TERMS OF BUSINESS (Clinical Negligence)
1. INFORMATION ABOUT COSTS, FUNDING & EXPENSES
There are a number of different ways to fund a claim for clinical negligence and we have already discussed the various options with you.
1.2 Funding your own claim on a private basis
We have explained that if you choose to fund your claim personally, there is a risk that you may be liable to pay all of your costs and disbursements and all those of your opponent if you ultimately lose your claim. If we are acting for you on this basis, you have indicated that you are prepared to accept this risk. If we are acting for you on any other basis, you have indicated that you do not wish to accept this risk
1.3 Funding through a third party
You may have the benefit of legal expenses cover through membership of a trade union or through your employer. In these circumstances you should provide us with any relevant details. We will make contact on your behalf and check that the funder is happy for us to deal with the claim on your behalf.
1.4 Legal Expenses Insurance
Legal Expenses Insurance is often contained within other insurance policies such as your motor insurance or home insurance and will usually protect you against having to pay our fees and any charges we incur in acting for you such as medical fees (these charges are known as ‘disbursements’). It may also protect you against having to pay the legal fees and disbursements of the other side. Most insurance policies will have a limit up to which they will fund any claim and if you have such a policy in place we will have to ensure that it provides a suitable level of indemnity for it to be in your best interests to rely on it.
1.5 Community Legal Service Funding (formally known as ‘Legal Aid’)
We explained that Community Legal Service (CLS) Funding (otherwise known as Legal Aid) is available in limited circumstances for claims of clinical negligence. CLS funding means that the Legal Services Commission would pay this firm’s costs from the date that they grant a ‘Legal Aid’ certificate.
There are various levels of CLS Funding and, depending on your financial circumstances; you may be required to pay a monthly contribution towards the costs of bringing your claim.
In addition, should your claim be successful and you recover money or property as a result, the LSC will use those funds to reimburse them the money they have spent on your claim. This is known as the statutory charge. However, in normal circumstances the other party would be ordered to pay the costs of bringing the claim and any payments that you have made to the LSC would be refunded. However, it is possible that the amount of costs awarded to you and paid by your opponent may fall short of the money spent on your claim by the LSC and you would be required to meet the shortfall from your compensation.
If your claim was unsuccessful and you were ordered to pay costs to the other side it is unlikely that you would be required to pay any more than you had already contributed.
To be eligible for CLS Funding we have to make an application to the Legal Services Commission (LSC). In determining whether you are eligible for CLS funding and what level of contributions you will be required to make the LSC will take into account your personal financial circumstances. You would therefore be under a duty to inform the LSC of any changes to your circumstances including changes in employment and changes of address.
As the CLS funding comes from the public purse it can be revoked or discharged in certain circumstances including if you fail to provide proper instructions or to cooperate with us or if information arises that casts doubt over the prospect of your claim succeeding. You should note that CLS funding will only remain in place all the way to a full trial if you continue to qualify financially for CLS Funding and the prospects of your claim being successful and the likely level of damages are sufficiently high. The LSC may also limit the amount that can be spent on the obtaining of medical evidence or experts reports and may therefore limit your choice of expert witnesses.
As you can see there are a number of different circumstances in which CLS funding would result in you having to make a financial contribution to making your claim and also poses a number of restrictions on how the claim would be dealt with.
We will therefore have advised you whether we think you might be eligible for CLS funding and whether we think such funding is in your best interests.
1.6 Conditional Fee Agreement
(a) If you do not have a Legal Expenses Insurance policy, there is no third party that might pay your fees or you are not eligible for CLS funding or CLS funding is not in your best interests, it may still be possible to fund your claim by entering into a Conditional Fee Agreement with us (either on its own or in conjucntion with a Contingency Fee Agreement – see below). These agreements are often referred to as ‘no win no fee’ agreements because under such an agreement you will not have to pay our legal fees if your claim is unsuccessful.(b) If your claim is successful you will be liable to pay our legal fees and disbursements plus a ‘success fee’ (to reward our firm for the risk we take when we make our fees conditional upon the success of your claim) but you will usually recover a large proportion of these (with the exception of the ‘success fee’) from the other side. In a straightforward personal injury claim, the likelihood of obtaining and recovering a large proprtion of our fees (except the ‘success fee’) and disbursements from the other side is very high. Therefore, in our opinion a Conditional Fee Agreement/ Contingency Fee Agreement is appropriate to your circumstances as it leaves you with only our success fee and any shortfall in our costs to pay. Nevertheless, you should be aware that if your claim is unsuccessful you may still have to pay our disbursements and the fees and disbursements of the other side.(c) We have assessed the strengths and weaknesses of your claim and we are prepared to enter into a Conditional Fee Agreement/ Contingency Fee Agreement with you. Should the case change, and particularly if it transpires that you have failed to disclose any relevant information to us, we reserve the right to withdraw from these agreements and you may become liable to pay our past and future fees on a private basis.
