Terms of Engagement

1. Introduction

These terms and conditions (“Terms”) are accompanied by a letter of engagement (referred to as the “Letter of Engagement”) which confirms the basis upon which we accept your instructions and incorporates reference to these Terms. Please read both the Letter of Engagement and these Terms carefully. If there is any conflict between our Letter of Engagement and these Terms, the Letter of Engagement applies. By signing and returning the Letter of Engagement you accept that you fully understand the Letter of Engagement and these Terms. Even if you do not return the Letter of Engagement, if you continue to give us instructions, you will be considered to have accepted these terms and conditions.
We use the expression “we “us” “our” to refer to Barcan and Kirby LLP (“LLP”). Where we use the word “partner” we are referring to a member of the LLP or an employee or consultant of the LLP or any other legal entity owned by the LLP.

2. People responsible for your matter

The Letter of Engagement will confirm the people who will carry out most of the work on your matter and their charges. It will also set out the contact details of the Head of Department who is ultimately responsible for your matter.
We try to avoid changing the people who are responsible for your work but this may not always be possible. We will inform you as soon as possible if overall responsibility changes and why the change is necessary.

3. Scope of advice

Our advice is personal and confidential to you only. If you pass any of that advice on to others or ask us to do so, that other person will not have any enforceable right against this LLP under these Terms.
We may advise you to seek advice from other professionals such as accountants or surveyors. We are not liable for any advice they give you (whether or not such advice is obtained by us as your solicitors). If we need to engage other professionals on your behalf we do so as your agent and cannot be responsible for any act or omission of such professionals unless we have agreed in writing.

4. Charges and expenses

We generally calculate our charges based on the hourly rates of and the time engaged by those acting on your matter. Time spent on your matter is recorded in units of six minutes, and fractional units are rounded up to the next whole unit.
We reserve the right to increase the level of the hourly rates set out in the Letter of Engagement where a case or transaction is one of exceptional urgency or complexity, or your instructions require that meetings take place or other work is carried out outside normal office hours.
We will periodically review our hourly rates and reserve the right to vary them at any time by written notice to you.
In property transactions, in the administration of estates and in transactions involving a substantial financial consideration or benefit to you, fees may be calculated both by reference to the time spent and also by reference to a value element. This will be assessed on the price of the property, the size of the estate or the value of the financial benefit (as the case may be). The value element reflects the importance of the transaction to you and the consequent responsibility falling on this LLP. We will inform you if this is applicable to your matter.
We may have to pay expenses on your behalf during the course of a matter (such as experts’ fees, court fees, travel costs, company searches, search fees and photocopying costs). These will be shown separately on our invoices. Unless you ask us to do so, we will not usually check with you before paying expenses on routine items. If we have to pay non-routine expenses, we will usually ask you first. You will have to repay us for any expenses or payments we make on your behalf. We are under no obligation to effect any payments on your behalf unless cleared funds have first been provided by you for that purpose.
Unless zero rating or an exemption applies, we will add VAT to our charges and certain expenses we incur on your behalf at the relevant rate.
By accepting these Terms you agree that you are instructing us that any payment received on account of costs or in respect of an agreed fee will be held on our client account until a bill is rendered.

5. Estimates of costs

Unless stated to the contrary in the Letter of Engagement, any estimate of costs given in the Letter of Engagement is not intended to be fixed. We will give you updates and further estimates of our likely charges and expenses as the matter progresses and usually every six months.
You may ask us to set a limit on the charges and expenses. If we have agreed to such a limit, this will be set out in the Letter of Engagement or later estimates. We will let you know if it appears that costs will exceed the agreed limit and we will not incur costs in excess of the agreed limit without first obtaining your approval.
You may also ask us to work on a ‘Fixed fee’ basis. If we have agreed to do so, this will clearly be set out in the Letter of Engagement.

6. Interest

In accordance with the Solicitors Regulation Authority’s Accounts Rules, we are required to account to our clients for interest on money held by us in our client account when it is fair and reasonable to do so. The holding of client money is incidental to the carrying out of clients’ instructions. In addition, we are required to hold client money in an instant access account to facilitate transactions. As a result, the rates of interest paid under this policy are unlikely to be as high as those obtainable by a client.
When we hold money in a general client account for longer than six working days (other than money paid to us on account of our costs and/or disbursements or for the Legal Aid Agency) we will pay a sum in lieu of interest. That sum in lieu of interest will be calculated on a daily basis at the rate equivalent to that payable by Lloyds Bank for instant access business accounts. Any payment in lieu of interest under this paragraph will be paid gross of tax. We will withhold from the payment in lieu of interest the first £20 or such other sum as we shall notify you from time to time.
When we hold money in a separate designated client account we will pay all interest actually earned on the account. Ordinarily, money held in relation to complex or long-running matters (other than money paid to us on account of our costs and/or disbursements or for the Legal Aid Agency) would be paid into a separate designated client account. Any payment of interest under this paragraph will be paid net of basic rate tax.
Where money is held in relation to separate matters for the same client we will treat the matters separately, unless the matters are so closely related that they should be considered together. We will normally account to the client for interest at the conclusion of the matter.
If you are obtaining finance from a lender for your transaction, we ask the lender to forward funds by telegraphic transfer (for which there may be a charge) in advance of the required date in order to ensure that cleared funds are available. You should note that your lender may charge interest from the date the transfer is made.

