TERMS OF BUSINESS
The following terms of engagement apply to all work carried out by Kirkwoods Solicitors except as otherwise agreed.
The expression “we”, “us”, and “our” refer to Kirkwoods Solicitors and “you” and “your” refer to our client.
These Terms of Business will apply to any services which we provide to you and will usually be supplemented by a client care letter dealing amongst other things with the specific services to be provided and the fees payable.
These Terms of Business may be revised from time to time and a copy will be sent to you to replace these, and the revised Terms of Business will apply from the date you receive them.
You are of course free to terminate the arrangement between us if you do not accept the revised Terms of Business.
We will not start work on your matter, except in the most urgent cases, until we receive acceptance of these terms from you, which will be treated as your consent to start work.
Your continuing instructions will amount to your acceptance of these terms and conditions of business as amplified or amended by the terms of our opening letter to you (our ‘Client Care Letter’)
Unless otherwise agreed these terms will apply to any future instructions you give us.
Unless advised otherwise, we will assume that we are authorised to accept instructions from any person who we reasonably believe to have your authority to give us instructions (for example a wife on behalf of a husband and vice versa in a joint transaction) and that we may act on instructions given orally.
- Our Services
- Responsibility for Work
- Contacting Us
- Professional Indemnity Insurance
- Our Charges
- Billing Arrangements
- Limitation of Liability
- Equality and Diversity
- Data Protection
- Money Laundering
- Mortgage Fraud
- Criminal Finances Act 2017
- Help to Buy Scheme
- The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
- Consumer Protection Regulations
- Email Communications
- Investment, Insurance and Financial Services
- Excluded Areas of advice
- Legal Aid
- Storage of files
- Enforcement and Governing Law
- Future Instructions
- Regulatory Information
- Our Services
Scope of our Services
At the outset of your matter we will agree an appropriate level of service with you as follows: –
- We will give you the best information possible about the likely cost of your matter at the outset and throughout your matter
- We will update you by telephone or in writing with progress on your matter regularly as agreed. We may update you more or less frequently as appropriate to your case.
- We will communicate with you in plain language.
- We will explain to you in writing (and by telephone where appropriate) the legal work required as your matter progresses.
- We will update you on the likely timescales for each stage of your matter and any important changes in those estimates.
Our responsibilities will include:
- We will review your matter regularly.
- We will advise you of any relevant changes in the law.
- 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.
Your responsibilities will include:
- You will provide us with clear, timely and accurate instructions.
- You will provide us with all the documents required to deal with your matter in a timely manner.
- You will safeguard any documents that are relevant to your matter.
- You will advise us in advance if there are periods during which you will not be available.
- You will advise us immediately of any change in your address or circumstances.
- You will advise us immediately if any of the information you have provided, at any stage, is or becomes false, inaccurate or misleading.
You agree that you do not require us to provide you advice or further services in relation to any aspect outside of the scope of the services so agreed.
Where we are jointly instructed by you and another client to act in a matter, we will assume that either of you are authorised to give us instructions, unless either of you advise us otherwise. In addition, as matters progress, we may need to act on instructions of other people from whom we consider it is reasonable to take instructions to progress the matter within the timescales set. Unless informed of any change, we will assume that this remains the case until our work is completed.
Provision of Information
To assist us in carrying out the work as efficiently as possible, you will need to ensure that all information provided is to the best of your knowledge complete, accurate and up to date.
You should also notify us of any changes or variations to that information which may arise after the date it is passed to us and of any new circumstances that might be relevant to the work we are undertaking.
- Responsibility for Work
The name of the person who will carry out most of the work in this matter and, if different, the Solicitor with overall responsibility for your matter will be confirmed in our Client Care Letter. They may from time to time, be assisted by other members of our team i.e. trainees, paralegals etc. However, you will be notified of this either in the Client Care Letter or in writing when applicable.
We realise that it is important not to change the people who are handling your work but sometimes this cannot be avoided. If a change is necessary, we will inform you promptly of the reason and who will take responsibility for your work.
Sometimes we ask other companies or people to do work for us (such as typing, photocopying or other work) on our files to ensure that it is done promptly. We will always seek a confidentiality agreement with any outsourced providers. If you do not want your file to be outsourced, please tell us a soon as possible.
We aim to offer all our clients an efficient and effective service. However, should there be any aspect of our services or bill with which you are dissatisfied, please raise the matter with the person with day to day conduct of your matter or, if you feel it necessary, with Mr Richard Bridges the firm’s Client Care Partner.
We will look into your complaint carefully and promptly.