(d) The Conditional Fee Agreement that we have already provided you with specifies the level of our success fee. Please read the Conditional Fee Agreement and the attached document entitled ‘What you need to know about a CFA’.
1.7 Contingency Fee Agreements
(a) Contingency Fee Agreements are a form of ‘No Win, No Fee’ agreement and are often used as a method of funding non-contentious matters, most commonly CICA Claims, MIB Untraced Driver Claims and Employment Tribunal Claims. We also use these types of agreement (in conjunction with a Conditional Fee Agreement) in relation to claims which settle without Court proceedings having been issued.
(b) Under a Contingency Fee Agreement, you will not have to pay our fees if your claim is unsuccessful. However, if your claim is successful, we will take a fixed percentage of your damages, inclusive of VAT and the value of any disbursements that we are unable to recover from the other party. The proportion of your damages that we retain represents our reward for the risk we assume in making the payment of our fees contingent on your claim being successful.
(c) Following a risk assessment of the merits of your claim, and where we believe it to be in your best interests, we may propose funding your matter by way of a Contingency Fee Agreement.
1.8 After the Event Insurance
(a) We have explained that if your claim is unsuccessful you may still have to pay our disbursements and the fees and disbursements of the other side. Therefore, to protect you against this possibility we may recommend later that you take out an insurance policy known as an ‘After the Event’ policy (ATE).
(b) If we do recommend that you obtain such a policy we will recommend a suitable policy to you and, on your instructions, will arrange this policy. You are not obliged to take out the policy we recommend and you should seek independent financial advice if you have any concerns about our recommendation. Similarly, if we do not believe that taking out a policy is in your best interests, we will advise you accordingly.
(c) We will set out the reasons why we believe that you need an ATE policy and why we believe the policy that we have recommended meets those needs in a ‘Demands and Needs’ statement. We are not financial advisers and do not conduct an analysis of the insurance market when making any recommendations and only do so because we are confident that that policy will meet your requirements.
(d) M_Company_Name.Text 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 mediation 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.gov.uk/register.
(e) We are required to inform you that 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. Complaints are handled by the Legal Ombudsman.
(f) Where an insurance policy is taken out on your behalf it is likely to include a non-recoverable element for which you will be responsible. We estimate that such amount will be £363.00 for any claim where damages recovered do not exceed £5,000.00. Where damages recovered exceed £5,000.00, the figure is likely to be estimated at £1,106.96. In the event that the non-recoverable element is likely to be any different, we will notify you before accepting this policy.
1.9 Our Costs
(a) We are obliged to point out how our costs are calculated.
(b) Our charges will be based on each hour engaged on your case at the charge out rate appropriate to your adviser or the LSC rates. This is set out in the attached letter. Routine letters and telephone calls are charged as units of one tenth of an hour.
(a) To progress this matter, we will need to incur some other expenses directly on your behalf which are called “disbursements”. We expect these to include:
(i) Medical Reports estimated at £950.00;
(ii) Hospital notes estimated at £50.00;
(iii) GP records estimated at £50.00;
(iv) Court fees – £150.00 to £1,000.00;
(v) Barristers’ fees estimated at £300.00 (although we may be able to arrange a conditional fee agreement with the barrister in which case your responsibility for these will be on the same basis as our own charges).
(b) We will ensure that you do not have to pay these disbursements, by advising that you take out appropriate legal expenses insurance where necessary (see 1.8 above).
1.11 In the event you become liable to pay our bill of costs
(a) In the event that you personally become liable for our fees and that you fail to settle one of our invoices on time, we may exercise a lien over any papers of yours that we hold at that time. This means that we may keep papers and other materials belonging to you until you settle our invoice. We will only do this if it is reasonable in all the circumstances and with due consideration to ensuring your position is not prejudiced and your rights under the Data Protection Act 1998 are not infringed.
