Terms of Business – Sherwins Limited trading as Shergroup Legal
1. INTRODUCTION
1.1 For the purpose of these Terms “we” “our” “us” “the “Company” or “the firm” means Sherwins Limited trading as Shergroup Legal, which registered and incorporated in England and Wales with Company Registration Number 06668957 whose registered office is at Prospect House, 28 Great Melton Road, Hethersett, Norwich, Norfolk, NR9 3AB. Persons referred to in these Terms as “principals” are members of that Company.
1.2 These Terms, together with the engagement letter provided, set out the basis on which we will provide our services, and they should be read together. In the event of any inconsistency between the letter and these Terms, the former shall prevail.
1.3 The Terms including the limits on our liability in clause 15 will apply to all services rendered by us to you from time to time unless we have entered into a specific written agreement which expressly excludes or modifies them in whole or in part.
1.4 Any business conducted with us is solely with the Company and the Company has sole legal liability for the work done for you and for any act or omission in the course of that work.
1.5 No member, partner, principal, employee, associate or consultant of the Company will have any personal liability for work undertaken for you. If a member, partner, principal, employee, associate or consultant signs in his or her own name any letter or other document in the course of carrying out that work it does not mean he or she is assuming any personal legal liability for that letter or document.
2. GENERAL BASIS FOR ACCEPTANCE OF INSTRUCTIONS
2.1 Instructions will be accepted or declined in accordance with the Solicitors’ Code of Conduct 2007, as it may from time to time be amended.
2.2 We will be free to use such members of our staff or agents in connection with your case as we consider to be appropriate and in your best interests.
2.3 We will review your matter regularly.
2.4 We will advise you of any changes in the law.
2.5 We will advise you of any circumstances and risks of which we are aware or consider to be reasonably foreseeable that could affect the outcome of your matter.
2.6 We will update you on whether the likely outcomes still justify the likely costs and risks associated with your matter whenever there is a material change in circumstances.
2.7 We will update you on the likely timescales for each stage of this matter and any important changes in those estimates.
2.8 We will continue to review whether there are alternative methods by which your matter can be funded.
2.9 You will notify us in writing if communications are to be sent to you other than at the postal address, fax number or email address you have provided, and whether particular advice is to remain undisclosed to other persons associated with you. Unless you tell us not to do so we may communicate to you by email and do not accept responsibility for any breach of confidentiality which may occur, whether because of a fault or omission on your part or by any of your agents or the result of any action of a third party.
2.10 You will provide us with a full description of the services you require and a statement of your objectives.
2.11 You will provide us with sufficient information to enable us to carry out our work. This will include relevant documents, notes, agreements, emails, correspondence and personal statements.
2.12 We will not have any obligation to verify or check the accuracy of any information you provide to us unless it is specifically agreed in writing that we should do so.
2.13 Where our services are supplied to two or more persons then your liability for our costs is joint and several; you will each be liable for any amounts due to us. If a third party or other source is to be responsible, this must be agreed with us in writing before work is undertaken. 4
2.14 It is our practice to check for conflicts of interest in appropriate cases. 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.
2.15 If we are instructed to act for a third party, in circumstances where we hold information which is confidential to you which would be material and adverse to that third party, we may accept that party’s instructions provided that we put in place such information barrier as may be suitable under Rule 4 of the Solicitors’ Code of Conduct 2007 (as the same may from time to time be amended) to prevent the
passage of that information to the third party. Your consent to our proceeding in that manner is deemed to have been explicitly given by your agreeing to these Terms.
2.16 Your papers and documents may be reviewed by external auditors.
3. TAX ADVICE
Unless our retainer is specifically to advise you on tax matters, we will not advise on tax issues and we will assume that you are obtaining separate advice on them.
4. COSTS AND PAYMENTS MADE ON YOUR BEHALF
4.1 Except where we agree a fixed or scale fee, our charges are usually (but please see paragraph 4.5 below) based on the time we spend dealing with your instructions.
4.2 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.
4.3 All letters, e-mails and telephone calls (made or received) will be charged on a time basis. We record time in minimum units of six minutes. In addition, VAT will be added to our charges at the current rate from time to time.
4.4 On 1 April 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.
4.5 In addition to the time charges referred to in paragraph 4.1 our costs will also be assessed by reference to other factors including:
4.5.1 the complexity of the matter;
4.5.2 the skill, labour, specialised knowledge and responsibility involved;
4.5.3 the number and importance of documents prepared or considered;
4.5.4 the amount or value of any money or property involved; and
4.5.5 the importance of the matter to you.
4.6 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 payments to be made by us on your behalf. 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.
4.7 Our costs take into account our incidental expenses paid on your behalf 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. We will add a handling charge to the cost of bank transfers to cover the time of Accounts staff. 4.8 Our current hourly charging rates for fee-earners are as set out in the accompanying engagement letter.