If you are not satisfied with our handling of your complaint, you can ask the Legal Ombudsman at PO Box 6806, Wolverhampton WV1 9WJ to consider the complaint. Alternatively, you can contact them on 0300 5550333 or firstname.lastname@example.org. The Legal Ombudsman accepts complaints from individuals and small businesses, charities or associations. Normally, you will need to bring a complaint to the Legal Ombudsman within six months of receiving a final written response from us about your complaint and 6 years from the date of the act or omission giving rise to the complaint or alternatively 3 years from the date you should reasonably have known there are grounds for complaint (if the act/omission took place before 6 October 2010 or was more than 6 years ago)..
For further information, please visit their website www.legalombudsman.org.uk.
A complaint to the Legal Ombudsman can only be made by one of the following:
- An individual;
- A micro- enterprise as defined in European Recommendation 2003/361/EC of 6 May 2003 (broadly, an enterprise with fewer than 10 staff and turnover or balance sheet value not exceeding 2 million Euros;
- A charity with an annual income less than £1 million;
- A club, association or society with an annual income less than £1million;
- A trustee of a trust with a net asset value less than £1million; or a personal representative or the residuary beneficiaries of an estate where a person with a complaint died before referring it to the Legal Ombudsman.
If you do not fall into one of these categories, you should be aware that you can only obtain redress by using our Complaints Handling Procedure or by mediation or arbitration, or by taking action through the courts
Kindly note that you have the right to object to your bill by making a complaint to the appropriate body referred to above and/or by applying to the Court for an assessment of the bill under Part III of the Solicitors’ Act 1974 and, if all or part of our bill remains unpaid, we may be entitled to charge interest.
We shall not be obliged to comply with the complaints information above in relation to any dispute in which we seek: –
- an order or award (whether interim or final) restraining you from doing any act or compelling you to do any act; or
- a judgment or award for a liquidated sum to which here is no arguable defence (provided that the exception shall cease to apply and the dispute may be referred to arbitration on the application of either party if the court decides that you should have permission to defend the claim); or
- the enforcement of any agreement reached, or any binding order, award, determination or decision made pursuant to the complaints paragraph above; or
- nor shall anything in this paragraph inhibit us at any time from serving any form of demand or notice or from commencing or continuing with any bankruptcy, winding up or other insolvency proceedings.
Nothing in this Terms of Business shall prevent you at any time from referring any Matter to the body or bodies for the time being charged with the regulation of solicitors.
For further information please ask to see our Complaints Handling Procedure.
- Contacting Us
Our office is located 41a Church Road Stanmore Middlesex HA7 4AB. The normal hours of opening are between 09.00 and 17.30 on weekdays. Appointments can be arranged outside those hours when essential to the interests of a client.
Alternatively, you can email us email@example.com or call us on 020 8954 8555.
- Professional Indemnity
In the interests of our clients, we maintain professional indemnity insurance to a total level of two million pounds (£2m).
In accordance with the disclosure requirements of The Provision of Services Regulations 2009, our professional indemnity insurer is General Insurance Company (UK) Ltd of 4th Floor 67 Lombard Street London EC3V 9LJ.
- Our Charges
Unless and until either an alternative fee arrangement has been agreed (e.g. fixed fee) and confirmed in writing by us, the basis for calculation of our fees is primarily by reference to the time spent by the fee earner(s) dealing with the matter (including any time which we spend travelling) and will be charged at an hourly rate.
All PagesThe hourly rates or alternative fee arrangement applicable to your matter will be confirmed to you in our Client Care Letter. We may from time to time review our charging rates and will notify you immediately in writing of any changes which are applicable to your matter.
Our current rates from time to time may not be appropriate in cases of exceptional complexity or urgency or where specialist knowledge is required. Where it becomes apparent that such circumstances exist, we will notify you of this.
Where we must undertake due diligence, we reserve the right to charge for any such searches on a time expensed basis. We will provide an estimate of these costs together with an invoice, where applicable.
All fees are quoted exclusive of VAT and disbursements, which will be added where appropriate.
Matter not concluded
Unless otherwise agreed in writing, our fees are payable whether or not a matter is successfully concluded. If any matter does not proceed to completion for any reason during the period in which we are instructed, then we will be entitled to charge for work done on the basis set out above but, at its absolute discretion, we may waive part or all such entitlement to fees.
Estimate of Costs
We will provide you at the outset of a matter with the best possible information on our costs and will update this information as the matter progresses. As you will appreciate however, a matter can often end up taking quite a different shape from that envisaged at the time when it starts and the legal advisers are instructed. Accordingly, it can be difficult to come up with a clear estimate. However, as matters progress, we should be able to provide you with more detailed estimates of our likely costs and will keep this under review with you.
