Terms of Business
1.1 This note sets out the terms (Terms) upon which Gentle Mathias LLP (we, us, the Firm) provide legal services. The Terms apply to all business between you and us unless we have entered into a separate written agreement with you which specifically excludes or varies some or all of the Terms. Please note for the avoidance of doubt that:
1.1.1 by instructing us to undertake work on your behalf you are contracting with the Firm only (and not with any individual member, employee or consultant of the Firm) and you agree that should you have to make any claim against us that claim may only be brought against the Firm (and no member, employee or consultant or person formerly occupying any such position shall have any liability in respect of such claim);
1.1.2 should you instruct us to provide (and we commence providing) services to you at a time when you have not signed and returned a copy of the Terms, your instructions will constitute acceptance of the Terms. We will nevertheless be entitled to require that you sign and return the Terms at the earliest opportunity and failure to do so shall be grounds for us to terminate our retainer with you; and
1.1.3 in common with other regulated organisations we may be obliged to undertake enquiries to ascertain and verify the identity of our client (or its ultimate beneficial owner) and to have investigated (and obtained evidence of) the source of monies to be used by you in any transaction. We will discuss the materials that we need you to provide to us with you at the outset of the matter and from time to time thereafter. Delay or failure by you to provide such materials promptly where required may impact adversely on our ability to provide our services to you and shall be grounds for us to terminate our retainer with you.
1.2 Please contact us if you have any queries regarding the Terms having read them.
2. General basis for acceptance of instructions
2.1 Your requests to us for work to be done are called ‘instructions’. Where our services are supplied to two or more persons then those persons’ liability for our costs is joint and several; each will be liable for any amounts due to us for those services.
2.2 Instructions will be accepted or declined in accordance with the Solicitors’ Practice Rules and Code of Conduct from time to time in force.
2.3 We will be free to use such members of our staff, consultants, agents or barristers in connection with your business as we consider appropriate. Unless you instruct us specifically to the contrary in writing you authorise us to take all measures and to incur such reasonable expenses as we may believe appropriate to protect your interests.
2.4 Any reference to a ‘Partner’ in relation to the Firm in the Terms means a member, consultant or employee of the Firm with equivalent standing or qualifications and a Partner will always be one of our members. Details of the Partner with overall responsibility for your affairs and, if different, the person(s) with day-to-day conduct of your instructions are set out in the accompanying letter, but if you are in any doubt about this please feel free to ask.
2.5 Our advice is given to you and may not be disclosed to any third party without our prior written consent.
2.6 Generally our services will not include advice on tax-related issues nor the tax implications of any transaction nor on pension or pension-related issues unless expressly agreed by us in writing.
3. Client monies and interest
3.1 Unless we notify you to the contrary, and subject to any alternative arrangement agreed with you, client money held by us on your behalf will be deposited in the Firm’s client account with our bankers from time to time (presently Lloyds Bank plc).
3.2 We do not guarantee or underwrite the security of client money that has been deposited in a client account with a bank in accordance with the SRA Accounts Rules 2011 (as amended), or otherwise deposited with a bank in accordance with arrangements agreed with you. You should be aware that, unless we have failed to comply with those Rules, we do not consider that we have (and we disclaim) any liability to repay client money lost through a banking failure.
3.3 Please note that:
3.3.1 there is a £85,000 Financial Services Compensation Scheme (FSCS) limit which applies to you if you are an individual and so if you hold other personal monies yourself in the same deposit taking institution as our client account the limit remains £85,000 in total;
3.3.2 some deposit taking institutions have several brands i.e. where the same institution is trading under different names. You should check either with your deposit taking institution, the Financial Conduct Authority or a financial adviser for more information; and
3.3.3 online fraud is a REAL threat. Our bank details will NOT change during your transaction and are set out on page 10. PLEASE DO NOT TRANSFER ANY MONEY TO US WITHOUT CONFIRMING OUR BANK DETAILS WITH US BY TELEPHONE FIRST. We will not accept responsibility if you transfer money into an incorrect bank account.
3.4 By signing the Terms you give your consent for the disclosure to FSCS of your details in the event of a deposit taking institution failure.
3.5 Where interest is payable on monies held in our client account, this will usually be credited to you at the conclusion of the matter save that (a) we may pay interest at appropriate intervals if our work for you relates to an ongoing matter and (b) interest will not be payable if the sum involved is de minimis (i.e. less than £30).
3.6 We will normally retain interest on monies we hold as stakeholders as a reasonable charge but if the sum is substantial and held for an extended period we shall act fairly and reasonably as to the amount to be credited to you.