4.9 Unless otherwise agreed, our charges will be payable whether or not any particular matter proceeds to completion.
4.10 Unless we have been retained by you on a conditional fee basis, when our costs will be governed by a separate fee agreement, abortive matters and transactions will be charged on a time cost basis up to but not exceeding the level of any estimate given. We may however in our absolute discretion agree to accept less than such costs.
5. PAYMENT
5.1 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.
5.2 We may from time to time deduct sums due to us from monies in hand on your account.
5.3 Subject to what we agree with you in our engagement letter, we will be entitled to invoice you for our costs on a monthly basis.
5.4 If you have any query about your invoice, including the basis on which it has been calculated, you should contact the principal 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.
5.5 You are entitled within one month (or with the leave of the Court after one month but within 12 months) of the delivery of any bill of costs to have that bill checked by an officer of the Court by a procedure known as an assessment.
6. CLIENT MONIES
6.1 We may, from time to time, hold money on your behalf. Such money will be held in trust in a general client bank account, segregated from our own funds. The account will be operated, and all funds dealt with, in accordance with the Solicitors’ Accounts Rules 2011.
6.2 Payment of interest to clients is made in accordance with the provisions of Rule 22 Solicitors’ Accounts Rules 2011.
6.3 Interest will only be paid to you where the amount of interest that would be earned on the balances held on your behalf exceeds £50.00. Any such interest will be calculated using the prevailing rate applied by Barclays Bank PLC for small deposits subject to a minimum period of usually 1 week, depending upon the value of the deposit.
6.4 The obligation to pay interest depends upon both the size of the sum and period for which the funds are held by us.
6.5 Although we shall at all times strive to ensure that our financial dealings with you are conducted with the utmost efficiency and accuracy, there may be rare occasions when on closing a file a credit balance is discovered. We will of course immediately account to you in relation thereto but if having made all reasonable efforts to contact you we are unable to do so will seek authority from the Law Society to pay such sum to a charity. You have our assurance that we shall at all times do our best to avoid this eventuality.
7. TERMINATION
7.1 We will on giving reasonable notice be free to refuse to act or continue acting in accordance with the Solicitors’ Code of Conduct 2007 (as it may from time to time be amended) and in particular if:-
7.1.1 we are or may be in breach of the law or the principles of professional conduct by accepting or continuing to accept instructions;
7.1.2 we consider there is or may be a conflict between your interests and those of any other client of ours or the Company;
7.1.3 any account rendered by us in respect of fees or disbursements has not been paid within 30 days of its date; or
7.1.4 any request for money on account of costs or disbursements incurred or to be incurred has not been complied with within one week (or such shorter period as may be reasonable) of it being made
7.2 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 have lost confidence in how we are carrying out your work. If you do decide that we can no longer act for you, you are liable for our charges down to the date of termination.
8. CONSEQUENCES OF TERMINATION
8.1 If our instructions are terminated for any reason then we may in addition to any other remedy available to us:-6
8.1.1 retain any deeds, securities or other documents under our control; and
8.1.2 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.
8.2 If we cease acting for you, we shall, where relevant, apply at your expense to remove ourselves from the court or employment tribunal record.
9. CONTINUING OBLIGATIONS
9.1 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.
9.2 All communications generated between us during the currency of our retainer shall remain confidential and shall not be disclosed to any third party without consent.
9.3 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. Files are not made available to assessors if the subject matter is of a sensitive nature or where you specifically request that they should not be made available.
10. COMPLAINTS
10.1 If you have a concern about any aspect of our service it should be raised immediately with the principal dealing with your matter or, if not resolved, then in writing to our person responsible for Client Care.
10.2 Any service issue will be investigated further if necessary and remedied promptly, if possible. You have the right to take independent advice from another solicitor in any case where you have, or may have a service issue.
10.3 We are committed to high quality legal advice and client care. If you are unhappy about any aspect of the service you have received or about the bill, please contact Claire Sandbrook on the main office telephone number or at [email protected] or by post to the following office address:
Shergroup Legal
20 St Andrews Street
London
EC4A 3AG
10.4 We have a procedure in place which details how we handle complaints which is available by post or email at our office.
10.5 If you are not satisfied with the Company’s Terms of Business or our handling of your complaint you can ask the Legal Ombudsman (website: www.legalombudsman.org.uk, Telephone: 0300 555 0333) to consider the complaint.
11. STORAGE OF PAPERS AND DOCUMENTS
11.1 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.
11.2 Except for any of your papers which you ask to be returned to you, we will keep the file on the understanding that we have your authority to destroy it 6 years after the date of the final bill we send to you.
11.3 We shall not destroy documents you ask us to deposit in safe custody.
11.4 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 retrieve. However, we may make a charged 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.