(b) Should the case arise where we issue you personally with an invoice then payment is due within 28 days. If you fail to pay our bill we will charge you interest (on a daily basis) on the unpaid element of the bill at the rate payable on judgment debts (the current rate at the date of this agreement being 8.5% per year) from the date of the bill until payment, unless it is determined that you do not have to pay that element.
(c) You are entitled to object to the bill by making a complaint to the Legal Ombudsman and/or by applying to the court for an assessment of the bill under Part III of the Solicitors Act 1974.
(a) If you are receiving means-tested state benefits/support, the amount of capital (i.e. savings) that you have may not exceed the ‘Capital Threshold’. Therefore, if you are awarded damages as compensation for the injuries sustained from your negligent care or treatment, your entitlement to such benefits/support may be reduced or stopped completely. In addition, the Capital Threshold is calculated per household, meaning any benefits/support claimed by your partner may also be affected.
(b) However, it is possible to safeguard your compensation from being included as part of your capital. This is achieved through the use of a Settlement Trust. If you transfer your compensation award to a Settlement Trust, you will still be obliged to notify the Benefits Agency of the existence of the Settlement Trust, but any capital held in the Settlement Trust will be disregarded i.e. it will not count to the Capital Threshold.
(c) You have 52 weeks from the date of any settlement or any interim payment to set up a Settlement Trust and there is no upper limit to the amount of capital that can be transferred to the Settlement Trust.
(d) As well as, or as an alternative to, setting up a Settlement Trust, if you are awarded compensation you may wish to seek financial advice generally. We are able to assist with the creation of a Settlement Trust if you require it. We are not able to give financial advice but will, at your request, refer you to an independent financial advisor.
(e) By entering this Agreement, you are confirming that you have been advised of the above risks and of the possibility of creating a Settlement Trust to protect any benefits/support that you receive now or in the future. Accordingly, we shall not be held liable for any loss that you suffer as a result of the reduction or suspension of any benefits/support that you may receive now or in the future.
2. Terms of Business (CLINICAL NEGLIGENCE)
(a) These terms may not be varied unless agreed in writing by the Director.
(b) These terms shall apply to all Clinical Negligence work done by us for you (and any work to be done in the future) unless we otherwise notify you in writing.
(c) We do not (unless otherwise agreed by us in writing) advise on the law of jurisdictions other than England & Wales (which for these purposes includes the law of the European Union as applied in England & Wales).
(d) If any term of this agreement is inconsistent with our legal obligations under the relevant laws then the relevant laws shall apply instead of those terms.
(e) If now, or at any time in the future, any matter on which we act for you is the subject of formally contested proceedings, whether in the courts or other tribunals, you will almost certainly have to disclose documents, including electronic documents, relevant to the matter. You should ensure that you do not destroy or allow to be destroyed any documents that relate to such matter in any way (however slight you believe the connection may be), as your position in such proceedings could be seriously compromised if you do so.
(a) M_Company_Name.Text is a trading style of Neil Hudgell Limited, a company registered in England and Wales with number 07078429. The firm operates from its registered office: M_Co_Head_Office_Address_Line_with_Commas.Text, and from other offices in Hull, Leeds and London. Normal hours of opening are 9am – 5.30pm Monday to Thursday and 9am – 5pm on Friday. However, it may be possible to arrange appointments outside these hours when it is both in the interest of the client and practical. Our telephone number is 01482 787 771 and our fax number is 01482 787887. The person responsible for your matter may, at his or her absolute discretion, provide you with a mobile telephone number, and may endeavour to take your telephone calls outside of office hours, but nothing he or she says should be interpreted as an agreement to routinely deal with your matter or to take your telephone calls outside of office hours.
(b) M_Company_Name.Text is authorised and regulated by the Solicitors Regulation Authority (number: 521372). We are bound by various professional rules of conduct which can be viewed at www.sra.org.uk or by writing to ‘Solicitors Regulation Authority, The Cube, 199 Wharfside Street, Birmingham, B1 1RN’ or calling the Solicitor’s Regulation Authority’s contact centre on 0870 606 2555 (inside the UK), 09.00 to 17.00, Monday to Friday.
(c) Our VAT registration number is: 698 3126 95.
(d) The SRA Indemnity Insurance Rules require us to take out and maintain professional indemnity insurance with Qualifying Insurers. Information about the compulsory layer of professional indemnity insurance we carry, including the contact details of our insurers and the territorial coverage of our insurance, are available in hard copy at our registered office.
