Avery & Walters Limited Standard Terms & Conditions
Please read all these terms and conditions carefully as you will be bound by them unless we agree otherwise. In particular, your attention to the limitations on our liability to you set out in part 13 below.
1. Avery & Walters Limited
1.1 Avery Walters is limited company registered in England and Wales with number 08064623 and is regulated by both the Solicitors Regulation Authority and the Law Society of Scotland. Accordingly, in all correspondence and documents issued, the expressions “Avery & Walters”, “We”, “Us” and “Our” refer to Avery & Walters Limited”.
1.2 All contracts and/or obligations entered into or advice given in relation to our business by members, partners, employees or consultants of Avery & Walters are entered into or given by Avery & Walters and not those individuals personally.
1.3 We use the word “Partner” to refer to a member of Avery & Walters or an employee or consultant of Avery & Walters (or any affiliated firm) who is a lawyer with equivalent standing and qualifications. The use of the word partner does not mean that the people so called are carrying on business in partnership under the Partnership Act 189. A list of members of Avery & Walters and those non-members who are designated “partners” is displayed at our offices.
1.4 Avery & Walters may assign our rights and/or obligation under our agreement with you to any business which is a successor to our business or a part of it.
1.5 All solicitors are subject to rules and principles of professional conduct. The following link is to the website of the Solicitors Regulation Authority which regulate Avery & Walters and provide the relevant codes of conduct. Where the codes of conduct are not available on these websites, the link provides contact information for the relevant organisation which should provide details upon request. England & Wales – www.sra.org.uk
2. Our fees and expenses
2.1 Our fees for most services are calculated primarily on the basis of time spent multiplied by the relevant hourly rates. All time spent on matters arising from the instructions is charged for, including time spent in meeting, on telephone calls, preparing papers, calculating costs, file opening, compliance, travelling and waiting. Time is recorded in units of six minutes and rounded up to the nearest unit. Each professional has a normal hourly charge-out rate for these purposes which is reviewed periodically (taking into account factors including inflation and the increasing seniority and experience of our personnel) and you will be informed of any changes.
2.2 Where appropriate, adjustments to our hourly rates may be made during the progress of a matter to ensure that the amount charged is fair and reasonable. Increased rates may be applied if, for example, circumstances require specialist expertise, usually fast response times, or negotiating and working under particularly difficult conditions (such as working excessive or unsocial hours), or to reflect the value of the work performed. We will inform you of any such adjustments to our rates.
2.3 We will assume that we have authority to incur usual expenses (known as disbursements) in the course of our work for you unless you tell us otherwise. These will be charged to you as costs in addition to our fees and in some instances may be billed separately. Examples of disbursements are court fees, expert’s fees, costs draftsmen’s fees, barrister’s fees, travel, accommodation, search fees and photocopying (where performed externally). Where rail or air travel is necessary, it is our policy that all personnel travel business class (or first class where business class is unavailable). Where normal mealtimes are missed, we charge for reasonable sustenance costs for our personnel.
2.4 We shall be entitled to deliver interim bills to you before the conclusion of your matter at our discretion. Such interim bills will be either interim bills on account which may not include all costs incurred during the period covered by the bill and may be adjusted when we deliver our final ‘statute’ bill, or interim ‘statute’ bills which are self-contained and complete final bills for the period of work to which they relate. The provisions of part III of the Solicitors Act 1974 affecting your rights and ours will apply to both interim statute bills and to final statute bills to the extent that, where lawfully we are able to vary those rights by agreement, we have not otherwise agreed to vary those rights. If, for any reason, the matter does not proceed to a conclusion we will charge you for work done and expenses incurred up to the point we cease acting. If you would like us to provide you with periodic statements of the amount of our work in progress, fees and disbursements incurred, or the provisions of part III of the Solicitors Act 1974, please let us know.
2.5 You may set a limit on the fees and disbursements we may incur without your consent. If you wish to do this please confirm the limit in writing.
2.6 All costs information provided by us, and all references in this document to fees, disbursements and other amounts exclude Value Added Tax unless stated otherwise, and where applicable VAT will be charged in addition to such amounts.
2.7 In accordance with paragraph 7 below (complaints), in the event of a problem, you are entitled to make a complaint under our complaints handling procedure and this could include a complaint about our bill(s). You may also be entitled to apply to the court for an assessment of the bill(s) under Part III of the Solicitors Act 1974.
2.8 If all or part of the bill remains unpaid the firm may be entitled to charge interest as set out in paragraph 4.1 below.