Whilst it is often not possible to estimate charges in advance, it is open to you to notify us of any limit which you wish to impose on our charges after which further reference will be made to you. We will advise you when it appears that any costs estimate, or limits are close to being exceeded. Notwithstanding any estimates or costs limits however, the final bill will be a product of the amount of time our fee earners spend on the matter and our agreed fee rates; any estimates provided are neither intended to be a cap nor a target billing figure. Therefore, if significant further work is required in addition to that currently envisaged or if the timetable is extended significantly, our fees will be greater than our indicative estimates. Should it become apparent at any time during the course of the matter that significant further work will be required, we shall of course let you know.
In property transactions, in the administration of estates and in transactions involving a substantial financial consideration or benefit to the client, fees may be calculated both by reference to the time spent /fixed fee and also by reference to a value element based on e.g. the price of the property; the amount of the mortgage advance; the size of the estate; or the value of the financial benefit. The value element reflects the importance of the transaction and the consequent responsibility falling on us as a firm. We will tell you in advance if a value element will be included, how it will be calculated and the amount to be charged.
Third party responsibility
In certain circumstances, there may be an expectation that a third party (including an insurer) will pay your costs. In the event that the third party does not pay the sums due, you will be required to pay the outstanding costs.
We may incur certain expenses your behalf, (for example, such items as court fees, counsel’s fees, search fees). You will have to pay those expenses or reimburse us for them in addition to our fees. VAT is payable on certain disbursements.
If we receive a commission from a third party arising from work we are doing for you, we will credit you with the commission unless you have agreed otherwise, or the amount is less than twenty pounds (£20) (excluding VAT).
- Billing Arrangements
Timing of bills
We will normally send you a final bill for the settlement of our services at the end of the matter. However, if the matter is ongoing, we will render interim bills at agreed intervals.
Payments on account
We will ask you to pay sums of money from time to time on account of the anticipated fees. We will offset any such payments against your final or interim bill as relevant.
Total fees may be greater than any advance payments.
Settlement of bills (interim and final)
Accounts are to be paid by you when due, whether or not the amounts concerned may ultimately have to be paid by another party. Bills are to be settled in full within 14 days of receipt. We reserve the right to charge interest on any outstanding amounts at the rate of 4% above the base rate of National Westminster Bank from the date the bill was issued.
Should our bill not be paid and the matter is passed to our fee recovery department then we reserve the right to charge interest from the date of the bill in accordance with s69(1) of the County Court Act 1984 irrespective of whether any legal proceedings are issued or not.
Should you dispute the bill you may be able to request an assessment of the bill by the Courts under Part III of the Solicitors Act 1974. Alternatively, you can raise the matter with us through our Complaints Handling Procedure, details of which are above.
If any payment on account is not made or a bill is not settled in accordance with these terms, we reserve the right to decline to act further for you. You should be aware that this may prejudice your matter.
Where the firm is instructed on a matter by more than one entity or individual, then settlement of any bill will be on a joint and several liability basis.
Lien over papers and documents
Following the conclusion of your matter, we are entitled to retain your file of papers and documents while there is money owing to us for fees.
We operate a client account facility which allows for money to be held or transferred in relation to a matter we are working on. However, the facility is operated at our discretion and any unauthorised receipts will be held pending further investigation or returned to the sender. Therefore, we ask that you give us advance warning of any receipts.
It is our policy to only accept cash up to £1000. If you circumvent this policy by depositing cash direct with our bank, we reserve the right to charge for any additional checks we deem necessary regarding the source of the funds. Where we have to pay money to you, it will be paid by cheque or bank transfer. It will not be paid in cash or to a third party.
We may need to hold money in our client account for your matter. We can only hold money which is necessary for the transaction we undertake on your behalf. If we hold money on your behalf, interest will be calculated and paid to you in accordance with the SRA’s Accounts Rules 2011. Please ask to see our interest policy for more information.
- Limitation of Liability
Reliance by third parties
Advice rendered by us is provided for the purpose of the instructions to which it relates and for your benefit. It may not be used or relied on for any other purpose or by any person other than you without our prior agreement.
Liability in respect of other parties
We will use all reasonable endeavours to ensure that all information provided by us is accurate, but we cannot account for the accuracy of information provided by or obtained from third parties. We shall not be liable for any decision made or action taken by you or others based upon reliance on or use of information or advice provided by or obtained from third parties.
Where we are asked to recommend the services of another advisor or service provider, we will do so in good faith, but without liability and without warranting the ability or standing of that person or firm. We will not be responsible for the quality of the services provided by that person or firm.
Limitation of our liability
Our liability to you for a breach of your instructions shall be limited to the cost of our legal fees any reasonable disbursements incurred to the date of the breach unless we expressly state a higher amount in the letter accompanying these Terms of Business. We will not be liable for any consequential, special, indirect or exemplary damages, costs or losses or any damages, costs or losses attributable to lost profits or opportunities.
We can only limit our liability to the extent the law allows. In particular, we cannot limit our liability for death or personal injury caused by our negligence.