2.3 Setting Standards
(a) We operate systems throughout our offices, insisting that all our staff meet certain standards with regard to Client care. These standards include:
(i) Sending you copies of all important correspondence;
(ii) Returning your telephone calls during the course of the same day, if at all possible;
(iii) Dealing with correspondence of any sort promptly;
(iv) Writing letters to you and others in plain and concise language;
(v) Giving appointments to you without any undue delay;
(vi) Dealing with you and all persons with the same attention, courtesy and consideration regardless of race, colour, ethnic or national origins, sex, creed, disability or sexual orientation.
(b) To assist us in providing an efficient and effective service we ask that you:
(i) In all communications quote the file reference number of your matter (which is set out at the top of each of our letters) and clearly address all written communications to your Legal Representative;
(ii) Leave clear telephone messages with your Legal Representative’s secretary, or reception;
(iii) Notify us immediately of any change of your address, telephone number or other material information;
(iv) Notify us immediately if you are delayed or cannot attend an appointment;
(v) Respond to our requests promptly;
(vi) Pay our bills and disbursements without delay;
(vii) Contact your Legal Representative immediately if you receive any communication from your opponent or solicitors on that person’s behalf. Do not reply without speaking to your Legal Representative.
(a) Unless we agree otherwise, all copyright which exists in the documents and other materials that we create whilst carrying out work for you will remain our property. You have the right to use such documents and materials for the purposes for which they are created, but not otherwise.
(b) Unless otherwise required by law or court order, you agree not to make our work, documents or materials available to third parties without our prior written permission. Our work is undertaken for your benefit alone and we are not responsible to third parties for any aspect of our professional services or work that you make available to them.
(a) You may end this agreement (and therefore, your instructions to us) at any time by writing to us but we may be entitled to keep all of your documents while there is money owing to us (including fees and expenses which have not yet been billed).
(b) We may end this agreement (and, therefore, cease acting for you) in relation to any matter or all matters of yours but only on reasonable written notice and for good reason. Examples of a good reason include where you have not given us sufficient instructions, where you have not provided appropriate evidence of identification or we reasonably believe that the relationship between you and us has broken down or you ask us to break the law or breach our regulatory obligations or there is a conflict of interest.
(c) If your matter does not conclude, or we are prevented from continuing to act because of our legal obligations or our professional rules, we will charge you for any work we have actually done. Our charges will be based on our hourly rates set out in this agreement.
(d) If we cease acting for you, we shall (where relevant) inform the court or tribunal that we no longer act for you and shall apply to be removed from their records. We may charge you for doing so at our hourly rates applicable at the relevant time.
(e) If we have not met with you, the Consumer Protection (Distance Selling) Regulations 2000 and the Consumer Protection (Distance Selling) (Amendment) Regulations 2005 will apply to our agreement. Similarly, if we made this agreement in your home or place of work then the Consumer Protection (Cancellation of Contracts made in a Consumer’s home or place of work etc.) Regulations 2008 will apply. These regulations mean that you may terminate this agreement within seven days without any obligation. By accepting these terms of business you agree that you would like our service to start before the end of the usual cancellation period and you agree that your cancellation rights shall end as soon as we commence work on your matter.
(f) Please note that upon conclusion of your matter, we shall write to you to confirm it is at an end. If you have provided us with original documents which you require returning to you, then you will be able to collect them from our office. If it is necessary to send documents out to you, then we reserve the right to make a charge for the administration and cost involved in so doing.
(g) We will keep our file of papers (except for any of your papers which you ask to be returned to you) for no more than 6 years and on the understanding that we have your authority to destroy the file 6 years after delivering our final bill. We will not destroy documents you ask us to deposit in safe custody.
(h) We do not normally make a charge for retrieving stored papers or deeds in response to continuing or new instructions to act for you. However, we reserve the right to make a charge based on the time we spend on reading papers, writing letters or other work necessary to comply with the instructions.
2.6 Client Money
(a) 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.
(b) We shall not be liable for any loss which you or any third party may suffer in connection with an insolvency event occurring in relation to 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 clause 1.6(a).
(c) If an insolvency event occurs in relation to any deposit provider which holds money that we have deposited on your behalf, 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 addressed to our Data Protection Compliance Officer, Michelle Maltby. 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 where an insolvency event occurs in relation to a deposit provider holding money which we have deposited on your behalf. Further information regarding the FSCS can be found at www.fscs.org.uk, telephone number 020 7892 7300.
