1. Introduction
1.1. When you request us to advise you on a particular matter we will also send you a letter (“the Engagement Letter”) confirming your instructions. In these terms and conditions of business “we” or “us” refers to DKLM LLP (“DKLM”).
1.2. This Engagement Letter together with our terms and conditions of business which appear below constitute the “Engagement Terms” and form the contract between us under which we will provide services to you. Acceptance of the commencement of the provision of services to you shall be deemed to be acceptance of our engagement terms.
1.3. Our agreement to provide services may be varied by agreement during the course of the matter. In the event of any inconsistency between our Engagement Letter and these terms and conditions of business the Engagement Letter shall prevail. Our services will not include tax advice on, or the tax implications of, any instruction or course of action unless this is expressly agreed in writing at the outset, or during the course, of a matter.
2. People responsible for your work
2.1. DKLM is an English limited liability partnership which is a body corporate and which has “members” and not “partners”. However, our members prefer to use the title of “partner” in our dealings with our clients and accordingly, when we refer to a person being a “partner” this means the person who is a member of DKLM. No reference to a “partner” is to imply that any person is carrying on business in partnership for the purposes of the Partnership Act 1890.
2.2. The contract under which our services are provided to you is with DKLM LLP and not with an individual Partner, employee or agent of DKLM LLP.
2.3. for yThe Engagement Letter will identify the partner (the “Client Partner”) with ultimate responsibility for your matter. It will also identify the partner with day to day responsibility of your matter (the “Matter Partner”). He or she may be assisted by others (for example, trainee solicitors or paralegals) during the course of our work for you. If we have to change the Client Partner or Matter Partner for any reason we will notify you promptly.
3. Instructions and Scope of Engagement
3.1. We shall be entitled to act on the instructions of any of your apparently authorized employees or agents and to rely on any information provided to us by such employees and agents.
3.2. We shall carry out our engagement as recorded in the Engagement Letter(s). We shall not be responsible for any failure to advise or comment on any matter which falls outside the scope and limitations of our engagement and will have no responsibility to you to update any advice for events or changes in law which take place after the advice has been given.
3.3. Our services will not include tax advice on, or the tax implications of, any instruction or course of action unless this is expressly agreed in writing at the outset, or during the course, of a matter.
3.4. Advice rendered by us is provided for your benefit and solely for the purpose of the instruction to which it relates. It may not be used or relied on for any other purposes or any person other than you without our prior written agreement. In particular, nothing in these terms and conditions of business confers any right on any person pursuant to the Contracts (Rights of Third Parties) Act 1999 save as provided for in Clause 13.4.
4. Fees and expenses
4.1. We will do our best at the outset to give you an estimate of the likely overall cost in relation to a matter. There are, of course, many variables which come into play and therefore we will provide you with an estimate based upon the information we have at any particular stage. Unless our Engagement Letter states otherwise, any estimate or quotation of costs we give you is only a guide to assist you in budgeting and should not be regarded as a firm quotation or a fixed or capped fee. We shall do our best to notify you if any estimate of our time and/or fees that we have given you needs to be changed as a result of a change in circumstances.
4.2. Our charges are primarily based upon the time we spend dealing with your matter including meetings with you and others; any time spent in travelling (for example, to and from Court or to meetings); considering, preparing and working on papers; correspondence (whether written or electronic); and making and receiving telephone calls. The hourly charging rate which will apply will be confirmed in the Engagement Letter. If there is to be a change in the hourly rates applicable to your matter, you will be notified in writing.
4.3. These rates take into account a number of factors which include the complexity of the issue, the speed at which action was to be taken; the expertise or specialist knowledge which the case requires and, if appropriate, the value of the property or subject matter involved. Accordingly, the rate may be increased if, for example, the matter becomes more complex than expected.
4.4. Routine letters and e-mails that we write and routine telephone calls that we make and receive will be charged as units of 1/10th of an hour. Other letters, e-mails and telephone calls will be charged on a time basis.
4.5. Please be alerted to the fact that regular e-mails which need attention tend to increase costs significantly. We therefore encourage all clients to use e-mail sparingly as cost estimates can be rapidly exceeded.
4.6. The charges quoted are exclusive of VAT which will be added where appropriate.
4.7. Expenses or disbursements (i.e. payments to third parties) including travel expenses, search fees, stamp duty and the fees of counsel and other experts will be charged in addition together with photocopying, faxes and petty incidentals as appropriate. VAT is also payable on certain disbursements. We will notify you in advance of any significant disbursement to be incurred on your behalf and for which payment is due in advance.
