Terms of Business – Ingram Winter Green LLP

Our Responsibility and Liability

We will:

1. update you by telephone or in writing with progress on your matter on a regular basis;
2. explain to you the legal work required as your matter progresses;
3. update you on the cost of your matter at regular intervals;
4. update you on whether the likely outcomes still justify the likely costs and risks associated with your matter whenever there is a material change of circumstances;
5. update you on the estimated timescales for each stage of your matter and any important changes in those estimates.

Our duty to you does not extend beyond the scope of your instructions as summarised in clause 3 of our retainer letter. We do not accept any duty to you in tort which exceeds the contractual duty of care arising from those instructions.

Unless we have expressly agreed otherwise in writing with you, we will not:

1. provide taxation advice or accept responsibility for the taxation consequences of any matter on which we are instructed or in which we become involved on your behalf;
2. provide advice in respect of Financial Conduct Authority or Prudential Regulation Authority rules or guidance;
3. provide advice in respect of any swap, hedge or derivative products.

Where we are instructed in relation to any transaction, our advice will be limited to the legal aspects of the transaction and we will not advise you on any commercial or financial matters, including the commercial and financial aspects or suitability of any funding or security arrangements. We will, however, advise you on the legal terms of any financing document into which you propose to enter for the purpose of the matter in relation to which we are instructed.

We will advise you on English law but we will not provide advice on the laws of any other jurisdiction.

Your Responsibilities

It will be your responsibility:

1. to pay our fees, disbursements, and any other sums due to us from time to time in accordance with our retainer letter and these additional terms;
2. to provide prompt and accurate instructions and advise immediately of any changes in those instructions;
3. to provide such materials and information as we may require from time to time in order to satisfy our statutory obligations in respect of Money Laundering;
4. to pay money on account of costs and disbursements where requested and in accordance with these terms; and
5. to co-operate with us reasonably.

We shall be entitled to terminate your retainer of this firm if you do not comply with these responsibilities.

Our Fees

Unless we have expressly agreed a fixed fee in writing with you at the commencement of our retainer, our charges are primarily based on the time we spend in carrying out your instructions. Time spent on your affairs may include (without limitation) meetings with you and perhaps others, travelling, considering, preparing or working on papers, drafting documents, correspondence, making and receiving telephone calls or conducting searches.

If your instructions mean we have to work outside normal office hours, we reserve the right to increase the level of our hourly rates. You will be notified in writing of any increased rate.

On 1 January and 1 July each year we review all of the firm’s hourly rate/s and will notify you in writing of any increased rate, which will take effect upon notification.

In calculating our charges, in addition to the time spent we may take into account a number of factors which include the complexity of the issues, the speed at which action must be taken, the expertise or specialist knowledge which the case requires and, if appropriate, the value of the property or subject-matter involved. The rates may be higher if, for example, the matter becomes more complex than expected, or requires a higher than normal level of specialist input.

We will add VAT to our charges (including all disbursements and expenses chargeable to you) at the rate required by law. All fees and charges quoted by us to you are exclusive of VAT unless otherwise expressly stated.

We reserve the right to request that you provide money on account of costs to be incurred by us at any time during the course of a matter. We commonly exercise this right.  We shall apply funds held on account towards future bills.  When we put these payments towards your bill/s, we will send you a receipted bill.  It is important that you understand that your total charges and expenses may be greater than any advance payments on account.  We shall be forced to cease work on your case in the event that you do not provide funds on account as and when requested and existing funds provided by you are insufficient to cover anticipated future work.   Such cessation of work may cause harm to you for which we will not be responsible.

Wherever possible, we will endeavour to provide estimates of the costs likely to be incurred by you for forthcoming work. Such estimates obviously involve an element of future prediction and, whilst we strive to provide a reliable prediction, we cannot guarantee that costs will not exceed the predicted levels.  Our estimates are not an agreement to fix costs at the levels estimated and you will remain liable for our costs if they exceed the estimated level for any reason.   Unless otherwise stated, any estimate of our fees and expenses does not include VAT, which will be charged where applicable at the appropriate rate.

