation.
(a)process the personal data in accordance with all applicable Data Protection Laws and Regulations;
(b)process the personal data within the European Economic Area and on your documented instructions only, including with regard to transfers of Personal Data to a third country or an international organisation;
(c)unless prohibited by law, notify you before Processing the Personal Data, if we are required by any law of the European Union or the law of one of the Member States of the European Union to act other than in accordance with your instructions; or if, in our opinion, any of your instructions infringes the Regulation or other Union or Member State data protection provisions;
(d)obtain your prior written authorisation before engaging another Data Processor and shall respect the conditions referred to in paragraphs 2 and 4 of Article 28 for any such engagement. Subject to the limitation on liability in clause 16, we shall be liable for the acts and omissions of our Sub-processors, and we shall ensure that the Sub-processor contract (as it relates to the Processing of Personal Data) is on terms which are substantially the same as, and in any case no less onerous than, the terms set out in this clause 11;
(e)comply with clause 12 (confidentiality) in respect of such Processing, and the Personal Data shall be "Confidential Information";
(f)take all measures required pursuant to Article 32;
(g)taking into account the nature of the Processing, assist you at your cost by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond
to requests for exercising the Data Subject's rights laid down in Chapter III of the Regulation;
(h)provide reasonable assistance to you on your written request and at your cost in ensuring compliance with your obligations pursuant to Articles 32 to 36, taking into account the nature of Processing
and the information available to us;
(i)at your choice and at your cost, delete or return all the Personal Data to you after the end of the provision of the Services relating to the Processing, and delete existing copies unless Union or Member State law or regulation requires storage of the Personal Data;
(j)at your cost and following written agreement as to the details make available to you all information necessary to demonstrate compliance with the obligations laid down in Article 28; and allow for and
contribute to audits, including inspections, conducted by you or another auditor mandated by you, to the extent required by Article 28;
(k)in the event of an actual or suspected Personal Data Breach notify you without undue delay and provide reasonable and timely cooperation with your investigation into the Personal Data Breach; and
unless required by binding law, or under a subpoena, court order or similar legal document issued by a court or regulatory authority, not disclose the Personal Data Breach to anyone other than you without first obtaining your prior written consent; and
(l)not transfer, publish, disclose, divulge or otherwise permit access to Personal Data by recipients (including Sub-processors) in jurisdictions outside of the European Economic Area unless you provide
your written consent.
11.8 You agree that you have sole responsibility for and shall ensure that:
you have all necessary rights to authorise us and our Sub-processors to Process Personal Data in accordance with this agreement and the Regulation and other applicable data protection laws;
you have provided adequate fair processing notices to, and obtained all necessary consents from all Data Subjects to enable us and our Sub-processors to Process the Personal Data for the purposes of providing our services to you and performing our obligations and exercising our rights as set out in this agreement;
you provide us with only Personal Data that is adequate, readable, relevant, and limited to what is necessary for the lawful purposes for which they are processed;
all Personal Data provided to us is accurate and where necessary, kept up to date; and
your instructions to us relating to Processing of Personal Data shall not breach, and will not put either party in breach of, any applicable law.
CONFIDENTIALITY, DISCLOSURE AND CONFLICTS OF INTEREST
12.1We owe you a duty of confidentiality but may be required to make exceptional disclosure as required by statute, court order, regulation, the SRA or as set out below.
12.2 We may hold confidential information about a former, current or prospective client which might reasonably be expected to be material to an Engagement. In those circumstances, we owe you no duty to
disclose such information to you.
12.3 Where we hold confidential information about you, we shall not be precluded from acting or continuing to act for another client or prospective client where that information might reasonably be expected to be
material to it and it has an adverse interest to you provided that it is reasonable for us to act. In those circumstances, all proper steps will be taken to ensure that confidential information about you is
safeguarded, protected and not disclosed including, if appropriate, by the establishment of internal information barriers, in accordance with professional regulations.
12.4 You agree that we may disclose our files to regulatory bodies, our auditors, courts or other bodies working with us, as appropriate, in the exercise of their powers or in order to carry out work for you.