7. Invoice arrangements

It is normal practice to ask clients to pay sums of money in advance from time to time, to cover the cost of future charges and expenses. We will normally ask for the first payment in the Letter of Engagement.
To help you budget, we will send you regular interim invoices for charges and expenses. We are entitled to offset any funds held against those invoices in accordance with the Solicitors Regulation Authority’s Accounts Rules and may require you to provide us with further payments on account.
In relation to estate matters, to the extent that any sums received by us on behalf of executors are not required for payment of liabilities of the estate having priority in law to our own charges and expenses and have not been specifically allocated for payment of the other outgoings, those sums will be treated as available for payment of our invoices within 48 hours after they have been rendered.
Payment is due within 14 days of the date of our invoice or before completion of your transaction, whichever is sooner. If you do not pay an invoice (in whole or in part) within one month of the date of the invoice, we may charge you interest at 8 per cent per annum on the amount outstanding, starting from 14 days after the date of the invoice and continuing until payment. We also reserve the right to cease acting on your behalf where our fees remain unpaid for more than 14 days. If we cease acting for you we will write to you to inform you of that decision. We will try to give you reasonable notice but we are under no obligation to give you such notice.
Please note that even though it may be the case that some other person or third party agrees or is ordered to pay our costs, you will remain personally responsible for paying them as and when they become due. We will not usually allow delays in payment of our charges and expenses because someone else has agreed to or is under an obligation to pay them.
In the case of trade unions, the member may be required to reimburse the trade union or you may be required to pay us direct. It may be that you have not received full details of how our charges are calculated. Therefore, if requested by you, we will provide details of charges at any stage in the transaction.
Any third party funder will be aware of how the charges will be calculated and that the LLP expects them to settle the charges. In accepting third party funding, you will be accepting the right of the funder to receive confidential information regarding your matter and authorise us to discuss any aspect of the matter with them.
If you have any queries about an invoice, you should contact us straight away. If you do not pay an invoice, we may begin legal proceedings against you for payment of our charges and expenses 45 days after the account is rendered. In all such cases, you will be responsible for the payment of all further charges and expenses incurred in those proceedings, even if that claim is for less than £5,000. We may, at our discretion, accept payment by credit card.
If you are dissatisfied with our bill to you, and we cannot resolve this between us, you can apply to the Court for an assessment of the bill under Part Ill of the Solicitors’ Act 1974. However, the Legal Ombudsman may not consider a complaint about a bill if an application to the court for assessment has been made. Please note that if all or part of the bill remains unpaid the firm may be entitled to charge interest.

8. Copyright

We own the copyright in all documents created by us for you. You may use those documents for the particular purpose for which they were created if you have paid all costs and expenses due to us. If you wish to use them for any other purpose, you must obtain our permission to do so first.

9. Financial services

We are not authorised by the Financial Conduct Authority. However, we are included on the register maintained by the Financial Conduct Authority so that we may carry on insurance mediation activity (broadly this means advising on, selling and administration of insurance contracts).
This part of our business, including the arrangements for complaints or redress if something goes wrong, is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Services website. The Law Society of England and Wales is a designated professional body for the purposes of the Financial Services and Markets Act 2000. The Legal Ombudsman is the independent legal complaints-handling authority. If you are unhappy with any insurance advice you receive from us, you should raise your concerns with either the Solicitors Regulation Authority or the Legal Ombudsman.