2.9 Without prejudice to part 10 (Termination) below, if you refuse or fail within a reasonable time to pay a bill on account of costs incurred in relation to contentious business, under section 65(2) of the Solicitors Act 1974, your refusal or failure shall be deemed to be a good cause whereby we may, upon giving reasonable notice to you, withdraw from the retainer. In addition, pending payment of any interim bill we may suspend work and/or decline to act further.
3. Estimates and payments on account
3.1 At appropriate intervals, or at any time at your request, we will provide estimates of the likely overall cost of the work we are we doing for you. However, changing circumstances and facts which are unknown to us can affect the level of work required. Accordingly such estimates are intended as a general guide and should not be regarded as fixed quotes.
3.2 We may ask clients to make advance payments on account of anticipated costs and disbursements. Total costs may exceed any amounts paid in advance. We reserve the right not to proceed until we have received any payment on account which we have requested.
4. Payment of our bills
4.1 All of our bills are payable on delivery. In the event of a bill not being paid promptly we may decline to act further and deliver a final bill. We may charge interest on unpaid amounts at the rate of 3% above the base rate for the time being of HSBC Bank plc or, at our discretion, at the rate applicable to judgment debts. We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1988. Interest on unpaid amounts shall take effect from one month of the date of delivery of our bill where the bill includes non-contentious work, and from the date of delivery of our bill in relation to contentious work.
4.2 We accept payment by cheque, banker’s draft, BACS transfer, and bank transfer. We do not accept cash in excess of £500. When sending any payment to us, please ensure that you quote your name and our reference.
4.3 To make payment by BACS, bank transfer, please call us on 0113 2168949 and ask for our Accounts Department. It is not necessary for you to visit our offices to make payment.
4.4 If we hold money which belongs to you (for example, money paid on account, or costs or damages received from another party) we may, after providing you with written notification of costs incurred, deduct the amount of our outstanding costs (including disbursements and VAT) from those funds before paying the balance to you.
5. Litigation costs
5.1 Costs in litigation is a complicated subject and is covered in more detail in our document entitled “Important information relating to disputes” which will be sent to you when appropriate.
5.2 An award of costs in your favour against another party does not affect your primary responsibility for payment of our fees and disbursements. Recovery of costs from a losing party can be a time consuming process and we may bill you before the conclusion of any proceedings to recover costs as set out in paragraph 2.4 above. You will have to pay the fees and expenses incurred in any such proceedings. If you are VAT-registered, you must pay the VAT element of our charges in any event.
5.3 To the extent that our fees and disbursements have not been covered by payments on account or by payment of interim bills, we will retain costs paid by our opponent, plus any interest earned on such costs.
5.4 Particularly where Court proceedings are involved, it is common for disputes to last for a number of years and therefore it is likely that the hourly charge-out rates for personnel dealing with long running contentious matters will be increased periodically in accordance with paragraph 2.1 above.
5.5 If it appears that you are likely to be eligible for Public Funding you will be sent details about the Public Funding Scheme. Please bear in mind that Public Funding Certificates are not retrospective and accordingly any costs incurred before a Certificate is issued will be payable on a private basis.
5.6 Unless we have entered into a conditional fee agreement with you we are not acting on a conditional fee basis.
6. Legal expenses insurance
6.1 If you have legal expenses insurance, you must notify us of that fact whether or not you believe you are insured in respect of your own or another party’s legal costs. You agree to comply at all times with the terms of any legal expenses insurance policy you may have.
6.2 Even if you are insured against some or all of the legal costs for which you are liable, you remain primarily responsible to pay those costs. Accordingly, unless we agree otherwise in writing, we will bill you in the normal way as if you were not insured. It will then be your responsibility to make a claim from your insurer. If you are VAT-registered, you must pay the VAT element of our charges in any event.
7. Complaints procedure
7.1 The Solicitors Regulation Authority and the Law Society of Scotland, our regulators, require us to notify clients of our complaints procedure, a copy of which is available on request from our Client Care Manager, at Avery Walters, or by telephone on 0113 2168949. Although, he may not have principal conduct of your matter, the Partner with overall responsibility for it is our Director, Andrew Parascandolo. If you have a problem, you are entitled to complain and this can include a complaint about the firm’s bill. You should contact the person dealing with your case in the first instance, whose contact details have been provided separately.
7.2 All solicitors must attempt to resolve problems that may arise with their services. If you have any concerns, it is important that you raise them with us within six months of the date of completion of the work or within six months of the date the problem came to light. We value your instructions and would not wish to think that you have any reason to be unhappy with us.