12.5If we are required, for any reason (whether during the course of an Engagement or after it has terminated), compulsorily to disclose documents or to give information, orally or in writing, relating to a matter or
your affairs pursuant to a court order, notice or demand served by an entity or person with the authority to compel such disclosure, then we shall comply. If any documents or information are subject to legal professional privilege, then, if possible, we will let you know and advise you of the opportunity to claim privilege. Unless you confirm any claim to privilege, we reserve the right to treat it as waived. Should you decide to claim privilege, we shall be entitled to charge you for consequential work, including any disbursements.
RETENTION AND STORAGE OF DOCUMENTS
13.1We are entitled to keep all your papers and documents while money is owing to us. This is known as a lien. Upon payment, in full, we will return them to you at your request. We will not destroy documents you ask us to deposit in safe custody. Presently no charge is made for storage but we reserve the right to do so upon reasonable notice to you.
INTELLECTUAL PROPERTY RIGHTS
14.1We retain all copyright and other intellectual property rights in all materials and know-how developed or created by us, either before or during the course of carrying out any work for you, although you may
freely distribute copies of these materials within your own organisation for the purposes of the Engagement.
15.1We are committed to providing high quality legal advice and client care. If you are unhappy about any aspect of the service you have received or about an invoice please contact us by email at firstname.lastname@example.org or by post to the Head of Risk & Assurance at Horwich Farrelly, Alexander House, Talbot Road, Old Trafford, Manchester M16 0SP. We have a documented procedure in place, detailing how we handle complaints, that is available on request. If you are not satisfied with our handling of your complaint in relation to a regulated service provided by us only, you can ask the Legal Ombudsman at PO Box 6806, Wolverhampton, WV1 9WJ (telephone 0300 5550333 or www.legalombudsman.org.uk) to consider the complaint. Usually, you will need to bring a complaint to the Legal Ombudsman within six years from the date of act/omission, or three years from the date you should reasonably have known there were grounds for complaint (complaints will not be accepted where the act or date of awareness pre-dates October 2010) or within six months of receiving a final written response from us about your complaint. The Legal Ombudsman will be able to tell you if you are entitled to complain. You may have the right to object to an invoice by applying to the court for an assessment of the invoice under part III of the Solicitors Act 1974.
15.2 If you are not entitled to bring a complaint to the Legal Ombudsman and, in the unlikely event of an unresolved issue arising in connection with our services, which you regard as a complaint, you may contact the Head of Risk & Assurance via email@example.com.
15.3A copy of our complaints procedure will be provided on request.
15.4 Where outstanding monies are due to Horwich Farrelly solicitors and you have made a complaint, all monies due to Horwich Farrelly solicitors will be recovered in the normal way separate to any complaint you may have and in accordance with our terms and conditions of business. In the event your complaint is upheld (either through our complaint’s procedure or via the Legal Ombudsman), any necessary refund will be made upon conclusion of your complaint.
16.1We hold professional indemnity insurance which, in accordance with the Solicitors Indemnity Insurance Rules, provides a compulsory minimum level of cover of £3 million. Our primary professional indemnity
insurance is provided by Axis Speciality Europe Limited, Fourth Floor, Plantation Place South, 60 Great Tower Street, London, EC3R 5AZ. Under the aforementioned primary cover the jurisdiction and territorial coverage of our insurance is worldwide, complying with the terms and conditions required by the Solicitors Regulation Authority. Our combined level of cover is £35,000,000.
16.2If you incur any expenses, damages, losses or liabilities whatsoever (including legal fees), in connection with or arising from the provision of our services, whether in contract, tort or otherwise and it is found that we are liable to you, as a result, then our total aggregate liability to you shall, in no circumstances, exceed the sum of £3 million.
RIGHTS OF THIRD PARTIES
17.1.No third party has the right to enforce any of the terms set out in the Engagement under the Contracts (Rights of Third Parties) Act 1999. This does not affect any other right or remedy available to a third
EQUALITY AND DIVERSITY
18.1.The firm is committed to promoting equality and diversity in all of its dealings with clients, third parties and employees, and is required to produce a written equality and diversity policy. Please contact us if
you would like us to send you a copy of that equality and diversity policy.
19.1Adviser – the word adviser refers to non-lawyers, e.g. tax adviser.