12. DATA PROTECTION ACT 1998
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12.1 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.
12.2 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 for you may require us to give information to third parties such as expert witnesses and other professional advisers. You have a right of access under data protection legislation to the personal data that we hold about you.
12.3 We may from time to time send you information which we think might be of interest to you. If you do not wish to receive that information, please notify our officer in writing.
13. MONEY LAUNDERING REGULATIONS 2007
13.1 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 principal whom you may represent.
13.2 In the light of the Regulations and for insurance reasons we do not normally accept cash payments from clients in excess of £500. If you try to avoid this policy by depositing cash directly with our bank, we may decide to charge you for any additional checks we decide are necessary to prove the source of the funds.
13.3 We may use electronic identification service providers to confirm your identity, and that of any beneficial owners.
13.4 Where we have to pay money to you, it will be paid by cheque or bank transfer. It will not, unless otherwise agreed between us, be paid in cash or to a third party.
13.5 For individuals and unincorporated partnerships, proof of identity will usually be a current valid passport or driving licence, together with a current utility bill or equivalent confirming your address.
13.6 For companies and limited liability partnerships we will usually require a copy certificate of incorporation and copy annual return 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 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.
13.7 For other clients, e.g. trusts, estates, charities and unincorporated associations, we will advise you of the documents needed for proof of identity.
13.8 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.
13.9 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.
14. PROCEEDS OF CRIME ACT 2002 & TERRORISM ACT 2000
14.1 We are prohibited by this legislation from acting for or advising a client in relation to terrorist financing, or the acquisition, 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 U.K.
14.2 We have a legal obligation to report to the Serious Organised 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.
14.3 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.
14.4 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 8
any overseas funds. We reserve the right to require further information and supporting documentation as appropriate.
14.5 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 two 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.
15. LIMITATION OF LIABILITY
15.1 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 are, however, happy to discuss this limit with you if you consider it insufficient for your purposes and will investigate options for providing further cover which may be at extra cost.
15.2 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.
15.3 Subject to clause 15.2 the total aggregate liability of the Company, its principals and employees 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 claimants 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 is referred to in our engagement letter or as may from time to time be the minimum level of cover prescribed for us by the Solicitors Regulation Authority.
15.4 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.
15.5 If we are liable to you either jointly or jointly and severally with any other party;
15.5.1 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
15.5.2 any sum due from us to you shall be reduced by the proportion for which another party would have been found liable if either: (1) you had also brought proceedings or made a claim against them; or (2) 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.
15.6 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 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.
15.7 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.
15.8 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.
15.9 You agree that you will not bring any claims or proceedings against our individual principals or employees. This clause shall not operate so as to exclude any liability which a principal, or employee is not permitted by law or rules of professional conduct to limit or exclude. This clause is intended to benefit such principals or employees 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.
15.10 No liability will in any event apply in respect of any incidental, indirect, special or consequential damages, including but not limited to loss of profit, revenue or opportunities.
15.11 Note however that these exclusions shall not apply to any claim in respect of fraud or fraudulent misrepresentation or death of or injury to any person. 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.
16. BANKING
We hold all client monies in banking institutions regulated by the Financial Services 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.
17. DISTANCE SELLING
17.1 If we have not met with you, the Consumer Protection (Distance Selling) Regulations 2000 may apply. This means that you have the right to cancel your instructions to us within seven working days of
receiving these Terms and Conditions. You can cancel your instructions by contacting us by post or by fax to this office.
17.2 Once we have started work on your file, you may be charged if you then cancel your instructions.
18. COPYRIGHT
18.1 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 the Company. You will have the right to use such documents and materials for the purposes for which they are created.
18.2 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.
19. EQUALITY AND DIVERSITY
We are committed to promoting equality and diversity in all of its dealings with clients, third parties and employees. Please contact us if you would like a copy of our equality and diversity policy.
20. GENERAL
20.1 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.
20.2 We will not be liable to you or any third party if we are unable to perform our services as a result of anycause beyond our reasonable control. If any such event should arise, we will notify you as soon as reasonably practicable.
20.3 We are not authorised by the Financial Services 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 the necessary advice.
20.4 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.
20.5 The Legal Ombudsman deals with complaints against lawyers. If you are unhappy with any investment advice you receive from us, you should raise your concerns with this body.
20.6 Sometimes our work involves investments. As stated, we are not authorised by the Financial Services 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.
21. APPLICABLE LAW
Our relationship with you is governed by, and construed in accordance, with English Law. The Courts of England will have exclusive jurisdiction in relation to any claim, dispute or difference concerning our retainer by you and any matter arising from it. Each party irrevocably waives any right it may have to object to any action being brought in those courts, to claim that the action has been brought in an inappropriate forum, or to claimthat those courts do not have jurisdiction.