4. Costs and disbursements
4.1 We are willing to consider various ways of charging for our services, which may include fees based on the percentage of a transaction, fixed fees, capped fees, retainer fees or fees calculated by reference to the time we spend on your matter. Unless we have specified an alternative basis of charging in the accompanying letter the basis of our charges will be by reference to time spent on your matter in accordance with our fee rate card (a copy of which is attached, and further copies of which are available on request).
4.2 Insofar as possible we will, upon accepting instructions, give you an estimate of the likely costs involved and may revise that estimate from time to time. Where no estimate is given (for example when we cannot reasonably calculate it) the final cost will be based upon the time spent on the matter as set out below. Any estimate given is not binding on us and is a guide only. There may be many factors outside our control (for example the acts or failures of third parties). If possible, we will also give you an estimate of disbursements that are likely to be incurred in connection with your instructions.
4.3 Our costs take into account our incidental disbursements such as normal postage and telephone charges. We will charge you for any other expenses we incur in connection with your business including bank charges, photocopying, couriers and any exceptional telephone and/or exceptional fax costs.
4.4 Unless otherwise indicated any estimate of costs or disbursements is exclusive of Value Added Tax which will be payable at the current rate where applicable. Our VAT registration number is 242 0954 79.
4.5 Time spent on your matter, routine letters, faxes, e-mails and routine telephone calls (both in and out) are charged at 1/10th of the hourly rate. Please note that the manner in which you respond to our requests for information and instructions has a bearing on the amount of time we spend on your matter, i.e. the timely provision may help us to spend less time on your matter than would otherwise be the case.
4.6 In particularly high value, highly sensitive, high risk, very urgent matters our charges may be increased to reflect these considerations.
4.7 In cases where a third party is to be responsible for payment of some or all of our fees and/or disbursements, we only accept your instructions on the basis that you will, on demand, meet any liability for any such fees and/or disbursements that have not been paid by the due date for payment.
4.8 Some of our fee earners may be remunerated based upon the amount of their billings.
4.9 You have the right to object to the amount of the bill and apply for an assessment under Part III of the Solicitors’ Act 1974.
4.10 Section 64 of the Solicitors Act 1974 gives you the right to require us to deliver a detailed bill for contentious matters provided certain conditions are met.
5. Payment of costs and disbursements
5.1 You agree that you will from time to time on demand make payments to us for and on account of costs or disbursements incurred or to be incurred in connection with your instructions.
5.2 Any account or request for payment rendered by us is due for payment on delivery and interest will be charged at the Statutory Rate (presently 8% per annum) from time to time on any balance outstanding for more than 7 days or on any disbursements paid out on your behalf if we are not in funds. You will also be liable to make payments under the Late Payments of Commercial Debts (Interest) Act 1998.
5.3 We may from time to time deduct sums due to us from any monies held on account for you.
5.4 We may from time to time invoice you on account of the final bill for costs and disbursements. Such invoices may be sent periodically or at any natural break in the instructions.
5.5 Our policy is normally only to accept cash payments to a maximum of £750. If you deposit cash directly with our bank in excess of this limit, please identify the source and our reference otherwise we may charge you for any additional checks we decide are necessary to prove the source of the funds. Where we have to pay money to you, it will be paid to you by cheque or bank transfer. It will not be paid in cash or (unless we receive specific written instructions from you) to any third party.
6. Costs and disbursements in contentious matters
6.1 It is important you understand that you will be liable for paying our costs and disbursements. Even if you are successful your opponent is unlikely to be ordered to pay all our costs and disbursements and/or these may not be recovered from your opponent; in that event you will be liable to pay the balance of our costs and disbursements. If your opponent is funded by the Legal Services Commission, you may not get back any of your costs and disbursements, even if you win the case.
6.2 The expenses which are likely to be incurred (in relation to our own costs) include barristers’ fees, court fees, experts’ fees and search fees.
6.3 If you succeed it may be necessary to draft an itemized Bill of Costs; the cost of preparing this is payable by you but all or part of it may be recoverable from the paying party. If the Court orders your opponent to pay some or all of your costs and disbursements, interest may be claimable on them from your opponent from the date of the Court Order. We will account to you for such interest to the extent that you have paid our invoices or made payments on account, but otherwise we shall be entitled to retain that interest.
6.4 You will also be responsible for paying the costs and disbursements of seeking to recover any costs and disbursements that the Court orders your opponent to pay.