10. Papers and storage

On completion of a matter and payment of our fees and at your request we will return to you any documents provided to us for the purposes of that matter and any other papers to which you are entitled. We will exercise a lien in respect of unpaid fees. This means that we are entitled to refuse to give any papers to you or anyone else until you have paid our bill.
We cannot undertake to retain files for any specific period but will generally try to keep files for a minimum of six years after which we reserve the right to destroy them. It is your responsibility to ask us if you want any other papers returned to you. We accept no responsibility in respect of files of papers destroyed after six years.
If we retrieve papers or documents from storage at your request or in relation to continuing or new instructions to act for you, we may make a charge for such retrieval. We may also charge for reading, correspondence or other work necessary to comply with the instructions given by you or on your behalf.
If we accept any deeds, Wills or other documents for storage, we are not thereby responsible for checking the accuracy of those documents or for advising on any changes in law which may affect the terms of the documents, including in relation to any tax planning arrangements.
If we accept any deeds, Wills or other documents for storage we may charge for storing or retrieving those documents. We will inform you in advance of any charges we may impose.
If we are required for any reason (whether during the course of a matter 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. We will be entitled to be paid for the costs of such compliance by you at our then existing hourly rates.
It is your responsibility to ensure that you keep safe all letters, papers and documents which are in your possession which may, in any way at all, be connected to a matter.

11. Termination and cancellation

Once instructed, we will normally continue to act for you in that matter until your instructions have been fulfilled. Circumstances may arise where it is appropriate for either of us to terminate the arrangement even though the matter has not reached its conclusion. If we terminate the instructions we will notify you and provide reasons wherever possible. When this happens, you will be responsible both for fees and expenses up to the date of termination, and any fees and expenses necessarily associated with our ceasing to act or the transfer of the work to another adviser of your choice.
Unless you are acting in the course of a business, you may also have a right to cancel this contract under Consumer Protection legislation. If so, you must exercise any such right within 14 days of instructing us following an initial visit by us to your home or place of work. You may even exercise that right if, at your request, the performance of our services has begun, but in that case, you may be liable to pay us for the work done before you cancel.

12. Our liability

You acknowledge that we are a limited liability partnership and that there is no contract between you and any of our individual members, employees or consultants. Any advice given to you by a member, employee or consultant is given by that person on behalf of the LLP and that person does not assume any personal responsibility to you for that advice; accordingly, you will not bring any proceedings against that individual for any losses you might suffer or incur, whether directly or indirectly in connection with our services. None of the provisions of the conditions of this clause 12 will limit or exclude our liability (subject to 12.2) for the acts or omissions of our members, employees or consultants.
Unless otherwise agreed in writing by a Partner of this LLP, the liability of this LLP and its employees and agents (whether arising in contract, negligence or otherwise) in any matter will be limited to £3 million for any claim or series of claims arising from the same circumstances. Any consequential or indirect loss (whether or not it might have been foreseeable at the commencement of the matter) is excluded. Nothing in this condition will exclude or limit any liability or limitation of which is prohibited by law.
Unless otherwise agreed in writing by a Partner of this LLP, we accept no responsibility whatsoever to any third party howsoever arising from the advice that we give to you. Any third party receiving details of our advice or any document containing such advice given to you does so at its own risk and must be informed of this clause.
You also agree that in respect of any particular matter or any linked matters for which we are engaged our total liability to you for any losses for which we are liable at law, whether in contract or in tort, shall not exceed the amount specified (if any) in our Letter of Engagement. Any consequential or indirect loss whether or not foreseeable is excluded.
If we are acting for more than one person the limit of liability will be allocated between you and you will not dispute the limit of liability if the application cannot be agreed.
We have in place compulsory professional indemnity insurance. Details can be supplied on written request to the Practice Managing Partner.
The Contracts (Rights of Third Parties) Act 1999 is excluded so that no third party shall be entitled to enforce any provisions of these Terms or the Letter of Engagement.
We will not be liable to repay money lost through the failure of a bank or other financial institution.

13. Confidentiality

Information passed to us is confidential and will not be disclosed to third parties except as authorised by you; or as required by law or our rules of professional conduct; or in accordance with paragraph 13.2 below. If on your authority we are working in conjunction with other professional advisers, we will assume that we may disclose any relevant aspect of your affairs to them.
Sometimes we ask other companies or people to do typing on our files to ensure this work is done promptly. We will always seek a confidentiality agreement with these outsourced providers and will only use UK based providers. If you do not want your file to be worked on in this way, please tell us soon as possible.
We may also have responsibilities to other organisations, such as the Court, DWP, Legal Aid Agency, insurers or your mortgage lender if we are instructed to act for them as well. Therefore in order to advise you, we may have to supply information to them and acceptance of these terms is your authority for us to do so.
If your case is funded publicly (“legal aid”) or by a third party then it is always subject to review by the funder. This could mean that your file is selected for checking and acceptance of these terms and conditions confirms your consent for inspection to occur.
All inspections are, of course, conducted in confidence. We will also assume, unless you indicate otherwise, that consent on this occasion will extend to all future matters which we conduct on your behalf.