4.8. We review charges annually, usually from 1 May.
5. Monies on account
5.1. We may at any time ask for a payment on account of costs in certain cases and this will be dealt with in the Engagement Letter. Payment on account of disbursements will normally be requested before payment is made on your behalf. If you do not make a payment on account when asked to do so we will be entitled to stop working for you.
5.2. If DKLM hold any money on your behalf, if requested by you, interest will be calculated and paid to you in accordance with the current Solicitors Accounts Rules. Subject to certain minimum amounts and periods of time described by the Rules, interest will be calculated and paid at the rate from time to time payable by our bank, for a deposit of the same amount on the basis that instant access is required. The period for which interest will be paid will normally run from the date on which the cleared funds are received by us until the date(s) of issue of any cheque(s) to discharge it, or in the case of a CHAPS transfer, until the CHAPS transfer is effected. The cost of any CHAPS transfer will be deducted. Our fee for CHAPS transfer is currently £10.00 plus VAT.
6. Billing arrangements
6.1. We will send you a final bill after completion of the matter. However, it is likely that we will also render interim bills to you at regular intervals until the matter is concluded. If a payment on account has been made by you, this will be utilised towards satisfying interim bills. Any balances held will remain as general money on account of fees and disbursements to be incurred we may also request you to make further payments on account from time to time.
6.2. Even if someone else has agreed to pay or be responsible for payment of all or part of your legal costs, we will normally address our bills to you and you will, in any event, be primarily liable to us for those costs.
6.3. Our bills are due for payment on delivery and we will be entitled to claim interest at the rate of 4% above the base rate of Barclays Bank PLC if any of them are not discharged within 30 days after the date the bill is sent to you.
6.4. If you have any queries about a bill please contact the person who sent it as soon as you receive it.
6.5. We may pay any outstanding invoice by deduction from money we hold for you (including money received from others).
7. Equality and Diversity
7.1. This firm is committed to promoting equality and diversity in all of its dealings with client, 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.
8. Special Conditions in Litigation matters
8.1. As a general rule, we are not prepared to enter into “conditional fee” (i.e. no win no fee) arrangements, but if you feel that you would like to discuss this further with us then please feel free to do so. A conditional or contingency fee arrangement will not be entered into on behalf of the firm without a thorough initial risk assessment being carried out and approved and authorized by at least two partners in the firm.
8.2. If you think you are entitled to receive legal assistance under an insurance policy (for example a home insurance policy or an After the Event (“A.T.E”) policy which can be arranged in certain circumstances), please let us know as soon as possible so we can discuss this with you.
8.3. If your matter is a litigation matter or becomes so, our aim is to ensure that you are successful and that you obtain a settlement or judgment against your opponent which provides that your opponent meets your legal costs. These costs are often subject to a Court process known as “assessment” which means that the costs ordered to be paid by another party, will cover the entire amount of costs that you will be liable to pay to us for conducting the litigation. If you lose your case you are likely to have a costs order made against you so that you will be obliged to pay your opponent’s costs on a similar basis.
8.4. Please note that it is open to the Court at certain hearings during the litigation to “summarily assess” the costs of any particular hearing and order that one of the parties pays the other costs of the hearing within 14 days. If you fail to pay you risk losing your case.
8.5. Interest will be claimed on the costs which another party has to pay to you and if you request us to do so, we will attempt to enforce an Order for costs against another party. However, any further costs in taking such action will be your liability, although we will claim for these costs as part of the assessment procedure. Throughout the case you should always give consideration to the likelihood of enforcing any orders that are made in your favour. It is, in practice, often the case that litigation has to be abandoned because the opponent has no money or there will be major problems in enforcing any judgment or Costs Order obtained. If an opponent is publicly funded you will not be able to recover your costs, even if you are successful unless there are exceptional circumstances.
8.6. We will do our best to advise you throughout as to the continuing merits of pursuing the litigation but please bear in mind that embarking upon litigation, even with the most meritorious of cases, carries risks and the outcome cannot be guaranteed. This is something you should consider throughout the case but we stress at all times that you are primarily responsible for paying our costs whether you win or lose your case.
9. Special Conditions in Property Transactions
9.1 An invoice will be rendered prior to completion and payment is required on or before completion. Where sufficient funds are due to you on completion, unless otherwise agreed, any outstanding invoices shall be deducted from such funds
9.2. We reserve the right to refuse to complete a transaction unless payment of our costs has been made in full including any sums due for disbursements or out of pocket expenses.
9.3 Where we have to transfer money on your behalf we cannot do so until the money has cleared the banking system. If the money has not cleared we will not be able to make a payment for you. Please note that up to 10 days must be allowed before we can confirm if the payment has cleared our bank account.