(d) Subject to certain conditions set out in Rule 22 to 25 of the SRA Accounts Rules, a sum in lieu of interest must be accounted to clients when it is fair and reasonable to do so in all the circumstances. Our policy seeks to provide for a fair and reasonable outcome for both our clients and this practice. Our policy on interest shall be kept under review. The rate of interest available on client accounts is significantly lower than the rate of interest which can be obtained on other bank or building society accounts. This reflects the fact that immediate access is required to client accounts in order to comply with the accounts rules and to facilitate the smooth completion of transactions. It is therefore unlikely that the funds will attract as much interest as if you had invested those funds yourself.
(e) All interest arising from cleared funds held on behalf of a trust will be credited to the trust whether those funds are held in a general client account or a separate designated client account (formerly known as a Designated Deposit Account).
(f) For cleared funds paid into general client accounts, the practice shall account for interest unless one of the following circumstances applies:
(i) The amount of interest calculated on the balance held is £20.00 or less; or
(ii) The client money was held in cleared funds in client account for a period of five working days or less.
(g) All other clients shall be paid interest at the rate payable on an instant access account at the bank in which the funds are held, unless there are specific circumstances which lead the client to contract out of the right to receive interest payments (for example, where the client agrees the practice may keep interest payments to remunerate the practice for acting as stakeholder in the transaction or where the client’s religious beliefs prohibit the receipt of interest).
(h) In certain circumstances a separate designated client account will be opened on behalf of clients. All interest arising from funds held in separate designated client accounts will be credited to the client.
(i) Where sums of money are held in relation to separate matters for the same client, the money relating to the different matters shall be treated separately unless it is fair and reasonable in the circumstances to consider the sums together.
(j) Interest will not accrue on any advances from the practice under rule 14(2)(b) of the accounts rules to fund a payment on behalf of a client or trust in excess of funds held for that client or trust.
(k) Where a client fails to present a cheque to his or her bank for payment we will not recalculate any amount due to the client unless it is fair and reasonable to do so, for example if the cheque has been sent to an incorrect address.
(l) We will usually account to you for interest arising under our policy at the conclusion of your matter, but might, in some cases, consider it appropriate to account to you at intervals throughout.
2.7 Confidentiality, Privacy, Data Protection and Call Recording
(a) We keep information passed to us confidential and will not disclose it to third parties except as authorised by you or required by law. In certain circumstances the law requires us to disclose information relating to you (for example, payments of interest earned on a clients’ account may have to be disclosed under the EU Savings Directive). If on your authority we are working with other professional advisers, we will assume that we may disclose any relevant aspect of your affairs to them.
(b) During the course of the firm’s work it may be necessary to discuss your case with cost specialists, experts or counsel. We may also be required to report to any legal expenses insurance with an interest in your claim. Your acceptance of these Terms of Business amounts to your consent to us to disclose information which we consider necessary to progress your case.
(c) Where you provide us with fax or computer network addresses for sending material to, we will assume, unless you tell us otherwise, that your arrangements are sufficiently secure and confidential to protect your interests.
(d) The Internet is not secure and there are risks if you send sensitive information in this manner or you ask us to do so. Data we send by email is not routinely encrypted, so please tell us if you do not want us to use email as a form of communication with you or if you require data to be encrypted.
(e) We will take reasonable steps to protect the integrity of our computer systems by screening for viruses on email sent or received. We expect you to do the same for your computer systems.
(f) We promise to respect the data we hold on you. Your acceptance of these terms authorises us to keep your details on our database so that we can provide you with legal services and for administration and accounting purposes, so that we can make credit searches and send you relevant information on our services and on events that may interest you. All information that we hold concerning you as an individual will be held and processed by us strictly in accordance with the provisions of the Data Protection Act 1998.
(g) We will not, without your consent, supply your name and address to any third party except where:
(i) It is necessary as part of the legal services that we undertake; or
(ii) We are required to do so by law or our professional rules.
(h) All calls to and from our main office telephone numbers are recorded for monitoring and training purposes. These recording will be dealt with in the same way as any other confidential information passed to us, as details
(i) The firm will become subject to periodic checks by Law Society approved consultants and assessors. This could mean that your file is selected for checking, in which case we would need your consent for the checking to occur. All such checks are conducted by individuals who have provided the firm with a Confidentiality Agreement. Your acceptance of these Terms of Business amounts to your consent to make your file available for checking. If you do not want us to make your file available for checking you must notify us immediately and we will mark your file accordingly. If you refuse to give us consent to checks, your refusal will not affect the way your case is handled in any way.
