TERMS OF BUSINESS
from 1st January 2013 all work the Firm does for its Clients is
governed by these terms and conditions and any agreed written variation.
M J Darby & Company is regulated by the Solicitors Regulation Authority in England and Wales under registered number 49535.
these terms and conditions: the "Firm" means M J Darby & Company
Solicitors. The "Client" means the person, firm or company purchasing
services from the Firm.
The Client relationship is solely with
the Firm, and the Firm has sole legal liability for the work done for
you and for any act or omission in the course of that work.
2. BASIS OF THE RETAINER
Firm contracts on the basis of these Conditions and any Terms of
Business letter provided at the outset of your matter only. Acceptance
by the Firm of any instructions from its Clients shall be upon such
Conditions and Terms of Business and shall override any other terms and
conditions stipulated or incorporated by its Clients in their
instructions or in any negotiations (save as shall have been expressly
agreed orally or in writing by the Firm). No variation or
representation will be binding on the Firm unless confirmed in writing
by a duly authorised representative of the Firm.
3. FEES AND DISBURSEMENTS
3.1 Charging Policies
3.1.1 Charging Policy - Non Fixed Fee
3.1.2 Fees will normally be charged on a time spent hourly charge basis.
At the outset of a matter, the Firm will have been able to initially
assess the work which it is to undertake on behalf of its Client and
will give its Client an estimate of the total time which it thinks this
will take, and the total charges which it envisages will apply,
including any disbursements (i.e. payments to be made to third parties
in connection with its work) to the extent that the Firm is able to do
so. Please note that this is an estimate which is set out in the
initial letter to the Client confirming its instructions. The Firm may
revise the estimate from time to time and will advise the Client in
writing of any such revision.
3.1.4 The Client may at any stage
set an upper limit for the amount the Firm is able to charge the
Client, by notice in writing to the Firm. (Save where that limit has
already been exceeded so that the Client will not be entitled to any
repayment or credit) once the Firm has done work whose value is up to
that limit, the Firm will cease to do any further work, unless and
until the Client authorises the Firm in writing to proceed.
3.1.5 Charging Policy - Fixed Fee
In some cases, it may be more appropriate for the Firm to agree a fixed
fee with its Client. In such a case, save in the circumstances set out
in Paragraph 3.1.7 below the amount charged will not vary accordingly
to the amount of work done. This is contained in the initial letter to
the Client from the Firm confirming its instructions.
initial letter to the Client confirming the Firm's instructions will
identify if a fee is only payable upon the successful completion of the
matter. In any event all disbursements incurred to date are payable by
the Client whether or not a matter proceeds to a successful completion.
If any unexpected extra work becomes necessary, the Firm will agree
with the Client what the nature and extent of that work is, and the
reasons why it is outside the scope of what it originally agreed. The
Firm will give a supplementary estimate of the likely costs of the
extra work and agree with the Client before commencing the work. If the
Firm cannot reach an agreement it will not be able to carry out the
extra elements. If that prevents progress being made with the main
work, and that has to cease, the Firm will be entitled to be paid for
the work done to date according to the above principles.
Disbursements (payments to third parties) of more than £20 will not be
paid out by the firm unless we hold sufficient monies from the Client
on account to cover disbursements in full.
3.2 Non-Contentious Work
The Firm's charges for non-contentious work will be governed by the
Solicitors' (Non-Contentious Business) Remuneration Order 2009 (S.I.
2009 No. 1931). which provides for Solicitors' remuneration to be fair
and reasonable. A copy of the Order will be supplied on request.
Where non-contentious business is particularly complex or involves
substantial value or responsibility there may be an additional element
in the fee to reflect this.
3.3 Contentious Work
Following the issue of court proceedings charges are governed by the
Solicitors Act 1974 which provides for the Court in the event of
adjudication to decide what charges are reasonable, a procedure known
as "detailed assessment".
3.3.2 In all other cases prior to the
issue of court proceedings charges are governed by the principles set
out in Clause 3.1 above.
3.3.3 The Client is primarily liable to
pay the Firm's costs even if successful in litigation against another
party. The Firm will not wait for recovery of costs from a third party
for payment of the Firm's costs. If successful in litigation, the
Firm's Client may be entitled to recover costs from the other party to
the proceedings. However, the Court's assessment of these costs rarely
results in a full recovery by the successful Client. In those
circumstances Clients will remain responsible for the payment of any
shortfall to the Firm. If the other party is funded by the Legal
Services Commission (often known as "Legal Aid"), no costs are likely
to be recovered.