We may from time to time enter into a special fee arrangement, such as a fixed or capped fee. Where such an arrangement is agreed, the special fee will not cover additional work not identified when the arrangement was agreed.   Further, we may revise the fee to another reasonable amount, or charge fees on a time-costed basis at our standard rates, in the event that the factual material supplied by you and on which our fixed or capped fee was based proves to be inaccurate or misleading.

Where we are retained jointly by more than one client (our retainer letter being addressed to all such clients or each such client having received a retainer letter in substantially the same terms), each client will be jointly and severally liable to us for the full amount of all fees (including costs and disbursements) incurred on their collective behalf in that matter, regardless of the extent to which any one client benefits from our work and regardless of any agreement between those clients as to their respective contributions to our total fees. Any arrangement by which a client is responsible for only part of our fees in such a situation will be the subject of a separate agreement in writing between us and all the clients who retain us.

Disbursements

We will often incur direct expenses to third parties (“disbursements”) in the course of providing our services to you. These may include courier fees, external photocopying fees (including fees charged for binding, files and dividers), company search fees, land registry fees, other search fees, barrister’s fees, process server’s fees, experts/mediator’s fees, travel expenses, court fees, insolvency search fees, telephone (including conference call) charges, overseas lawyers’ fees, travel, accommodation, transcription fees, registration fees, agents fees, costs draftsman’s fees and bank charges.  We will charge those disbursements to you.

We will obtain your approval before incurring any substantial disbursements (including Counsel’s fees and expert’s fees) in litigation. We may also either require you to provide us (in advance of us incurring the disbursements) with sufficient funds to cover such disbursements or arrange for a person providing the services to invoice you direct.  If we pay any such disbursements on your behalf, we will invoice you for them and payment will be due from you on delivery of the invoice.

Billing and Payment Arrangements

We will send you an interim bill for our charges and expenses at regular intervals while the work is in progress. For non-property transactions, we normally render accounts on a monthly basis but may render accounts on a more or less regular basis.  We will send a final bill after completion of the work.  For property transactions, we normally render accounts at the end of the transaction, or the end of the retainer, whichever first occurs.

We may require that all of our costs and expenses are paid in advance as a pre-condition of completing any transaction that we are conducting on your behalf.

Where we are preparing for and/or conducting a court hearing on your behalf, we will require payment of all our anticipated fees, costs and expenses (including without limitation all barrister’s fees) in advance of the preparation and conduct of the hearing and will not carry out the required preparation nor conduct the hearing if requested amounts are not provided by the required dates. Failure to provide such requested funds may therefore adversely affect the outcome of your case, for which we will not be responsible.

We are required (by both the VAT Regulations and the Law Society) only to send a bill to our client (i.e. the party to whom this letter is addressed). We are not permitted to address our bill to any third party (even if a related group company of our client).  If you ask us to undertake work for another related company and we agree to do so, that other company will become our client and we will submit our bill to that company.  However, you will remain jointly responsible with that other company for payment of our bills.

Payment is due to us immediately upon receipt of each bill. We will charge you interest on the bill at the prevailing Supreme Court judgment rate from time to time (both before and after judgment), from the date one month after the date of the bill, if you do not pay each bill on time.  Interest will accumulate on a daily basis and will be compounded with monthly rests.

Where another party to a transaction or dispute has agreed or is ordered to pay all or any part of your legal fees, you will remain liable to us for those fees and we will not be required to seek payment from that other party. In any event, our invoice will be addressed to you only.

In litigation, even where the other side is ordered to pay your costs, the Court will not order the payment of all the costs you have incurred. It is commonplace that the Court’s order will be for the payment of only a proportion of the costs you have actually incurred and that can be a substantially reduced proportion.  However, you will remain liable to us for the full value of the fees you incur with us, including any amount that you are unable to recover from the other side.  If you become liable to pay the other side’s costs, you will remain liable to pay the costs you incur with us.