(j) Neil Hudgell Limited is accredited by the Association of Personal Injury Lawyers (APIL). This means that we have to meet the highest standards of service to our clients. Every year APIL monitors a sample of accredited firms to ensure its standards are being met. Monitoring includes the inspection of a small number of client files, as these are the only reliable source of information about the quality of the work undertaken on your behalf. This inspection is carried out by qualified solicitors with extensive experience of personal injury law, who are bound to respect the confidentiality of your file. By agreeing to these terms of business, you consent to your file being inspected. However, if you would prefer your file not to be subject to this quality check, please inform us, and we will ensure that it is not included in the sample for inspection.
(k) Neil Hudgell Limited is committed to providing the highest standard of client care at all times, and is constantly seeking ways to improve the level of service which we offer. As part of this process we may occasionally engage the services of third parties to review and advise on our procedures, and/or to assist with marketing. Such third parties may be provided with non-identifying data from client files (for example post codes, client genders, client ages, general claim types, generic occupations etc). No client names, street names, house numbers, medical details, National Insurance/Tax numbers, Financial Data or other identifying data will be provided for this purpose. If you are not happy for us to use any of your non-identifying data for the above purposes, please contact our Data Compliance Officer, Sean Gordon, by emailing him at email@example.com , or telephoning on 01482 787771.
(l) If you are an individual, you have a right under the Data Protection Act 1998 to obtain information from us, including a description of the data that we hold on you (including a copy of any recorded call involving you). Should you have any queries concerning this right, please contact our Data Protection Compliance Officer, Sean Gordon. We may charge you £10.00 for providing you with any such information. VAT will not be added to the charge.
(a) We may correspond with you by email unless you advise us in writing that you do not wish us to do so. You acknowledge that email may not be secure. Email will be treated as written correspondence and we are entitled to assume that the purported sender of an email is the actual sender and that any express or implied approval or authority referred to in an email has been validly given. You consent to us monitoring and reading any email correspondence travelling between you and any mail recipient at M_Company_Name.Text .
(b) We will aim to communicate with you by such method as you request. More often than not this will be in writing, but may be by telephone if it is appropriate. We may need to virus check disks or e-mails, but unless you withdraw consent we may communicate with others when appropriate by e-mail or fax but we cannot be responsible for the security of correspondence and documents sent by e-mail or fax.
2.9 Rights of Third Parties
(a) Except as stated otherwise a person who is not a party to this agreement shall not be entitled to enforce any of its terms.
2.10 Client Satisfaction
(a) The majority of our clients are very happy with the service we provide them, but in the event that you have any cause for concern, including about a bill, then please be aware that you are entitled to make a complaint. Please contact our designated complaints handler, Mr Neil Hudgell at our registered office. We take all feedback from clients seriously and operate a Complaints Handling Procedure, a copy of which is available upon request.
(b) We are usually able to deal with any concerns you have promptly and to your satisfaction, but if this is not the case, you will be able to make a complaint to the Legal Ombudsman provided you do so within six months of the end of our internal complaints procedure if you are still not satisfied with the outcome.
(c) In addition, there are time limits for bringing a complaint to the Legal Ombudsman, linked to the date of the act or omission giving rise to a complaint or the date on which you should reasonably have known there were grounds for a complaint. The relevant time limits are set out in the version of the Legal Ombudsman’s Scheme Rules in force from time to time and may only be extended by the Legal Ombudsman in exceptional circumstances. If you wish to bring a complaint to him, you should refer to the version which is in force at the time of your complaint. The Rules can be accessed at: http://www.legalombudsman.org.uk/aboutus/scheme_rules.html).
(d) You should also be aware that, when your complaint relates to a bill, the Legal Ombudsman will not consider your complaint while your bill is being assessed by a court.
(e) Ordinarily, a complainant cannot use the Legal Ombudsman unless the complainant has first used the firm’s internal complaints procedure. A complainant can use the Legal Ombudsman if:
(i) The complaint has not been resolved to the complainant’s satisfaction within 8 weeks of first making the complaint to the firm;
(ii) An Ombudsman considers that there are exceptional reasons to consider the complaint sooner, or, without it having been made to the firm first;
(iii) An Ombudsman considers that in house resolution is not possible due to an irretrievable breakdown in the relationship between the firm and the complainant.