3.3.4 The Client may be liable for his or her own costs even if they are 100% successful.
In Civil Litigation matters the amount recovered from the opponent will
be taken to discharge the Firm's costs before being paid to the Client
unless the Client has already discharged those costs in full.
If the Client withdraws from the action he or she will normally be
responsible for their own costs as well as those of their opponent.
If the case is funded by an insurer the Firm is under a duty to report
the prospects of success and as a result of that report funding may be
3.3.8 A costs order made in favour of the Client does
not mean automatic recovery of the Client's costs as the opponent may
not be able to pay and enforcement proceedings will then be necessary.
Such enforcement proceedings will be treated as a new matter and will
be charged as additional work.
3.3.9 The Client is likely to be liable for their opponent's costs in addition to their own costs if he or she loses.
In Civil Litigation matters where the opponent makes a payment into
Court of part of the Client's claim, if that payment or an offer of
payment is not accepted and the final judgment is for the same amount
as paid or offered or a lesser amount, then the Client will have to pay
the opponent's costs from the date of the payment or offer in addition
to the Client's own costs.
disbursements (including for example, but not limited to, Court fees,
Counsel's fees, fees for expert's reports, Stamp Duty Land Tax, search
fees and Land Registry fees) are incurred by the Firm on behalf of the
Client, they are payable by the Client to the Firm immediately on
request. These disbursements will be collected by the Firm prior to the
collection of any monies due pursuant to the Firm's invoice.
In the event that the Client terminates the Firm's instructions or for
any reason the business or matter does not proceed to completion or a
final determination then, the Firm will be entitled to charge in
accordance with the foregoing provisions for the time spent in dealing
with the business whether or not a fixed fee has been agreed. The time
spent will be charged by reference to an hourly rate details of which
will be provided to the Client in the initial letter from the Firm
confirming the Client's instructions.
3.4.3 The Client bears
primary liability for the payment of the Firm's charges and
disbursements in all cases even where an order for costs or contractual
indemnity has been obtained or it is expected that an order for costs
or contractual indemnity will be obtained against another party.
The Client is responsible for payment of the cost of seeking to enforce
any order for costs or contract for indemnity against another party.
3.4.5 The Firm's fees attract Value Added Tax at the rate currently applicable.
Payment of an invoice is due on presentation unless an extended payment
time has been agreed by prior arrangement. The Firm will normally
deliver invoices in between exchange of contracts and completion on a
conveyancing transaction or otherwise at intervals of between four and
twenty six weeks in respect of cases or transactions continuing for
more than three months. If a matter does not proceed to completion for
any reason whatsoever an invoice will be delivered when the Firm's work
ceases or the instructions to the Firm are terminated. Disbursements
are however, payable to the Firm by the Client pursuant to Condition
3.5.2 In the case of invoices remaining unpaid for a
period of fourteen days or more after the date of presentation, the
Firm may charge interest to the Client on the amount unpaid, calculated
on a daily basis at the statutory rate from time to time in force from
the date of delivery of the account without prejudice to any other
rights of the Firm. The Firm also reserves the right to recover any
reasonable legal or third party fees in connection with the collection
of debts due to the Firm.
3.5.3 Payment on or before the due
date is of the essence of the Contract and in the event of a Client
failing to make payment on the due date the Firm reserves the right to
decline to act any further.
3.5.4. If the Firm is working on
behalf of the Client and anyone else as well, the Client's liability to
the Firm will be joint and several i.e. the Firm will be able to claim
the whole amount owed to it from any single party.
payment of the Firm's fees remains outstanding for 14 days or more the
Firm will not carry out any further work in the Client's matter and
will be entitled to exercise a lien over the client's file and papers.
This means that the Firm does not have to provide the Client with the
file or a copy of it, or any papers, until all outstanding monies are
3.6 Public/Third Party Funding
3.6.1 In certain
cases the Client may be eligible for Legal Aid Funding or funding by an
insurance policy and the Firm will discuss this possibility with the
Client whenever appropriate.
4. CLIENTS' MONIES
the Firm holds money on the Client's behalf, interest will be paid to
the Client in accordance with the Solicitors' Accounts Rules 2011
(subject to the minimum amount and periods of time therein prescribed)
at the rate or rates from time to time recoverable by the Firm from its
bankers. The period from which interest will be paid will normally run
from the date on which cleared funds are received by the Firm until the
date of payment by the Firm of funds to or on behalf of the Client.