In the course of litigation, the Court may from time to time make orders or pronouncements about the proportionality of the parties’ costs and the ability of one party to recover their costs from the other. Such orders and pronouncements may apply to costs already incurred or to anticipated costs or both, but in no circumstances will this diminish your liability to us for the full value of the costs that you incur with us.  If you are required by a Court order or by the rules of Court to lodge an estimate of the costs and no such estimate is lodged you will be unable to recover your costs from the other side, but will remain liable to us for the full value of the costs incurred.

You may not remit to or deposit any funds in our client account without our express consent in writing. If our policy on this issue is contravened, we reserve the right to charge for any additional checks we deem necessary regarding the source of the funds.  If we are unable to satisfy ourselves as to the source of such cash funds, we may cease acting for you.

Where we receive any money from you or from a third party on your behalf, we shall be entitled to apply that money in payment of any amounts due to us from you.

We do not accept cash payments and you are not authorised to deposit cash directly with our bank. If you make, or attempt to make, an unauthorised cash deposit into any of our bank accounts then we will charge you for any checks we consider necessary in order ascertain the source of the funds or to comply with our money laundering obligations or any other legal or regulatory requirement. We may also cease acting for you.

Where we are required to pay money to you, it will be paid by bank transfer or where this is not possible, by cheque. We will not make payment in cash or to a third party.

Our client accounts

Any money received on your behalf will be held in one of our general client accounts at NatWest. Unless specifically agreed with us, funds will not be held in a separate account, but will be pooled with other funds held on behalf of other clients

In the event of any banking failure affecting any of our bank accounts it is unlikely that we will be held liable for losses which you incur as a result. In the event of a banking failure, we will make a claim under the Financial Services Compensation Scheme (“FSCS”) on behalf of clients who may be eligible for compensation under the scheme in respect of funds we are holding.  Where such a claim is made, you will be deemed to have consented to the disclosure by us to the FSCS of such information and supporting evidence concerning you and your money as may be necessary for that purpose, unless you indicate to the contrary in writing to us at any time.  If you do not consent to the provision of such material to the FSCS, we will still need to notify the FSCS of the amount of the account balance but you will not be able to receive compensation from the FSCS. You may not be eligible for compensation under the FSCS if you are a corporate body that does not constitute a small company for the purposes of the scheme.

The FSCS limits compensation to £85,000 for any one claimant against any one banking group (note that most UK banks operate under several different brand names, which are parts of the same group). Accordingly, if you hold other funds with a part of the same banking group which holds any of our client accounts, your eligibility for compensation in respect of funds held by us may be reduced.  By way of example, NatWest is part of the same group as Royal Bank of Scotland; if you hold £50,000 with the Royal Bank of Scotland and claim compensation for its loss in a banking collapse, the maximum amount for which you could be eligible in respect of any lost funds held in our NatWest client account is £35,000.  You should seek advice on this issue from your Independent Financial Adviser, your deposit-taking institution or the Financial Conduct Authority.

We shall be entitled to apply any money held in our client account, and any sum credited to our client account in lieu of interest in accordance with the paragraph below, in satisfaction of any amounts due to us from time to time.

We are required to account to you for a fair sum of interest on any client money we hold on your behalf. Unless you and we have otherwise agreed in writing, any money you send us will be deposited into our general client account held with National Westminster Bank plc. We receive no interest on any money deposited into that account and consequently the money we hold on your behalf will accrue no interest.

At your written request, we can arrange for your money to be held in a designated client deposit account and we shall account to you for the interest accrued on your money once that account is closed.  The rate of interest will vary from time to time and details about the applicable rate will be provided when the account is set up.  We shall be entitled to charge an administration fee for setting up a designated client deposit account on your behalf, details of which are contained in our retainer letter.

Storage and retrieval of papers, documents and data

We do not give any undertaking to store or retain your files and documents relating to client matters (whether paper or electronic) for a particular period of time following the end of your matter (or earlier if we cease to act for you for any other reason) unless you have made specific arrangements with us in accordance with this paragraph. Where we are required to retain a copy of your files and documents (whether paper or electronic) by applicable laws and professional obligations we will do so for the minimum period of time required. Retained files and documents may be destroyed by us at any time after the expiry of such period, without notice.