Limitations of Liability for Client Money Held
The Financial Services Compensation Scheme “FSCS” is the UK’s statutory compensation scheme for customers of financial services firms. The FSCS can pay compensation to consumers if a company is unable, or likely to be unable, to pay claims against it.
In the event of a banking failure it is unlikely that the firm would be held liable for any losses of client account money.
If any deposit provider which holds money that we have deposited on your behalf becomes insolvent, you agree that we may, where applicable, disclose to the Financial Services Compensation Scheme (“FSCS”) all relevant details in our possession about you and the money that we hold on your behalf with such a deposit provider. However, if you do not wish us to make any such disclosure, please notify us in writing. Please note that by withholding consent to our disclosure of your details to the FSCS in such circumstances, you may forfeit any right you may have to receive compensation from the FSCS.
FSCS compensation for deposits is limited to a total of £85,000 for the total amount held by any individual with a deposit provider including with any brands or names under which it trades, and which share its banking authorisation. The £85,000 limit includes money we have deposited on your behalf added together with all of your own personal deposits/savings (if any). Further information regarding the FSCS can be found on their website www.fscs.org.uk or telephone 0800 678 1100 or 0207 741 4100.
We currently hold our client account funds in National Westminster Bank. The £85,000 Financial Services Compensation Scheme (FSCS) limit will apply to each individual client so if you hold other personal monies yourself in the same bank as our client account, the limit remains £85,000 in total, so it may be advisable to check with your own bank as some banks now trade under different trading names. In the event of a bank failure you agree to us disclosing details to the FSCS.
Since 3rd July 2015, the FSCS also provides a £1,000,000 protection limit for temporary high balances held with a bank, building society or credit union if it fails. Further details relating to what constitutes a temporary high balance and the rules relating to the protection can be found at www.fscs.org.uk. In the event of a bank failure you agree to us disclosing details to the FSCS.
We may receive undertakings from another firm of lawyers during the course of a matter or transaction for you. We do not accept any liability in the event such other firm fails to fulfil such undertaking in whole or in part. This will not prejudice your ability to pursue such other firm through the Courts.
Any work that we do for you may involve tax implications or necessitate the consideration of tax planning strategies. Unless very specifically contained within the scope of work (paragraph 3), we will not advise you on the tax implications of a transaction or the likelihood of them arising. If you have concerns in this respect, please raise them with us immediately.
We will not be liable to you for any loss, damage or delay arising out of the firm’s compliance with any statutory or regulatory requirement. Equally, we will not be liable for any consequential, special, indirect or exemplary damages, costs or losses or any damages costs or losses attributable to lost profits or opportunities.
Our liability in the event of a professional negligence claim against this matter is limited to £2,000,000.00 our liability shall not be limited in relation to any matter for which we are unable to limit our liability by law such as death or personal injury caused by our negligence.
Unless otherwise agreed by us in writing, if we receive any sums to hold on your behalf (whether received directly from you or from a third party) then we may deposit such money into an account or accounts with any bank or financial institution (a “deposit provider” which expression shall include bank, financial institution or clearing house through which transfers are made) of our choosing. We confirm that we comply with any applicable laws and any applicable rules of a regulatory authority in respect of the making of any such deposits.
We shall not be liable for any loss which you or any third party may suffer in connection with the insolvency of any deposit provider with whom we have deposited funds or through whom transfers are made, save if and to the extent that any such loss was caused by or contributed to by any breach by us of the preceding paragraph.
An actual or potential conflict between your interests and the interests of another client of the firm may arise during the course of a matter. If this situation arises during our dealings with you, we will discuss the position with you and determine the appropriate course of action.
- Equality & Diversity
This firm is 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.
Consistent with our internal policies and procedures, we will not discriminate in the way we provide our Services on the grounds of age, disability, gender re-assignment, marriage and civil partnerships, pregnancy and maternity, race (including colour, nationality, including citizenship, ethnic or national origins), religion or belief, sex, sexual orientation.
- Data Protection
We are registered under the Data Protection Act and will deal with data held in accordance with our obligations under the Act.
What personal information we process
- Personal details such as your date of birth, address, National Insurance Number, telephone number and email address.
- Identity information such as your passport, driving licence, utility bills or national identity card.
- Credit history and records relating to you, your partner or anyone else you are financially linked with (we obtain this information from credit reference and fraud prevent agencies).
- Family, lifestyle, financial and social circumstances.
- Financial details such as your income and information about your bank accounts.
- Employment/self-employment details.
- In some instances, special category data if you have disclosed this to us voluntarily (which includes ethnicity, nationality and medical history).
How we use your personal data:
When your file is open, the personal data is necessary in relation to the purpose for which it was originally intended. We process your personal information to fulfil our contract with you, or where you or we have a legitimate interest in doing so, where otherwise permitted by law, or to comply with applicable law and regulation.