9.4. Where a client obtains a mortgage advance from a lender, we shall request the lender to arrange that the advance cheque is received by us in sufficient time to clear the cheque prior to completion. Please note that the lender may charge interest from the date of issue of the cheque. This is not recoverable from them or us.
10. Financial Services
10.1 If during a transaction you need advice on investments, we may have to refer you to someone who is authorized by the Financial Services Authority, as we are not. However, as we are regulated by the Solicitors Regulation Authority, we may be able to provide certain limited investment services where these are closely linked to the legal work we are doing for you.
10.2. If you have any problem with the service we have provided for you then please let us know. We will try to resolve any problem quickly and operate an internal complaints handling system to help us to resolve the problem between ourselves. If for any reason we are unable to resolve the problem between us then we are regulated by the Solicitors Regulation Authority and complaints and redress mechanisms are provided through the Solicitors Regulation Authority and the Legal Complaints Service.
10.3. The Law Society is a designated professional body for the purposes of the Financial Services and Markets Act 2000, but responsibility for regulation and complaints handling has been separated from the Law Society’s representative functions. The Solicitors Regulation Authority is the independent regularity body of the Law Society and the Legal Complaints Service is the independent complaints handling body of the Law Society.
11. Money Laundering Precautions
11.1 Like all firms of solicitors, we are now required by law to apply procedures to guard against the risk of money laundering. It will help us to avoid any problems with your legal work if you bear in mind the following points.
11.2 Identification checks - we may need to obtain formal evidence of your identity. This may be necessary even though we have acted for you before, or even if you are known personally to a member of staff. We will tell you if such evidence is necessary, but it may help us if you are able to bring evidence to our first meeting. Normally, the evidence we request is your passport, plus two or more documents to establish your address, such as recent utility bills, council tax statements, or bank statements not being more than three months old as proof of address. In certain circumstances we may carry out searches to verify your identity and proof of address. The fee for this, which will be charged as a disbursement, is approximately £5.00.
11.3 Cash – our firm’s policy is not to accept over £500.00 in cash.
11.4 Source of funds - at the start of any matter we will normally ask you to tell us the source of any funds you will be using. It is simplest if the source is an account, in your name, in a UK bank or building society. If the source is an unusual one, such as an account in another country, or in the name of someone other than yourself, please tell us as early as possible, including the reason. Failure to disclose the details of the source of funds may lead us to terminate your retainer.
11.5 Destination of Funds - where we are to pay money out to you, we will normally do so by cheque in your favour, or into an account in your name. If you would prefer us to pay money to someone other than yourself, please tell us as early as possible, including the reason.
11.6 Confidentiality - we have always sought to keep our client’s affairs confidential. However, recent legislation on money laundering and terrorist financing has placed Solicitors under a legal duty in certain circumstances to disclose information to the Serious Organised Crime Agency (SOCA). Where a Solicitor knows or suspects that a transaction on behalf of a client involves money laundering, the Solicitor may be required to make a money laundering disclosure. If, whilst we are acting for you, it becomes necessary to make a money laundering disclosure, we may not be able to inform you that a disclosure has been made or of the reasons for it.
12. Raising queries or concerns with us
We are committed to providing a high quality service in all respects and keeping you advised regularly of the progress of your matter. If you have any queries or concerns about our work for you, please raise them in the first instance with the Client Partner. If that does not resolve the problem to your satisfaction, then please contact our Managing Partner who will do his best to resolve any problems that you may encounter. We wish to ensure that you have no reason to be unhappy with our service and therefore if you do have any concerns, please raise them with us as soon as possible. A copy of our complaints procedure can be found on our website.
13. Limitations on our liability
13.1. We shall not be liable to you for any failure or delay or for the consequences of any failure or delay in performance of your instructions if it is due to any event beyond our reasonable control including, without limitation, acts of God, war, industrial disputes, protests, fore, flood, storm, tempest, explosion, acts of terrorism and national emergencies.
13.2. Save as stated in the sub-paragraph 13.5, our total liability to you in respect of our engagement for any loss, liability or damage howsoever caused, whether in contract (by way of indemnity or otherwise), tort, (including negligence), misrepresentation, restitution or otherwise (in each case whether caused by negligence or not) and whether related to any act, omission, services provided to you or not provided to you or failure to act or delay in acting by DKLM LLP will be limited to an amount recorded in writing (the “Liability Cap”). The Liability Cap:
In respect of loss of damage to your tangible property arising due to our negligence is £10 million; and
In respect of all other loss or damage is as set out in the Engagement Letter. If the Engagement Letter does not address the Liability Cap (and we have not agreed otherwise with you in writing), the Liability Cap in respect of all other loss or damage is £3 million.