Without prejudice to the paragraph above, we will store one copy of our files relating to client matters (whether paper or electronic) for a minimum of six years from the date we cease to work on that matter, after which we will dispose of them (other than original title documents, deeds and certificates). Where we are required by professional rules to retain certain types of documents for longer periods we will not dispose of those documents before the expiry of that longer period without your consent.

We may choose to store some or all of the documents relating to your matter in electronic form. Where we do this, we may immediately destroy any paper version of the documents that we hold. We will not, however, destroy any material you expressly ask us to retain in paper form when you send it to us, any physical evidence or any original transaction documents executed with wet ink.

If you wish to ensure retention by us of your files and documents (whether paper or electronic) you should make specific arrangements with us in writing and we may charge for this service. We reserve the right to send to you any papers relating to your matter once we no longer need them.

Some documents which come into our possession may belong to you. We will normally return these documents (and title documents, deeds and certificates) at the earliest opportunity, subject to our right to retain possession as security for payment of sums owed to us by you.  However, it is likely that, over a period of time, less important records which are your property will be filed with our own papers.  Unless you previously request us to return them to you, we will destroy any such papers at the time that we destroy the other papers relating to your work.

Where access is required to documents that are in storage or you request documents to be sent to you or a person authorised by you, we may make a charge at our then current standard rates to reflect the handling costs and time involved. We will provide details of our rates of charge at any time if you so request.

Instructing Third Parties

If we instruct foreign lawyers or other professionals on your behalf, you will be their client and will be responsible for payment of their costs. If we pay the fees of any such foreign lawyer or professionals, we will invoice you for them and payment will be due from you on delivery of the invoice.

Confidentiality and Conflicts

We are bound by strict confidentiality rules and, accordingly, we will treat any commercially sensitive information about your business and affairs as confidential (unless we are required to disclose any information by law or any regulatory authority). External firms or organisations may conduct audit or quality checks on our practice. These external firms or organisations are required to maintain confidentiality in relation to your files.  These audit processes may require us to give the auditing firms or organisations access to files and information we maintain on your behalf or in relation to you or your affairs.

As part of the firm’s process of accreditation for the Law Society’s Lexcel standard, we are subject to periodic checks by outside assessors. This could mean that your file is selected for checking, in which case we would need your consent for inspection to occur. All inspections are, of course, conducted in confidence. If you prefer to withhold consent, work on your file will not be affected in any way. Since very few of our clients do object to this we shall assume that we do have your consent unless you notify us to the contrary. 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. Please do not hesitate to contact us if we can explain this further or if you would like us to mark your file as not to be inspected. If you would prefer to withhold consent please let us know in writing.

We reserve the right to use external agencies for typing, photocopying and printing. There may also be occasions when outsourcing of other activities is desirable but we will advise you before doing so.

Conflicts of interests occasionally arise, for instance, where we discover information while acting for other clients, but making a disclosure to you would conflict with our duty to them.

If we identify a conflict of interest we will notify you promptly. We may, however, be obliged to withhold information or terminate our engagement in relation to the particular matter.

Electronic Communications

All our staff have access to email and may, unless you instruct us to the contrary in writing, send information, advice and documents (whether confidential or otherwise) by non-encrypted email.

Use of non-encrypted email carries certain risks. Confidentiality may be breached, messages may be lost or delayed, or may not be read, and viruses may be transferred through the use of email.  We cannot accept responsibility for loss which you suffer as a result of the use of internet email for communication between us or between this firm and third parties.

We use software intended to filter out unsolicited and/or undesirable emails and this may from time to time inadvertently reject legitimate emails from you or in relation to work we are carrying out for you. We cannot accept liability for any emails not reaching their intended recipient as a result of such software.

Some employers enforce strict work place policies regarding the use of work email accounts for personal email. If we are acting for you in your personal capacity and you have provided to us your work email address, we cannot accept liability for any problems that may arise with your employer as a result of us sending emails to that address.