6.5 In some circumstances, the Court may order you to pay your opponent’s costs and disbursements (and is likely to if you lose the case). The Court may also order you to pay your opponent’s costs and disbursements if you do not succeed on an issue in a preliminary hearing. Such costs and disbursements may be payable immediately and are usually ordered to be paid within 14 days.
6.6 Our costs and disbursements and your liability for your opponent’s costs and disbursements may be covered by insurance. We will discuss this with you if you wish us to and also whether it would be possible/advisable for you to have insurance to meet the other party’s costs and disbursements and expenses.
7. Other methods of financing contentious proceedings
7.1 Whenever appropriate, we will discuss with you whether funding from the Legal Services Commission is available for a matter and whether you qualify for it. Please note that we are not able to act for clients who qualify for and wish to be funded by the Legal Services Commission.
7.2 Sometimes we may be prepared to enter into a Conditional Fee Arrangement (CFA) and if so the Terms will apply save to the extent inconsistent with any provision of the CFA (in which event that provision will prevail). There are various funding schemes available, including After the Event, insurance which we can discuss with you if appropriate. Should a third party be prepared to fund the costs you should let us know.
7.3 You may have insurance cover for private legal expenses. The responsibility for reviewing your insurance policies (such as your home contents or motor insurance policies) is yours, but if you have any policies you think may be relevant and are in doubt as to whether a claim can be made under them please contact the Partner with overall responsibility for your particular matter to discuss this further.
8.1 We will be free to refuse to act or continue acting in accordance with the Solicitors’ Practice Rules and Code of Conduct in force from time to time and in particular if:
8.1.1 we are or may be in breach of the law or the principles of professional conduct by accepting or continuing to accept instructions; or
8.1.2 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
8.1.3 any account rendered by us in respect of fees or disbursements has not been paid within a 7 day period (or immediately in the case of an urgent matter); or
8.1.4 any request for money on account of costs or disbursements incurred or to be incurred has not been complied with within 7 days (or immediately in the case of an urgent matter).
9. Consequences of termination
9.1 If our instructions are terminated for any reason then we may, in addition to any other remedy available to us:
9.1.1 retain any deeds, securities or other documents under our control; and/or
9.1.2 retain any monies we may be holding for you
until payment has been made of all costs, disbursements, VAT and interest which (a) are outstanding relating to the matter in which we were acting and (b) arising in connection with the termination of our retainer (and we shall be entitled to charge you at our normal charging rates in respect of any action taken to recover monies due to us).
10. Continuing obligations
10.1 At the conclusion of our retainer we will have no continuing obligation to advise you of changes in the law which may affect advice previously given nor to advise you of future key dates (e.g. limitation periods, rent reviews, etc.).
11.1 If you have a problem about any aspect of our service (including one relating to our costs) it should be raised immediately with the Partner dealing with your matter or, if you prefer, in writing to the Complaints Partner.
11.2 Any justified complaint will be remedied promptly, if possible, and investigated further if necessary. You have the right to take independent advice from another solicitor in any case where you have, or may have, a complaint against the firm. Details of our Complaints Policy and Procedure are available here.
12. Hours of business
Our normal office hours are 9.30am to 5.30pm, Monday to Friday.
13. Financial Services
13.1 The Firm is not authorised by the Financial Conduct Authority (FCA) save to undertake insurance mediation activity (i.e. 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 (SRA). The register can be accessed via the FCA website at: www.fca.org.uk/register/home.do
13.2 If during this transaction you need advice on investments, we may have to refer you to someone who is authorized by the FCA, as we are not. However, as we are regulated by the SRA, we may be able to provide certain limited investment services where these are closely linked to the legal work we are doing for you.
14.1 In performing our services we are likely to send messages and documents to you and others by email. Like other means of communication, email is not entirely risk-free and carries with it the possibility (among other things) of corruption, inadvertent misdirection, non-delivery of confidential material, inadvertent deletion or unauthorized access.
14.2 We aim to retain electronic copies of all material emails and other documents relating to your matter.
15. Confidentiality & data protection
15.1 Except as explained below, we will maintain our professional and legal obligations of confidentiality in relation to the work we undertake for you and in relation to information which is confidential to you which comes into our possession in the course of undertaking that work. However, provided that any such disclosures are limited to a ‘need to know’ basis, we may make disclosures of information which is confidential to you:
15.1.1 for the purpose of acting for you including, without limitation, disclosures to your other advisers or to third parties involved in the work we are undertaking for you;
15.1.2 to our auditors for the purposes of the audit of our accounts;
15.1.3 to our professional indemnity insurers if, in relation to your matter, it becomes necessary under the terms of our professional indemnity insurance to notify circumstances which may give rise to a claim against us (this may include communications which would ordinarily be protected by legal professional privilege);
15.1.4 as required by law or by any regulatory authority to which we are subject;
15.1.5 for the purposes of complying with our obligations under anti-money laundering or counter-terrorist financing legislation for the time being in force; or
15.1.6 for the purpose of outsourcing some of our services.