14. Conflicts

It is our policy to comply with the terms of the SRA Standards & Regulations. Even so, conflicts between your interests and those of another client may arise. If there is a conflict of interest, we may have to cease acting for you. Conflicts may arise (amongst other reasons) because we have discovered information while acting for another client which we would normally be bound to disclose to you and the disclosure of that information conflicts with our duty to that other client. If that happens we have the right to withhold that information and terminate our engagement with you. We may also cease to act in a particular matter for the other client involved. All fees and expenses and VAT up to the date of termination will be charged and become due. Full details of our policy on avoiding conflicts of interest are available on request.

15. Compliance

In order to meet our obligations under money laundering regulations, we will ask you to provide proof of your identity (which we may validate using third party identity verification services) and details of your personal finances, including the beneficial ownership of assets in connection with which you have engaged us to provide legal services and details of the ultimate beneficiary of our services. We may also be required to provide such information to your insurance company, building society, bank, the Legal Aid Agency or other relevant authority before we are able to carry out your instructions and you agree that we may do so. We may also have to ask you to explain to us the source of any money provided to us by you.
We are legally obliged to report directly to the National Crime Agency (“NCA”) without prior reference to you or your representatives if, during the course of acting for you, we become suspicious of money laundering or other criminal activity. By law, your right to confidentiality and your professional legal privilege is waived to the extent of any report made, document provided or information disclosed to NCA. Our duties under the Act take precedence over all our professional and contractual obligations to you. Accordingly, by instructing us you accept that we will not be liable for any loss you may suffer because we have made a report under the Act and, or, have ceased to work while we await authority to proceed. If we have to make a report, the Act requires us to undertake no further work until authorised to proceed by NCA. It also prevents us from telling you that a report has been made or giving you any explanation as to why we have ceased work.
We are unable to accept cash payments in excess of £1,000 for any single transaction.

16. Data protection

We have a Client Privacy Notice that is sent with our Letter of Engagement with you. This notice forms part of these terms of business. If you need another copy of the notice or any other information about the way we process and manage personal data, please contact dataprotection@barcankirby.co.uk.

17. Auditing

We are currently audited by a number of organisations, which monitor standards of performance. We have a duty of confidentiality to you and, therefore, need your permission for your files to be inspected by these organisations. These organisations will keep your information confidential. Your acceptance of these terms will be taken as permission. If you refuse to give us this permission which refusal must be given in writing, it will in no way affect our handling of your case or the standard of our work. You may withdraw any permission granted at any time in writing without having to give us a reason.

18. Email, fax and IT matters

Unless otherwise agreed, we may use conventional (unencrypted) email to communicate with you and anyone else who is involved in any matter on which you instruct us. You acknowledge that conventional email may present security risks in certain circumstances and you shall be taken to have accepted those risks unless you tell us not to use that means of communication.
If you would like us to use encrypted email for communication purposes you should notify us in writing. We will try to do so, but this shall also be subject to us making the necessary arrangements with you and any other recipients.
If you do not want us to fax you at any fax number where we might ordinarily think you may be contactable, you must inform us of this in writing and provide us with any fax number(s) you wish us to use.
Please note that in order to protect the integrity and security of our IT systems, we may prohibit the receipt and opening of certain types of electronic files by our staff and you should note our internal IT procedures may also impose a delay on our ability to open and deal with certain types of electronic files.
Please note that we may record and monitor telephone, fax and email communications that are made to or from our offices and staff for the purposes of the Telecommunications (Lawful Business Practice) (Interceptions of Communications) Regulations 2000.

19. Deposit of money

Unless we advise you to the contrary, all money held by us on behalf of clients is held at Lloyds Bank. The Financial Services Compensation Scheme indemnity limit from time to time applies to each individual client. So, if you hold other money in account/s whatever their brand name at Lloyds Bank then the limit will apply (i.e. your own money at Lloyds Bank may be aggregated with the money we are holding on your behalf at Lloyds Bank).