7.3 If, for any reason, we are unable to resolve the problem between us, then it is open to you to refer your concerns to the Legal Ombudsman within the timescales referred to in paragraph 7.2 above. 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. Contact details for the Legal Ombudsman are as follows:
Telephone: 0300 555 0333
From overseas: 0044 121 245 3050
Minicom: 0300 555 1777
PO Box 15870
7.4 Avery & Walters maintains Professional Indemnity Insurance cover in accordance with the Solicitors’ Indemnity Insurance Rules, as set out by the Solicitors Regulation Authority, Minimum Mandatory Cover is provided by underwriters at Ink underwriting agencies Limited. Our professional indemnity insurance covers all legal jurisdictions. This cover together with the Compensation Fund operated by the Solicitors Regulation Authority provides clients with sufficient protection. Details of the Solicitors Regulation Authority’s Compensation Fund are available on request.
8. Storage of papers and documents
8.1 Our usual practice is to keep your file relating to a matter for six years or twelve years (as per time periods set out by our regulator) following the date of the final bill we send to you for the relevant work, after which it may be destroyed in paper and/or electronic form unless you have given us express consent to retain this information on your file for a longer period of time.
8.2 Files relating to claims for children or persons who are unable to manage their own financial affairs will be kept longer. This does not apply to original documents such as property deeds, share certificates and signed agreements (see paragraph 8.3 below). If after the conclusion of this matter we produce or make copies of anything on the file for you, we may make a charge for this based on time spent.
8.3 Our usual practice is to send all original documents to you shortly after the conclusion of your matter. Storage of original deeds and documents by us is by special arrangement only. Please speak to the person in charge of your matter if you would like us to provide this service.
8.4 We shall be entitled to keep your documents, money or other property belonging to you which has come into our possession until we have been paid in full for all work carried out on your behalf. Acceptance by us of any payment on account will not be a waiver of our rights of lien over any of your documents or other property in our possession or recovered or preserved by us on your behalf.
9. Data protection legislation
9.1 Avery Walters is committed to protecting your privacy and the information your provide us with. We follow strict security procedures in the storage and disclosure of information which you provide us with.
9.2 In order that we may provide you with legal services, we need to record and maintain certain personal data on that you have provided us with which we may hold in paper and/or electronic form. We use the information primarily for the provision of legal services to you and for related purposes including updating and enhancing client records, analysis to help manage our practice, statutory returns and legal and regulatory compliance. The use of the information is subject to your instructions, data protection law and our duty of confidentiality.
9.3 The personal data contained within your instructions to provide legal services may include the following categories of personal data: names, addresses, dates of birth, financial records, details of medical conditions and medical records, personal identity documents and contact details such as telephone numbers and email addresses.
9.4 We may use all the information that we know about you, including sensitive personal information such as information relating to your health, your racial or ethnic origin, political opinion, religious or other beliefs, trade union membership, sexual orientation and criminal convictions, for the purposes of providing our services to you and your insurers and maintaining records about you that we must keep by law or under regulatory requirements.
9.5 Where you are a trustee, you agree to advise any beneficiary of the trust that their personal information will be dealt with on these terms, as if each reference to “you” or “your” in this section is a direct reference to the beneficiary. You must ensure that you have any appropriate consents in place to enable you to transfer personal data to us, and so that we may use it for the purposes for which you provide it to us.
9.6 In order to use the personal data that we hold about you to inform you about our firm’s future marketing/charity initiatives, legal briefings, updates, information about our services and invitations to events we will require your consent to ‘Opt-in’ to receive such information. However you also have a right to withdraw your consent or ‘Opt-in’ at any time by contacting the Data Protection Officer or the fee earner handling your matter.
9.7 We do not pass any information about our clients to third parties for commercial exploitation. We pass client information to third parties only where it may be necessary or beneficial in carrying out the work for which you have instructed us or where we have to disclose information to third parties because of our legal or regulatory obligations or to prevent fraud or money laundering.
9.8 We are obliged to inform you which third parties we may have to share information with in order to carry out the work you have instructed us to do and these can include other professional advisers. We may also give such information to others who perform services for us, such as typing, photocopying/ IT support or database suppliers. Our firm may be audited or checked by our accountants or regulator, or by other organisations. By way of example, documentation and information containing your personal data may, on occasions, have to be sent to your insurers, the person you are making a claim against, their lawyer or their insurer. This may take place before or after you decide to issue court proceedings, but any such action is taken in accordance with our standard practices and protocols. We may pass relevant information to our insurers if we are concerned that our work for you may have given rise to a possible liability to you on our part.