15.2 We may wish to include documents created or received in the course of providing our services in relation to your matter in databases that we maintain and use them for the purposes of the Firm’s business. Those databases may comprise hardcopy documents stored and retrieved manually, or documents stored and retrieved electronically on disk or other electronic medium. Your acceptance of the Terms constitutes your consent for us to include such documents in our databases and use them for the purposes of the Firm’s business.
15.3 We use the information you provide (including personal data) primarily for the provision of legal services to you, but also for related purposes including creating and maintaining client records, issuing invoices, collecting payments and debts, analysis for the purpose of practice management, statutory returns, insurance proposals and legal and regulatory compliance. We may share the information you provide with third parties to perform certain support and legal services on our behalf in relation to your matter. For further details please refer to our Privacy Notice. Your acceptance of the Terms constitutes your consent for us to use your information and personal data in this way.
15.4 Any queries about data processing should be referred to the Firm’s Data Manager as follows:
• email to firstname.lastname@example.org
• by post to the Data Manager, Gentle Mathias LLP, 59 Charlotte Street, London W1T 4PE ENGLAND
16. Limitation of Liability
16.1 We will use appropriate skill and care in providing our services in accordance with applicable professional standards.
16.2 If you instruct us in relation to matters that involve other service providers (including but not limited to other professional firms) who limit their liability in any way then, our own liability will be limited to the lesser of (i) what our liability would have been had the other service providers not so limited their liability, and (ii) any specific limitation of liability that we have agreed with you.
16.3 We will not be liable to you for any loss or damage which you may suffer or incur as a result of our complying with our reporting obligations under any anti-money laundering or counter-terrorist financing legislation for the time being in force including, without limitation, as a result of any delay to any stage of a matter or as a result of exchange of contracts or completion being prohibited by the National Crime Agency.
16.4 Our total liability, whether arising in contract, tort (including negligence), under statute or otherwise howsoever for any claim or series of connected claims arising in connection with this or any other matter shall in no circumstances exceed the sum of £7,500,000 (seven million and five hundred thousand pounds). This shall be our aggregate liability to all parties where we are retained by more than one party. We shall not be liable for any special, indirect and/or incidental losses and/or damage and/or consequential losses and/or for any delay or failure caused by circumstances beyond our reasonable control.
16.5 We can only limit our liability to the extent the law allows. In particular, we cannot limit our liability for death or personal injury caused by our negligence.
16.6 This paragraph survives the termination of any engagement with you, for whatever reason.
17.1 The Terms shall not affect any provision of the general law or professional standards applicable to the relationship between us and you as Solicitor and client.
17.2 Any notice, request for payment or invoice to be given by us may be given to you by fax, letter or e-mail at your last address known to us or other address where we normally communicate with you.
17.3 At the conclusion of our retainer we are entitled to keep all your documents while there is money owing to us for our charges and expenses. We will keep any hardcopy file of documents (except for any of your documents which are returned to you) for no less than 6 years, on the understanding that we have your authority to destroy it 6 years after the date of the final Bill we send you for your matter. We will not destroy documents you ask us in writing to deposit in safe custody.
17.4 If we retrieve documents from storage in relation to continuing or new instructions to act in connection with your affairs, we will not charge for such retrieval. Otherwise we may make a charge based on time spent for delivering 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 the instructions given by you or on your behalf.
17.5 We shall be entitled to vary our hourly rates and any of the Terms upon 7 days prior written notice to you and you will then be bound by them. If you do not accept our new rates or Terms we reserve the right to terminate our arrangements with you.
17.6 Save that our agreement with you is capable of assignment by us to any successor practice of the Firm our agreement with you is personal between you and us and is not intended to confer any rights on any third parties pursuant to the Contracts (Rights of Third Parties) Act 1999 except as expressly referred to in the Terms.
17.7 The Terms are governed by English law and any disputes arising in connection with the Terms are subject to the exclusive jurisdiction of the English Courts in London to which we both agree to submit.