20. Complaints

If you are unhappy with any aspect of our service, we want to be the first to know. Your client care letter gives you the name of the person with overall responsibility for your matter. If you are concerned about the work of any of the staff working under that person, please speak to that person directly.
If that person is unable to resolve your initial complaint, you should contact our Compliance Manager, Gemma Geoghegan at our Kingswood office or BKCOMPLAINTS@barcankirby.co.uk.
This firm has a procedure in place which details how we handle complaints which is available on our website or which you may request from us. We have eight weeks to consider your complaint from start to finish. If we have not resolved it within this time or you do not agree with the outcome you may complain to the Legal Ombudsman if you are an individual or a small business.
Complaints to the Legal Ombudsman must usually be made within six months of receiving the final written response from us about your complaint. The Legal Ombudsman can investigate complaints for up to six years from the act or omission about which you are complaining or within three years of the date you should reasonably have been aware of the issue, whichever is later. You can contact the Legal Ombudsman on 0300 555 0333; via email at enquiries@legalombudsman.org.uk; and via post PO Box 6806, Wolverhampton, WV1 9WJ.
If you are dissatisfied with our bill to you, and we cannot resolve this between us, you can apply to the court for an assessment of the bill under Part III of the Solicitor’s Act 1974. However, the Legal Ombudsman may not consider a complaint about a bill if an application to the court of assessment has been made. Please note that if all or part of the bill remains unpaid the firm may be entitled to charge interest.

21. Equality and diversity

This Firm is committed to promoting equality and diversity in all of its dealings with clients, third parties and employees.

22. Waiver

Any failure by us to insist upon strict performance of any of these terms or any failure or delay by us to exercise any remedy whether under the terms, at law or otherwise is not to be deemed a waiver of our rights to insist on the performance of the terms or of any of our remedies as to any default under the terms.

23. Your responsibilities

To allow us to advise you fully, we need you to help us by giving full clear instructions, providing all relevant documents, acting promptly and telling us about any time limits that you consider relevant and any subsequent changes.
The advice provided in any document prepared by us is based solely upon the information you supply to us and upon current law at the time of its preparation. It is your responsibility to inform us of any changes in circumstances which may affect the validity of the advice. This LLP does not accept responsibility for notifying you of any changes in law or legal decisions (including in relation to tax planning) which may affect the terms of the advice.
To assist the efficient progress of a transaction and to minimise costs you agree:
- to provide us with written confirmation of any significant variation of your original instructions;
- to respond promptly in writing to any request for instructions that you may receive from us;
- that we are authorised to incur the costs and search, notice or court fees (including repeat searches) which in our professional judgement, are necessary to protect a party’s interests;
- to provide evidence of your identity when and how we may request;
- to take whatever steps we may request to comply with the current money laundering regulations;
- to pay money due to us by credit or debit card, bank transfer, building society cheque or banker’s draft;
- carefully and completely to read all correspondence and documents that we send to you and to let us know if there are any points that you would like to discuss or have explained to you;
- to recognise that our estimates for our charges are mainly based on the number of letters and phone calls and the time it takes to conclude a matter. If we have to carry out a significant extra amount of any work on a case by, for example, having to respond to numerous or lengthy letters or phone calls from you, this will have the effect of increasing our charges, for which you will be responsible;
- generally, to co-operate with us.
Payments by bank transfer should be made to our account at Lloyds Bank, Kingswood, Bristol. We will provide you with details of our account when funds are required and if you wish to avail yourself of this facility. Banker’s drafts and building society cheques should be with us no later than six working days before funds are due to be utilised by us.

24. Ending your contract with us

You can at any time ask us to stop work on your matter. Our charging policy in these circumstances is explained in sections 4 to 7 above.

25. Ending or suspending our contract with you

We might have to stop working for you if:

We discover that to act for you would conflict with our duties to the Court or to another client for whom we were already acting (we always carry out an internal office check at the start of each matter to try to make sure that this is not a problem);
To continue to act for you would require us to break the law;
You directly or by implication instruct us to break an undertaking that we have given to somebody else on your behalf and with your consent;
You do not pay any of our charges, disbursements or VAT within one month after we have sent you our invoice or request for payment;
We ask you to make a payment in advance on account of our charges, disbursements or VAT, but you fail to do so;
We believe that you are insolvent or unable to pay your debts.

26. Our right to retain your papers

Subject to any obligations we may have to the Legal Aid Agency, the Court or any other third party to whom we may be bound on your behalf, we are entitled to retain any files of papers we hold in respect of any matters where we have acted or are acting for you pending payment in full of any sums due from you. This is called the Solicitor’s Lien.

27. Governing Law

Our relationship with you will be governed by English law and will be subject to the exclusive jurisdiction of the English courts.

Our address for service is:
111/117 Regent Street, Kingswood, Bristol BS15 8LJ. Our VAT number is GB 423 0157 00.

Partners

G Artess, J Bell, G Bryant, S Castle, R Davenport,

H Franklin, K Hale, R Harries, C Hurrell, S Maqsood,

C Miller, A Molter, S Parker, H Pennelegion, T Powles,

L Roberts, T Sharkey, A Willcocks, A Wilson

Authorised and regulated by Solicitors Regulation Authority LLP Number OC374955.