(f) Legal Ombudsman Contact Details:
(i) Address: PO Box 6806, Wolverhampton, WV1 9WJ.
(ii) Telephone: 0300 555 0333
(iii) Email: firstname.lastname@example.org
(iv) Website: www.legalombudsman.org.uk
(g) Alternative complaints bodies (such as Ombudsman Services – http://www.ombudsman-services.org/ ) exist which are competent to deal with complaints about legal services should both you and our firm wish to use such a scheme. We do not agree to use any such alternative complaints bodies.
2.11 Limitation of Liability
(a) Neil Hudgell Limited holds Professional Indemnity Insurance covering £3 million. Further details can be obtained from our office or on request.
(b) Except as stated below, the total aggregate liability of us to you under or in connection with this Agreement (including any addition or variation to it), whether for breach of contract, negligence, breach of statutory duty, or otherwise, shall not exceed £3 million.
(c) You agree that the limitations on our liability as set out in this agreement are reasonable having regard to the nature of your instructions and the work involved and the availability and cost of professional indemnity insurance. We are, however, happy to consider options to increase these limitations, should you so require (which may result in an increase to our fees).
(d) We will undertake the work relating to your matter with reasonable skill and care.
(e) We accept liability without limit for the consequences of fraud by us or any of our Principals or Employees which is affected in their capacity as Principals or Employees and for any other liability which we are not permitted by law or rules of professional conduct to limit or exclude.
(f) If any part of this agreement which seeks to exclude, limit or restrict liability (including provisions limiting the amount we will be required to pay or limiting the time you have to bring a claim) is found by a court to be void or ineffective for any reason, the remaining provisions shall continue to be effective.
(g) We will not be liable under this agreement or laws of negligence for any deficiencies in the work we have undertaken if and to the extent that deficiencies are due to any false, misleading or incomplete information or documentation which has been provided to us (whether by you or any third party) or due to the acts or omissions of you or any third party. However, where any failure by us to identify any such false, misleading or incomplete information (or any failure by us to inform you that we have identified such information or any failure to act on your resulting instructions) constitutes negligence then we shall, subject to the other provisions of this agreement, remain liable for such failure.
(h) Despite anything else contained in this agreement, we are not under any obligation to act for you (or to continue to act for you) if to do so would breach any laws or professional rules. Therefore, we will not be responsible or liable to you for any loss which you or any other party may suffer as a result of our refusal to proceed with your matter where we would be in breach (or we reasonably believe that we would be in breach) of our legal obligations or our professional rules.
(i) You agree that you will not bring any claims or proceedings in connection with this agreement against our Regulated Principals or Employees personally, unless (and to the extent that) you are otherwise permitted to do so by law or our professional rules. Our Regulated Principals and Employees may enforce this clause even though they are not parties to this agreement.
(j) Proceedings in respect of any claim against us must be commenced within three years after you first had (or ought reasonably to have had) both the knowledge for bringing an action for damages and the knowledge that you had the right to bring such an action and in any event no later than six years after any alleged breach of contract, negligence or other cause of action. This provision expressly overrides any statutory provision which would otherwise apply; it will not increase the time within which proceedings may be commenced and may reduce it.
(k) If we and any other party or parties are liable to you together in respect of the same claim, then we shall only be liable to pay you the portion which is found to be fair and reasonable having regard to the level of our default. Therefore, we shall not be liable to pay you the portion which is due to the fault of such other party, even if you do not recover all or any money from such other party for any reason.
(l) If we are liable to you and any other party or parties would have been found liable to you together with us in respect of the same claim if either:
(i) You had also brought proceedings or made a claim against them; or
(ii) We had brought proceedings or made a claim against them for a contribution towards our liability, then any sum due from us to you shall be reduced by the proportion for which such other party or parties would have been found liable had those proceedings been brought or those claims been made.
(m) Nothing in this agreement excludes or limits our liability for:
(i) Death or personal injury caused by negligence;
(ii) Fraud or fraudulent misrepresentation; or
(iii) Any liability if and to the extent that it is not permissible in law for such liability to be limited or excluded.
2.12 Applicable Law, etc.
(a) These terms and our engagement letter shall be governed by, and interpreted in accordance with English law. Any disputes or claims concerning this agreement and any matters arising from it shall be dealt with only by the courts of England and Wales.