19.2 Disbursement – a disbursement is a payment that we make to a third party on your behalf.
19.3 Engagement – an engagement is a particular piece of work that we do for you. The scope of the work to be carried out will usually be set out in the Engagement.
19.4Lawyer – the word lawyer refers to solicitors, legal executives, trainee solicitors and paralegals.
19.5 Regulated services are as defined in Section 12 of the Legal Services Act 2007 (http://www.legislation.gov.uk/ ukpga/2007/29/section/12.
19.6 Non-regulated work relates to any services provided which fall outside the scope of the SRA regulation referred to above. This work does not have the protection and regulation of the SRA.
FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA)
20.1The nature of your instructions to this firm mean that you, trustees, beneficiaries and others including this firm and those acting for you and with you, either as a lawyer or trustee, are obligated to fulfil all
(FATCA) reporting obligations which may arise from time to time. In the event we will not be responsible for any reporting obligations whilst acting for you, we will advise you in writing.
20.2Under the above legislation we are obliged to register and report certain trust activities to both the UK and US tax authorities. You and others connected with your matter must also report to this firm any changes in your current or future circumstances which may result in a change of US citizenship. In the event that your circumstances or anyone you know change, you must advise us immediately. An example of a change in circumstances could be that a relative marries a US citizen. In the event this were to happen you must advise us straight away.
20.3 At the outset of this matter you must advise us if you or any one at all related to you or this matter are or may be a US citizen or have any connection with the US whatsoever. Even where you may be unsure, you must advise us of any information you may have.’
CONSUMER CONTRACTS REGULATIONS 2013
21.1This section is applicable to individuals only.
21.2It applies to distance and off-premises contracts and includes information about your cancellation rights.
21.3 You have the right to cancel your contract within 14 days without giving any reason. The cancellation period will expire after 14 days from the day you received our Client Care Letter.
21.4 To exercise the right to cancel, you must inform us of your decision to cancel your contract by a clear statement (e.g. a letter sent by post, fax or e-mail).
21.5If you cancel this contract:
and you had requested us to begin the performance of services during the cancellation period, you shall pay us an amount which is in proportion to what has been performed until receipt of your cancellation of your contract; or
(b) if you had not asked us to commence delivery of the services we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you
chose a type of delivery other than the least expensive type of standard delivery offered by us). We will make the reimbursement without undue delay, and not later than 14 days after the day on which we are informed about your decision to cancel your contract. Our full contact details are: Horwich Farrelly, Alexander House, Talbot Road, Manchester M16 0SP T: 03300 240 711 F: 03300 240 712
COMPLIANCE WITH REGULATORY REQUIREMENTS
22.1 In providing services to you we will take the necessary steps to comply with our Regulatory Requirements, even if to do so is inconsistent with our Terms.
22.2 We are unable to accept an instruction if there is a conflict of interest or a significant risk of a conflict as prescribed by our Regulatory Requirements and/or the requirements of our regulators.
22.3 If you are or become aware of an actual or potential conflict you must inform us without delay.
22.4 There are certain limited exceptions where we may be able to act for two or more clients; where this is permitted pursuant to our Regulatory Requirements we will not act unless we have the consent of all parties.
22.5 Neither you nor we shall undertake any act that would cause the other party or its affiliates to be in violation of any anti-bribery and corruptioulations of equivalent or similar nature in any other jurisdiction.
SOLICITATION OF SERVICES
23.1 You agree that you will not directly or indirectly solicit the services of any personnel of Horwich Farrelly without prior written consent from us during the term of the Agreement or for the period of twelve months after the expiration or termination of the Agreement.
TERMINATION OF THIS ENGAGEMENT
24.1 You may end your instructions at any time by giving us notice in writing. We can keep all your papers and documents while our charges or disbursements are outstanding.
24.2 We can only decide to stop acting for you with good reason and we must give you reasonable notice.
24.3 If you or we decide that we should stop acting for you, you are liable to pay our charges up until that point unless 21.5 (b) applies. These are calculated on the basis set out in our letter confirming your instructions.
24.4 Where your fees are paid under Legal Expenses Insurance, you should contact your insurer regarding any personal liability for fees if you wish to change solicitor