We use the information you provide primarily for the provision of legal services to you and for related purposes including:
- Service provision and internal processing (i.e. to assess and/or provide and to service your matter).
- Management of relationship (e.g. to develop your relationship with us).
- Resolving queries.
- Training and service review (e.g. to help us enhance our services and the quality of those services).
- Statistical analysis (e.g. to help us enhance our products and services or delivery channels to keep costs down).
- Complying with legal obligations (e.g. to prevent, investigate and prosecute crime, including fraud and money laundering).
We will process your information in order to meet our contractual obligations to you, were have a legitimate interest to do so, where we are permitted by law or to comply with applicable laws and regulation.
Our use of that information is subject to your instructions, the Data Protection Act 2018 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.
When your matter is completed and / or your file is closed, we may still process your personal information where we have a legitimate interest in doing so, where we are permitted by law, or to comply with applicable laws and regulation.
Examples of such instances will include:
- Complying with legal obligations for statutory and regulatory requirements including for example, HMRC Returns, complaint handling, anti-money laundering, reporting to our regulatory body – the Solicitors Regulation Authority;
- Archiving and Storage of your file for the periods outlined in our Retention Policies. (Archiving and Storage of personal data is still classed as a processing activity even though it is not being regularly accessed and remains securely locked away); and
- Our legitimate interests to conduct conflict of interest checks, statistical analysis and research to help us enhance our products and services.
How we share your Information:
We may share your personal data with a range of organisations which enable us to fulfil our contract with you, or where we have legitimate interests to do so, or otherwise are required by applicable law and regulation. For example:
- The maintenance of our computer systems is outsourced to a UK-based IT company. Information of your matter will be retained on our servers which are situated in our Stanmore offices.
- Our outsourcing company, who are based outside the European Economic Area (EEA) who may, from time to time, process some of your information on our behalf as part of the conveyancing transaction.
- Our case management software provider who provide and manage our client database programme.
- We may also share your data with our governing body, including the Law Society, the Solicitors Regulation Authority and various law enforcement agencies if requested by them.
We can provide more details specific to your personal data on request.
You have a right to complain to the Information Commissioner’s Office (https://ww.ico.org.uk ), which regulates the processing of personal data. You may also seek a judicial remedy.
Access to Your File and Personal Information
On occasions it is necessary for us to allow third parties access to a random sample of client files. Examples of such a requirement might include an annual audit of our business under the Solicitors Accounts Rules; inspection of our business by the Solicitors Regulatory Authority or annual assessments of our performance against practice management standards such as Lexcel, the Wills & Inheritance Quality or the Conveyancing Quality Standard.
On other occasions we might deem it necessary to outsource some of the work on your matter to individuals or businesses separate to ours. This might include instructing experts, counsel, costs draftsman or typing services.
Other businesses and individuals may be used by this firm to support its operations and its services to our clients. These might include business consultants, archiving and document destruction services, copying services, computer/website services amongst others. In the conduct of their work on our behalf they might have indirect or direct access to your files or information contained in your files.
In all these circumstances we take steps to ensure that any such third parties are of the highest reputation and the confidentiality of your files is assured through strict security measures and confidentiality contracts. Your acceptance of these terms is taken as approval of such arrangements as we feel appropriate for the conduct of your matter and the running of this business
- General Data Protection Regulation (GDPR)
We owe you a duty of confidentiality in respect of information relating to you which we obtain during the course of our retainer. All such information will be regarded and kept confidential at all times unless you instruct us to disclose information or except in the circumstances set out below.
Our duty of confidentiality to you is subject to any disclosures we are required to make in good faith to the police, governmental, regulatory or supervisory authorities in relation to any statutory or regulatory obligations. In particular, we are required, without your knowledge or consent, to report any awareness or suspicion of money laundering in relation to the proceeds of any crime. We can also be ordered by Government Agencies to disclose information and answer questions about your private affairs, again without your knowledge and consent.
Sometimes we ask other companies or people to do other work on our files to ensure this is done promptly. If you do not want your file to be outsourced, please tell us as soon as possible.
We may use the information which you provide, or which we obtain through our dealings with you, or others for the provision of our services to fulfil our contractual obligations to you or the legitimate interests of you, ourselves and others.
Where we work with other companies, we ensure that confidentiality agreements are in place to protect the information and data we hold about you. We have a legitimate interest in doing this. If you do not wish for your file to be outsourced, please notify us when signing and returning a copy of your Client Care Letter.
We may store information about you using cloud-based technology. We believe we have a legitimate interest in acting in this way and take every possible precaution to protect your personal information. Should you prefer your data not to be stored in this way, please express your intention to us in writing before we commence work on your matter. We may use it to administer your account with us, including tracing and collecting any debts.