9.9 Any third party to whom we disclose information about you will be under obligation to keep your information secure and confidential and not to use it for any other purpose than that for which it was disclosed in accordance with data protection and privacy laws. Some third parties to whom we disclose information may be situated outside the European Economic Area and you agree to our disclosing such information to such third parties where reasonably necessary in order to carry out your instructions.
9.10 In addition to the information that you provide, we may also obtain information about you from other individuals, partnerships, companies or other organisations (e.g. a credit reference agency) in order to verify your identity.
9.11 Avery Walters is registered as a Data Controller with the Information Commissioner. You have a right of access under data protection legislation to the personal data we hold about you (subject to some exceptions). If you would like to obtain this information please contact the data protection compliance officer, Michael Andrew Parascandolo) in writing stating which personal information you wish to access including the words ‘Data Protection Act’ or ‘Subject Access Request’. We seek to keep your personal data correct and up to date. You also have a right to correct, update or delete your personal data (if we have no justification in holding it).
9.12 We operate our own internal complaints policy and if you have any concerns about the way in which we collect or handle data please contact us. Additionally, you have the right to lodge a complaint with the Supervisory Authority who is: Information Commissioner, Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.
10.1 You may terminate your instructions to us at any time by notice in writing.
10.2 We may decide to stop acting for you only with good reason, for example if you fail to pay your bills, if you fail to give us adequate instructions to enable us to advise you, if a conflict of interests arises which prevents us from continuing to act, or if you fail to provide any evidence of identity we have requested. If you are a body corporate, partnership or unincorporated association we may stop acting for you if you: cease or threaten to cease carrying on business; suspend making payments on any of your debts or announce an intention to do so; are or are deemed for the purposes of any law to be, unable to pay your debts as they fall due or insolvent; enter into or propose any composition, assignment or arrangement with your creditors generally; take any step or suffer any step to be taken in relation to your winding-up, dissolution, administration (whether out of court or otherwise) or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise); have a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer appointed (in each case, whether out of court or otherwise) in respect of you or any of your assets; have any security over any of your assets enforced; or any analogous procedure or step is taken in any jurisdiction. We will give you reasonable notice if we intend to stop acting for you.
10.3 If you terminate your instructions or we stop acting for you with good reason, you must pay our fees and expenses up to the date that we cease acting, including any costs we incur in removing our name from the Court record, and/or transferring our files to you or another adviser.
11. Your Right to Cancel this Agreement
11.1 If we have not met with you then the Consumer Protection (Distance Selling) Regulations 2000 (the “Regulations”) apply, under which you have the right to cancel your instructions with us within seven days of receiving this letter. If you wish to cancel your instructions, you should do so within the seven day period by informing the person dealing with your matter and you can do this by telephone, in person, or in writing by post, fax or email.
11.2 If, with your agreement, we begin work on your case before the end of the seven day period, you will lose your right to cancel the instructions.
11.3 The Regulations state that we should complete the work on your file within 30 days of the date of this letter or within a longer period, if you agree. As you will appreciate, in most cases, it will take more than 30 days to complete the work. By accepting our terms of business either expressly or under paragraph 12.9 below, you agree that the work will take longer than 30 days, if necessary.
12.1 Copyright may arise in documents, reports or other material which we produce for you. We shall own this copyright and without our prior written agreement payment of our bill will not transfer it to you
12.2 We may submit your file for external review as part of our procedures to ensure that our internal quality management systems are effective. We will only do so with your consent.
12.3 Unless we specifically agree otherwise in writing, no communication by Avery & Walters Ltd in the course of our work for you is intended to be, or should be construed as, an invitation or inducement to any person to engage in investment activity for the purposes of the Financial Services and Markets Act 2000, or as the approval of any communication of any such invitation or inducement.
12.4 Without prejudice to paragraphs 4.5 and 5.3 above, money held by us for you, whether on account or otherwise, will be held in a client account in accordance with Solicitors regulation Authority regulations.
12.5 Unless you specifically instruct us to advise on tax planning matters, our advice will not concern or take into account the taxation implications or consequences of any course (or possible course) of action.
12.6 Where we are instructed to act for more than one person, your liability for our fees and expenses shall be joint and several.