(b) If we or you do not enforce our respective rights under this agreement at any time it will not prevent either of us or you from doing so later.
(c) If any provision of this agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this agreement which shall remain in full force and effect.
2.13 Equality & Diversity
(a) 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.
(b) If you have any special requirements in relation to the way in which you would like us to handle your work, (for example, if you consider yourself to have a disability) please let us know.
(a) You may end this agreement (and therefore, your instructions to us) at any time by writing to us by post, fax or email (see clause 2.2(a) of these terms for details). However, we may be entitled to keep all of your documents and deeds while there is money owing to us (including fees and expenses which have not yet been billed).
(b) We may end this agreement (and, therefore, cease acting for you) in relation to any matter or all matters of yours but only on reasonable written notice and for good reason. Examples of a good reason include where you have not given us sufficient instructions, where you have not provided appropriate evidence of identification or we reasonably believe that the relationship between you and us has broken down.
(c) If your matter does not conclude, or we are prevented from continuing to act because of our legal obligations or our professional rules, we will charge you for any work we have actually done. Our charges will be based on our hourly rates set out in this Agreement (and where a fixed fee has been agreed, the charges will not exceed that fixed fee).
(d) If we cease acting for you, we shall (where relevant) inform the court or tribunal that we no longer act for you and shall apply to be removed from their records. We may charge you for doing so at our hourly rates applicable at the relevant time and those charges will be applied on the same basis set out in section 1.9 ‘Our Costs’ and section 1.11 ‘In the event you become liable to pay our bill of costs’, and for any expenses which we incur on the same basis.
(e) If you are an individual consumer (and not a business entity) and we have not met with your prior to entering into this Agreement or, if we entered into this Agreement with you away from our business premises, you have the right to cancel this Agreement 14 days of conclusion of this agreement. This right exists in accordance with The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Please refer to the ‘Cancellation Notice’ below for further information about your right to cancel and the conditions attached to the same.
(f) We will not start work on your file within the next 14 days, unless you have given us express consent to do so. If you would like our service to start within the next 14 days, please sign the Client Declaration enclosed, stating your wishes and return a copy to us.
(g) Once we have started work on your file within the cancellation period, on your instruction, you will be charged for any work done if you then cancel your instructions. You will have to pay us an amount which is proportionate to the work completed until we receive notice of cancellation from you, in comparison with the full coverage of this Agreement. These charges will be applied on the same basis as set out in section 1.9 and 1.11 of this Agreement and where a fixed fee has been agreed, the charges will not exceed that fixed fee.
(h) Please note that upon conclusion of your matter, we shall write to you to confirm it is at an end. If you have provided us with original documents which you require returning to you, then you will be able to collect them from our office. If it is necessary to send documents out to you, then we reserve the right to make a charge for the administration and cost involved in so doing.
(i) We will keep our file of papers (except for any of your papers which you ask to be returned to you) for no more than 6 years and on the understanding that we have your authority to destroy the file 6 years after delivering our final bill. We will not destroy documents you ask us to deposit in safe custody.
(j) We do not normally make a charge for retrieving stored papers or deeds in response to continuing or new instructions to act for you. However, we reserve the right to make a charge based on the time we spend on reading papers, writing letters or other work necessary to comply with the instructions.
2.15 Cancellation Notice
(a) This Notice is applicable to you if you are an individual consumer (and not a business entity) and we have not met with you prior to entering into this Agreement, or if we entered into this Agreement with you away from our business premises. If you are unsure, please contact us immediately upon receipt of these Terms.
(b) Instructions for Cancellation
Right to cancel
You have the right to cancel this contract within 14 days without giving any reason.
The cancellation period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right to cancel, you must inform us, Neil Hudgell Limited: No 2 @ The Dock, 46 Humber Street, Hull. HU1 1TU or at fax number 01482 787887 or at email@example.com, of your decision to cancel this contract by a clear statement (e.g. a letter sent by post, fax or e-mail).
You may use the attached ‘Cancellation Form’, but it is not obligatory.
To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
Effects of cancellation
If you cancel this contract, we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you chose a type of delivery other than the least expensive type of standard delivery offered by us).
We will make the reimbursement without undue delay, and not later than 14 days after the day on which we are informed about your decision to cancel this contract.
We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
If you requested to begin the performance of services during the cancellation period, you shall pay us an amount which is in proportion to what has been performed until you have communicated us your cancellation from this contract, in comparison with the full coverage of the contract.
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