Occasionally, our files may need to be examined for legitimate interests with our insurers, external auditors (for quality purposes) or external advisers (who assist the firm in maintaining quality, compliance and risk). In particular, our files may need to be assessed for quality purposes by the SRA or the Law Society under the accreditation schemes the firm has in place (Conveyancing Quality Scheme, Lexcel and the Wills and Inheritance Quality Scheme).
Your file may be one of a sample which is to be assessed. Alternatively, there may be instances where the firm is conducting audits for the purpose of mergers and acquisitions. Therefore, we request consent for your file to be reviewed by an assessor (please note that any external firms or organisations are required to maintain confidentiality in relation to your files). As the majority of our clients do not object to this, we would ordinarily propose to presume to have your consent as we have a legitimate interest in processing your data in this way unless you notify us in writing to the contrary. If you wish to withhold your consent, or since giving consent to withdraw or amend it, please make a note of this on the signed copy of the client care letter that you return to us.
- Money Laundering
In accordance with the requirements of the Data Protection Act and Money Laundering Regulations, we confirm:
- Kirkwoods Solicitors is the data controller; and
- Bradley Kramer is the nominated representative/ data protection manager; and
- We will only process any documentation or personal data received from you in respect of client due diligence for the purposes of preventing money laundering and terrorist financing unless (a) use of the data is permitted by or under any enactment or (b) you give your express consent for the documentation or personal data to be used for other forms of processing.
Under the provisions of our statutory obligations, we are under a strict duty to report any circumstances where we know or suspect that a client or matter is involved in money laundering or terrorist financing, to the National Crime Agency. Under these circumstances, we may be precluded from informing you of the disclosure or seeking your consent. If we make a disclosure, we may also have to stop working on your matter for a period of time and may not be able to tell you why.
We are also under a duty to identify and verify our clients for the purposes of anti-money laundering legislation. We may also be required to carry out background checks on our clients and to make detailed enquiries as to the source of funds being used in relation to transactions on which we are instructed to advise. This is to ensure that the policy adopted worldwide by Financial and Government Authorities to prevent the use of laundering systems to disguise the proceeds of crime is achieved.
We require you to provide us with proof of your identity. We may delay, decline or cease to act for you if we have requested to see proof of your identity, but there has been an unreasonable delay in providing it.
Each individual client is required to provide proof of identification and address. We would normally need to see original documents; where this is not possible please speak to your matter handler who will advise further.
If you are a new or existing body corporate client, not listed on a regulated market who has not previously supplied information, we will require company/ organization full name, registration number, Registered address and, if different, principal place of business, Memorandum and Articles of Association or other governing documents, names of the Board of Directors or member of your management body and its senior management, documentation in respect of each Director and shareholder with 25% or more shareholding in the company.
We are required to retain records of the identification obtained.
We reserve the right to terminate our agreement with you if you fail to provide adequate documentation or, if we are instructed to do so by Financial and Government Authorities.
Under the provisions of the Proceeds of Crime Act 2002, we may be required to report to the relevant authorities if at any time we become aware of or suspect (whether from you or any other person) the existence of the proceeds of crime in relation to any services on which we are engaged. Our obligation to make such a report will, in certain circumstances, override our duty of solicitor/ client confidentiality and we may not be permitted to inform you whether or not we have made, or might intend to make, such a report.
If as a result of meeting our statutory obligations, or executing our internal procedures put in place to meet those obligations in good faith, if we cause you loss, damage or delay, our liability to you will not exceed the minimum level of Professional Indemnity insurance cover as specified by the SRA Indemnity Insurance Rules 2013.
- Mortgage fraud (if applicable)
Where we are also acting for your proposed lender in a transaction, we have a duty to fully reveal to your lender all relevant facts about the purchase and mortgage. This includes:
- any differences between your mortgage application and information we receive during the transaction; or
- any cash back payments or discount schemes that a seller is giving you.
- Criminal Finances Act 2017
Kirkwoods Solicitors is committed to promoting compliance with the requirements of the Criminal Finances Act 2017 within its practices as well as in those areas in which it has influence. The firm does not tolerate tax evasion, or the facilitation thereof in any circumstances, whether committed by or facilitated by a client, personnel or associated persons/companies.