12.7 These standard terms and conditions supersede any previous arrangement with you concerning their subject matter and must be read in conjunction with all accompanying and subsequent correspondence and documentation sent to you relevant to the terms on which we act. Together, they set out the terms of business governing the work we do for you on a particular matter. Each provision of such terms of business is severable and distinct from the others. These terms of business cannot be amended except with our written agreement or as provided in these terms of business.
12.8 Unless we notify you otherwise, these standard terms and conditions shall apply to any future instructions you give us.
12.9 Your continuing instructions on any particular matter will indicate your acceptance of these standard terms and conditions and any other terms we may agree in writing.
12.10 These standard terms and conditions and any other terms we may agree with you are governed by English Law and any dispute relating to them shall be subject to the exclusive jurisdiction of the English Courts, provided always that we may in our absolute discretion refer any dispute to binding arbitration in London under the Rules of the London Court of International Arbitration, which rules are deemed incorporated by reference into this paragraph, and in which case the number of arbitrators shall be one, the language to be used in the arbitral proceedings shall be English and the seat of the arbitration shall be England. These terms are provided in English and we will communicate with you in English. This paragraph 12.10 is subject to our obligations under law and the rules of professional conduct by which we are bound.
12.11 Avery & Walters Ltd is governed by the Solicitors Regulation Authority.
12.12 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. On 6 October 2010, the Legal Ombudsman took over the complaints-handling function from the Legal Complaints Service, which was the independent complaints-handling body of the Law Society.
12.13 You may not assign all or any part of the benefit of, or your rights and benefits under the agreement of which these standard terms and conditions form part.
13. Limitations on our liability to you
13.1 Where you agree to a limit being imposed on the liability of any other professional or financial advisers instructed by you in relation to this matter for loss or damage resulting from the performance of a failure to perform their respective duties, the liability of Avery & Walters Ltd and/or any of its partners will not in any event exceed what it would have been had the liability of such advisers not been so limited and had the contribution of all such advisers, but for such limitation, been proportionate to their respective responsibilities for such loss or damage.
13.2 The liability of Avery & Walters Ltd to you shall be reduced by taking into account any contributory negligence on your part.
13.3 We accept instructions from you on the basis that services provided by Avery & Walters Ltd are provided solely for your benefit and we do not assume any liability to any person other than you in relation to the advice we give you. Unless we indicate otherwise in writing, we assume no responsibility for or liability (including liability for fees) in relation to acts or omissions of, or advice given by, any experts, consultants or other advisers (including legal advisers) engaged in relation to any matter connected with your instructions to us. Our advice is confidential to you and Avery & Walters Ltd shall not be responsible if you make it available to third parties. Advice we give in connection with contentious matters may be covered by professional privilege and if you show it to others it may cease to be privileged, and therefore become disclosable to other parties to the dispute. No person who is not a party to the agreement embodied in these standard terms and conditions and the relative covering letter(s) shall, in the absence of express provision to the contrary, have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms, but this does not affect any right or remedy of a third party which exists or is available other than under the Act.
13.4 Avery & Walters Ltd shall not be liable for any delay in performing or failure to perform any of our obligations to you if such a delay or failure results from events or circumstances outside our control, including, without limitation, transport or communication failure; the consequences of a terrorist attack; failure of our computer systems; or damage to our premises or storage facilities by explosion, fire, corrosion, flood, natural disaster, malicious or negligent act or accident.
13.5 In connection with these instructions Avery & Walters Ltd shall not be liable to you for any indirect or consequential loss or damage (including loss of profits) suffered by you or any other person.
13.6 You shall not bring any claim against any of our members, employees or consultants in his or her personal capacity in connection with the advice we give you save in circumstances of fraud by a member, employee or consultant. We shall not seek to avoid any liability to you on the grounds that the relevant claim should be brought against one or more of our members, employees or consultants and not Avery & Walters Ltd.
13.7 Paragraphs 13.1 to 13.5 (inclusive) above shall not apply in relation to any liability to you we may incur arising from your instructions in this matter if these terms of business constitute a contentious business agreement (as defined in section 59 Solicitors Act 1974). The agreement of which these standard terms and conditions form part shall not be a contentious business agreement unless we have agreed this with you in writing.
13.8 Our liability shall not be limited by anything in paragraphs 13.1 to 13.5 (inclusive) (or by any limitation on our liability set out in any of the documents referred to in paragraph 12.7 above) in relation to death or personal injury or in circumstances of fraud or reckless disregard of professional obligations.
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"I just wanted to thank Andrew for all the time and dedication in putting this deal together. Both Lee and myself are delighted with the purchase and we now look forward to building one of the UK’s coolest offices!’’