13.3. The extent to which any loss or damage will be recoverable by you from us will also be limited so as to be in proportion to our contribution to the overall fault for such loss or damage, taking into account any contributory negligence by you, your other advisers and/or liable in respect of such loss.
13.4. You agree not to bring any claim in respect of loss or damage suffered by you arising out of or in connection with our engagement (including but not limited to delay or non performance of our engagement) against any of our partners, employees or agents even where our partners, employees or agents have been negligent. This restriction will not operate to exclude any liability that cannot be excluded at law or to exclude the liability of DKLM LLP for the acts or omissions of any of our partners, employees or agents. It is agreed that each of our partners, employees or agents will have the right to enforce this paragraph pursuant to the Contracts (Rights of Third Parties) Act 1999. We reserve any right we may have to rescind or vary the Engagement Terms without our having to seek the consent of our partners, employees or agents.
13.5 Nothing in the Engagement Terms shall affect liability which we may have to you in respect of any personal injury or death resulting from our negligence, any loss caused by our fraud, fraudulent misrepresentation or reckless disregard of our professional obligations or any other situation where the law prohibits us from excluding or limiting our liability to you. The provisions of this paragraph 10 shall continue to apply, notwithstanding the termination of our engagement for any reason.
14. E-Mail
14.1 We may communicate with you by e-mail, unless you request us not to do so. Documents sent to you by e-mail (whether or not containing confidential information) will not be encrypted unless you request us, in writing, to encrypt outgoing e-mail and we are able to agree with you and implement mutually acceptable encryption standards and protocols.
14.2 It is your responsibility to protect your system from viruses and any other harmful code or device. We try to eliminate them from e-mails and attachments but we accept no liability for any which remain. We may monitor or access any e-mails sent to us.
15. Termination
15.1 You may withdraw your instructions on any or all of your matters at any time by written notice to us. We may keep all of your papers and documents whilst there remains any unpaid charges or expenses due to us on any matter.
15.2 We will only stop acting for you if there is good reason, for example, if you do not pay an interim bill or money requested on account of our charges, or if you fail to give us proper instructions or your instructions conflict with our rules of professional conduct.
15.3 If you or we decide that we no longer act for you, you will be responsible to pay our outstanding fees, expenses, disbursements and VAT (including those not yet billed) to the date of termination.
16. Retention of deeds and documents
16.1 At the conclusion of a transaction, we will store documents and deeds on your behalf for a reasonable period of time. Such papers or files may be stored in an electronic form. This service is currently free of charge. We do not always store clients’ deeds and documents on our own premises but sub-contract out our storage facilities to independent third parties.
16.2 We also reserve our rights to destroy your files and papers after a reasonable period, without prior notice to you, unless we receive a written request from you during this period. At your request we will return any papers or property belonging to you which are not subject to a lien or otherwise being stored for safe keeping.
16.3 If we retrieve documents or papers from storage in relation to continuing or renewing instructions from you, we will not normally charge the direct cost for removal from storage. However, in all other cases, we reserve the right to make a charge for the retrieval or delivery of any stored files, papers or deeds or a charge based on the time we spend reading stored files, papers of deeds, writing letters or other work necessary to comply with your instructions.
17. Data Protection Act 1998 (the “DPA”)
17.1. We are registered under the Data Protection Legislation. The personal information provided by you will be held by DKLM for record keeping and general administration in the context of our business. In most circumstances we are able to supply you, upon payment of a fee, with copies of the information we store about you and your business.
17.2. Some of our typing work is carried out on our behalf by external service providers. This work is carried out under conditions of rigorous security and confidentiality and the service provider is obliged to ensure that your rights under data protection legislation are protected.
17.3 In respect of any personal information which we process during the course of a matter we will comply with our duties under the DPA and we will take reasonable steps to ensure the reliability of our employees who have access to your personal information.
17.4 We may use the information you provide to contact you or appropriate persons within your organisation about our legal services which may be of interest to you or your organisation.
18. Application of these terms
Your continuing instructions will amount to your acceptance of these terms of business. These terms supersede any earlier terms of business we may have agreed with you and, in the absence of express agreement to the contrary, will apply to the services referred to in the Engagement Letter accompanying these terms and all subsequent services we may provide to you. If it is necessary at any time to amend or supersede these terms with new terms we will notify you of the changes. Unless we hear from you to the contrary within 14 days after such notification, the amendments or new terms will come into effect from the end of that period.
19. Each contract between us shall be subject to and governed by the Laws of England and Wales. Any dispute arising from or under our contact with you shall be subject to the exclusive jurisdiction of the English Courts.