- Help to Buy Scheme
The Help to Buy ISA Scheme was launched by HM Treasury on 1st December 2015. If you have taken out a Help to Buy ISA, then you may be eligible for a bonus payment of up to 25% of the closing balance of the Help to Buy ISA subject to a minimum bonus payment of £400 and a maximum of £3000 and provided that you and the property you are purchasing meet the eligibility criteria set out in HM Treasury ISA Scheme Rules. The fee earner with conduct of your matter (who under the Help to Buy ISA Scheme is known as the Eligible Conveyancer) will be able to advise you on eligibility and, if appropriate, will undertake the necessary process to apply for any bonus payment. If you are purchasing a property through the Help to Buy ISA Scheme, HM Treasury will be the Data Controller of any relevant personal data that is given, via the Eligible Conveyancer, to HM Treasury and to the Administrator and/or any sub-contractor of HM Treasury or of the Administrator, for the purposes of the Help to Buy: ISA Scheme. The information will be disclosed to HM Treasury and the Administrator for the purposes of verifying the eligibility of a Help to Buy: ISA Bonus payment and payment of Bonus funds, carrying out audits of Eligible Conveyancers and any investigations or compliance work in accordance with the Scheme Rules. By signing and dating these Terms of Business (or) the accompanying client care letter (or) the buyer questionnaire, you agree to us providing all necessary Relevant Personal Data to HM Treasury and to the Administrator and/or to any sub-contractor of HM Treasury or of the Administrator and to the processing of your Relevant Personal Data by any of the aforementioned parties.
- The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
If we have not met you either in person (because, for example, instructions and signing of the contract documentation is taking place by telephone/mail, e mail or on-line – i.e. by way of a “distance” contract) or we have taken instructions and a contract has been concluded away from our business premises (because, for example, we have met with you at home – i.e. by way of an “off-premises” contract) and the contract was entered into on or after 14 June 2014, you have the right to cancel this contract within 14 calendar days of entering into the contract without giving any reason.
The cancellation period will expire after 14 calendar days from the day of the conclusion of the contract.
To exercise your right to cancel, you must inform us of your decision to cancel this contract by a clear statement in writing e.g. a letter sent by post, fax or email
Post: 41a Church Road Stanmore HA7 4AB
Fax: 020 8954 4124
If you exercise this option, we will communicate to you an acknowledgement of receipt of such a cancellation on a durable medium (e.g. by email) without delay.
To meet the cancellation deadline, you must send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
Should you require the work to be commenced within the 14 calendar days cancellation period, you must provide your agreement to that in writing, by e mail, post or fax to enable us to do so. By signing and returning the client care letter, you are providing your agreement in writing to enable us to commence work within the 14 calendar days cancellation period. Where you have provided your consent for work to commence within the 14 calendar days cancellation period and you later exercise your right to cancel, you will be liable for any costs, VAT and disbursements incurred up to the point of cancellation. Unless you make an express request for us to commence work within the 14 days period (i.e. by signing and returning the client care letter we will not be able to undertake any work during that period.
- Consumer Protection Regulations (CPR)
The Consumer Protection from Unfair Trading Regulations (as amended) regulate transactions between traders and consumers and prohibit trading practices that amount to unfair commercial practices and misleading acts and omissions. Neither you, the client, or us, your legal representative, must mislead a buyer or tenant either by providing incorrect or ambiguous information, or by omitting to provide material information about the property you are selling. Certain information will be revealed through searches and other enquiries of public databases, surveys and valuation reports. However, you must disclose to us any known defects and other material adverse matters relating to the property known to you and failure to do so may mean that, in certain circumstances, the buyer or tenant would have rights of redress against you. We encourage You to make all known disclosures as early in the transaction as possible to prevent delays. If we become aware of any such existence of material information, and you decline to authorise disclosure to the buyer or tenant, then we would have to consider whether it was possible to continue to act for you as the CPR’s impose a duty to act fairly towards you as our client and also towards third parties, especially those that are unrepresented.
- E-mail Communications
If you have the necessary facilities, we will use E-mail for communication with you unless you tell us not to.
There are some specific points of which you should be aware:
- Communications over the Internet are not completely secure. You will have to guide us as to what should or should not be sent over the Internet.
- Viruses or other harmful devices may be spread over the Internet. We take reasonable precautions to prevent these problems by use of a firewall and virus checking software. If we are to communicate by E-mail, it is on the basis that you will do likewise.
We will aim to communicate with you by such method as you request. If you have any particular requirements, please make this clear at the outset of the matter. Unless you withdraw consent, we will communicate with you and others when appropriate by email, but we cannot be responsible for the security of correspondence and documents sent in this way. We do not currently encrypt our outgoing email messages. If you provide us with an email address, we assume that you are happy for us to communicate with you via email and to store your emails.
- Investment, Insurance Distribution and Financial Services
We are not authorised by the Financial Conduct Authority (FCA). However, we are included on the register maintained by the FCA 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 www.fca.org.uk/register/
In the event of our recommending an insurance policy (for example for defective title) we confirm:
- That the market would be researched before any recommendation is made, and
- That we would provide a “demands and needs” statement based on the information provided by you, along with reasons for recommending a policy.