If you wish us to use a method of communication other than email, please contact the partner with responsibility for your affairs in order to make appropriate arrangements.

In the absence of a request from you to the contrary, we will send our invoices to you by email only to your usual email address.

Lien

We are entitled to keep all your papers, documents (including deeds) and any other property in our possession while there is money owing to us for our charges and expenses. This right is known as our “lien”.

If we release to you or to any other person or entity any of your property whilst money is owing to us, the released item will be held subject to our lien and must be returned to us immediately on request.

We shall be entitled to sell any property subject to our lien (by auction or private treaty) and shall be entitled to apply any funds held by us for any reason on your behalf towards payment of outstanding amounts due to us from you. The exercise of our lien or any of the rights contained in this clause 11 shall not be a breach of any duty owed by us to you (including without limitation any duty of confidentiality).

Termination

You may terminate your instruction to us by giving reasonable notice in writing at any time but we will be entitled to keep all your papers, documents and other property while there is money owing to us for our charges and expenses.

We may cease acting for you (without notice, if we deem appropriate) in the circumstances described below:

1. You fail to give us proper, clear and timely instructions;
2. You have lost confidence in our services;
3. You fail to give us the co-operation which we are reasonably entitled to expect;
4. Our continuing to act would be impractical, unethical or unlawful;
5. We have a conflict of interest;
6. You fail to provide us (or to replenish) sufficient money to be held on account;
7. You fail to pay any amount to us when due;
8. In any of the other circumstances expressly stated in these terms or in our retainer letter.

On termination by either of us:

1. You must pay our charges for work carried out and disbursements incurred up to the date of termination. Where we have agreed a fixed fee for our services and our retainer is terminated before our services are complete, we will be entitled to charge for a proportion of the agreed fee reflecting that proportion of the total services that have been supplied to you prior to the termination; and
2. We may keep all the papers which we are entitled to retain until all of our costs, disbursements and interest have been paid.

Limitation of Liability

Our liability to you in respect of breach of contract or breach of duty or negligence or otherwise arising out of or in connection with our engagement or the services we provide shall be limited to that proportion of the loss or damage (including interest and costs) suffered by you, which is ascribed to us by a court of competent jurisdiction allocating proportionate responsibility to us having regard to the contribution to the loss and damage in question of any other person responsible and/or liable to you for such loss and damage (loss and damage having the same meaning as in the Civil Liability (Contribution) Act 1978). This provision shall have no application to any liability for death or personal injury, any other liability which cannot lawfully be excluded or limited or to liability arising as a result of fraud on our part.

For the purpose of assessing the contribution to the loss and damage in question of any other person pursuant to the preceding paragraph, it is agreed that no account shall be taken of any limit imposed on the amount of liability of such person by any agreement made before the loss and damage in question occurred.

No individual member, employee or consultant of the firm contracts personally with you or assumes legal responsibility personally to you, for work performed on behalf of the firm.

All communications with you in the course of our work, whether oral or written and whether signed by a member, consultant or employee, and whether or not expressed to be signed by a “partner”, shall always be treated as having been sent or made on behalf of the firm.

By engaging us, you agree that any claim of any sort shall be brought only against the firm and that no claims will be brought personally against any of our members, employees or consultants who are involved in your work. To the extent permitted by law, no member, employee or consultant of the firm shall have any personal liability. This clause will not limit or exclude the liability of the firm for the acts or omissions of its members, employees or consultants.

You and we agree that sub-clauses 13.3, 13.4 and 13.5 are intended to benefit all members, employees and consultants of the LLP from time to time, each of whom may enforce those sub-clauses pursuant to the Contracts (Rights of Third Parties) Act 1999.

Money Laundering and the Proceeds of Crime Act 2002

Solicitors are under a professional and legal obligation to keep the affairs of clients confidential. This obligation, however, is subject to a statutory exception: recent legislation on money laundering and terrorist financing has placed solicitors under a legal duty in certain circumstances to disclose information to the National Crime Agency.  Where 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 this happens, we may not be able to inform you that a disclosure has been made or of the reasons for it.