In addition, although this firm is regulated by the Solicitors Regulation Authority, we are not authorised by the FCA for the purposes of the Financial Services and Markets Act 2000 (FSMA) to provide you with certain advice or services in relation to certain securities and other “investments” covered by that Act. This means that, whilst we are able to undertake for you some activities in relation to such “investments” which arise out of, or are incidental or complementary to, the legal services we provide for you, there will be occasions when you will need a person who is authorised by the FCA to give you the necessary investment advice. On these occasions, we will be happy to refer you to appropriate sources, if required.
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 SRA is the independent regulatory body of the Law Society and the Legal Ombudsman is the independent impartial complaints handling body established by the Legal Services Act 2007.
- Excluded Areas of Advice
We are not qualified to advise you on the tax implications, planning implications or the environmental implications of any transaction. If such advice becomes necessary, you will have to seek an alternative source of expertise, but we will discuss this necessity with you and do what we can to assist in identifying an appropriate advisor.
- Legal Aid
We do not undertake legal aid work and it is important that you are aware of Legal Aid. For more information please discuss this with the person attending to your case (they will be able to confirm if Legal Aid will be relevant to your type of case and if you may qualify). Alternatively go to the website www.gov.uk/legal-aidor telephone them directly on 0300 20 2020.
Termination by you
You may withdraw your instructions at any time by written notice to us. We will be entitled to keep all your papers and documents whilst there is money owing to us for our fees and expenses.
You have the right to withdraw your instructions, without charge, by notice in writing to us at any time within fourteen days of us receiving your instructions. Please note that this right will not cease if we start work within that time with your consent, but you will be responsible for any proportionate fees we have incurred.
You may terminate your instructions to us in writing at any time, but we are entitled to keep all your papers and documents while any money is owing to us for fees or expenses.
Termination by us
In some circumstances, we may consider that we ought to cease acting for you. We will only decline to act further for you where we have reasonable grounds to do so (for example: failure by you to settle invoices (interim and/or final) in full on the due date or to make payments in advance when so requested; failure by you to give clear and proper instructions on how we are to proceed; if it is clear that you have lost confidence in how we are carrying out your instructions; if by continuing to act we would be in breach of the law or rules of professional conduct). If we do cease to act for you then we will confirm in writing the reasons why and give you reasonable notice.
We may decide to stop acting for you, with good reason (e.g. if you do not pay an invoice or comply with our request for payment on account or there is a conflict of interest). We will give you reasonable notice that we will stop acting for you.
If our instructions are terminated or we decide we must stop acting for you, you will pay our reasonable charges up to that point as set out in our Client Care Letter.
- Storage of files
Upon receiving payment in respect of our final invoice, our policy is to store your file without cost to you for a minimum period of six years, after which it will automatically be destroyed. “Store” means either (at our option) the simple storage of any paper on the file or scanning that paper and retaining it electronically (and destroying the paper immediately thereafter). Information gathered electronically in the course of the transaction will continue to be so stored.
By instructing us to act on your behalf, you thereby expressly consent to us destroying your file as set out above unless you notify us otherwise.
If you do not want your file to be destroyed after completion of your matter, you may collect your file from us provided you notify us in writing before or at the time of making payment of our final invoice, or you may ask us to retain the entire file for a specified period beyond the minimum retention period upon payment of a sum in respect of reasonable storage charges (details available upon request).
If you require a copy of any document after completion of your matter, we reserve the right to make a modest charge for its retrieval and supply.
Naturally we will not destroy documents which you have asked us to retain in safe custody.
Should you require retrieval of your file at a later date a small administration fee may be applicable. We will ask you to confirm that any personal data we have retrieved remains current and up to date if we are to act upon such data as part of our duties under Data Protection legislation.
We will be entitled to keep all your original papers and documents while there is still money owed to us for fees and expenses.
Please note that information retained on our case management system for your matter cannot be destroyed. This may include some personal information.
If we retrieve papers or documents from storage in relation to continuing or renewing instructions to act for you, we will not normally charge for such retrieval. However, we may make a charge 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 the instructions given by you, or on your behalf. Our charges would be based on our hourly rate applicable at the given time.
- Enforcement& Governing Law
In the event that any of these Terms of Business are held to be invalid, the remainder of the Terms of Business will remain in full force and effect.
These Terms of Business shall be governed by, and construed in accordance with, English law.
The Courts of England& Wales shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning this agreement and any matter arising from it.
- Future instructions
Unless otherwise agreed, and subject to the application of then current hourly rates, these Terms of Business shall apply to any future instructions given by you to us. Your continuing instructions in this matter will amount to an acceptance of these Terms of Business. As this is an important document, please keep your copy in a safe place for future reference.
- Regulatory Information
Kirkwoods Solicitors are authorised and regulated by the Solicitors Regulation Authority (SRA no. 79929)