The Act may also require that in certain situations where we have knowledge or suspicion of certain criminal activities, we refrain from following or delay implementing your instructions, without notifying you that this is happening. In such circumstances, we shall not be liable to you for any loss caused to the extent that such loss exceeds £3,000,000.

In some situations, the law requires that we obtain from a client further information concerning its identity or the identity of its ultimate beneficial owner, or that we obtain evidence of the source of any funds utilised or received by a client. We may not be able to carry out your instructions, or we may cease to act for you, if that information is not provided expeditiously.

In extreme cases, the Act may have the effect that we must cease to act for you, without explaining our reasons.

We may conduct credit searches in relation to you and any connected party.

Regulation of this firm

This firm is authorised and regulated by the Solicitors Regulation Authority under number 598557.

This firm is not authorised by the Financial Conduct Authority. However, we are included on the register maintained by the Financial Conduct Authority so that we can carry on insurance distribution activity, which is broadly the advising on, selling and administration of insurance contracts.  This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by the Solicitors Regulation Authority.  The register can be accessed via the Financial Conduct Authority website at fca.org.uk/firms/financial-services-register.

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 regulatory body of the Law Society. The Legal Ombudsman for England & Wales is the independent complaints handling body in respect of complaints against Solicitors.

Professional Indemnity Insurance

We are required by law to maintain professional indemnity insurance in respect of claims made against us by our clients. We will provide further details of the policy maintained by us pursuant to that legal requirement on request made in writing to our normal place of business.

Equality and Diversity

We are committed to promoting equality and diversity in all of our dealings with clients, third parties and employees. Please contact us if you would like a copy of our equality and diversity policy.

Transfer of Practice

If at any time the practice of this firm is transferred to a successor firm (including a company or another limited liability partnership) all work on which we have been instructed by you may be carried out by the successor firm and references to “we” and “us” and this “firm” or any other reference to Ingram Winter Green LLP in these terms shall from the date of the transfer be interpreted as references to the successor firm.

Data Protection

For the purpose of this Data Protection information, the term “data protection laws” shall mean all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation (EU 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and any other European Union legislation relating to personal data and all other legislation and regulatory requirements.

You and we agree that we will assist each other in complying with our respective obligations under the data protection laws and will ensure that the provision of personal data you us is fair and lawful. You agree that you will make our privacy notice (www.iwg.co.uk/about-us/privacy-notice/) available to your employees or other individuals whose personal data you share with us where this provision of information is required by the data protection laws.

We use the information you provide primarily for the provision of legal services to you and for related purposes, including:

1. updating and enhancing client records;
2. analysis to help us manage our practice;
3. statutory returns; and
4. legal and regulatory compliance.

Our use of that information is subject to your instructions, the data protection laws 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.

Outsourcing

On occasions, we may enter into arrangements with third party services providers by which we outsource the provision of certain services. Where we do so, we may transfer confidential information pertaining to you to our outsource service provider.  However, we will take steps to ensure that the confidentiality of your information is protected by any such service provider.  If you do not wish us to provide your confidential information to outsource service providers, please notify us as soon as possible in writing.

Assignment

Our client will be the party to whom our retainer letter is addressed and we will not be responsible for providing services to anyone else.

You may not assign the benefit of the contract between us to any third party nor may you assign any rights or causes of action arising pursuant to the contract between us.

Amendments

Notwithstanding any benefits or rights conferred by this agreement on any third party by virtue of the Contracts (Rights of Third Parties) Act 1999, you and we may agree to vary or rescind this agreement without any third party’s consent.

Governing Law and Jurisdiction

The contract between us shall be governed and construed in all respects by English law.

The courts of England and Wales shall have jurisdiction in respect of any dispute between us (including any dispute in respect of our services or amounts owed by you to us). You may only bring proceedings against us in the courts of England and Wales. We may bring proceedings against you in any other jurisdiction, including (without limitation) any jurisdiction in which you are resident, domiciled, have assets or are incorporated and you unconditionally submit to all such jurisdictions.