In the cases where the Firm is to make a payment on behalf of the
Client (for instances in a conveyancing transaction or as a settlement
payment in litigation) the Firm requires to be placed in cleared funds
at least one day before the proposed date for payment. If payment to
the Firm is by cheque, five working days from receipt should be allowed
for clearance. Where the client is obtaining a loan from a third party,
the Firm will request the advanced payment from that third party in
accordance with the foregoing. The third party may charge interest from
the date of issue of a cheque/payment.
5. SERVICE STANDARDS
5.1 During the retainer the Firm will endeavour to adhere to the following standards
5.1.1 to keep the Client regularly informed of progress of his matter
5.1.2 explain the legal work that may be required
5.1.3 advise of the cost/risk benefit of pursuing a matter
5.1.4 advise on likely timescales involved in a matter
Some or all of the above may often be subject to review and change.
In order for the Firm to be able to adhere to its service standards the
Client must provide clear and prompt instructions and appropriate
documentation on request by the Firm.
5.3 If the Client is
dissatisfied with the handling of his or her instructions by the Firm,
the Client may register the concern with his or her fee earner. This
may include a concern about the Firm's bill. If, following such
reference, the Client still remains dissatisfied, the Client may refer
the matter to the Firm's client care principal Michael John Darby, who
will cause it to be thoroughly investigated and will make a ruling and
the Client will receive a written response. The Firm will provide a
copy of its complaints procedure on request. If after following the
complaints procedure the Client still remains dissatisfied, or more
than 8 weeks have elapsed since making a complaint under the complaints
procedure without the complaint being resolved by the Firm, he or she
can refer the matter to the Legal Ombudsman, who can be contacted on
Telephone Number 0300 555 0333; or by email at
email@example.com; or by post at PO Box 6806,
Wolverhampton, WV1 9WJ. Some clients may not have the right to complain
to the Legal Ombudsman, for example:
- most businesses (unless they are defined as micro enterprises)
- charities or clubs with an annual income of more £1m, or
- trustees of trust with asset value of more than £1m
6. OUR LIABILITY
Firm maintains Professional Indemnity Insurance in accordance with the
requirements and rules of the Solicitors Regulation Authority. Details
of the policy and the territorial coverage of the policy are available
for inspection at the office of the Firm.
Despite the Firm's
best efforts it may make a mistake, by which the Firm means any breach
of its duties to its Client. If as a result of such a mistake the
Client suffers loss, the Client may be entitled to claim against the
Firm's insurance policy. No liability is admitted or accepted by this
statement. If the Firm is found liable, or it is accepted it is liable
to compensate the Client, the Client agrees that its liability is
limited in the following respects:
- The Firm's maximum liability
for any mistake (except for fraud) is �5 million (unless a different
amount is agreed with the Client in writing).
- This overall limit
applies whether the mistake affects just one piece of work the Firm
does for its Client or several, so long as it is the same or a similar
mistake or the transactions are connected.
- For the purpose of the overall limit, more than one mistake on a matter or transaction is considered as one mistake.
The Firm is not liable to the extent that its mistake results from
something the Client does or fails to do (such as giving the Firm the
wrong information, or not giving the Firm information at the time the
Firm asks for it or the Client failing to provide the Firm with
documents in the Client's control or possession).
- If others are
also responsible for the Client's loss, the Firm's liability is limited
to its fair share, whether or not the Client is able to recover the
rest from the others. These limits apply to the extent that they are
permitted by law.
- The Firm will not accept any liability for
matters that require tax advice but if such advice is required the Firm
may be able to refer the Client to an appropriate expert to whom an
additional fee will be payable.
7. STORAGE OF PAPERS AND DEEDS
The Firm will, following completion of each matter store the Client's
working papers either in hard copy or soft/electronic/CD copy as long
as it reasonably considers necessary following which it will
confidentially destroy them. Generally, this will be 7 years after the
file is completed. A nominal charge will be made for this service.
Currently the charge is £45 plus VAT per file. If your case comprises
more than one file the charge will be multiplied by the number of files
relevant to the case.
7.2 The Firm provides a custody service in
respect of Wills, Deeds and other securities. No charge is made for
this unless the property is registered at the Land Registry
If a client requests a copy of the Deeds or other documentation on the
clients file then the firm will charge 10p per sheet subject to a
minimum charge of £20 + VAT.
7.5 Without prejudice to any other
remedies, the Firm shall have a general right to retain all Deeds,
working papers and other property in it's possession and belonging to
the Client until all sums due from the Client to the Firm have been
paid in full.
8.1 The Client may terminate
its instructions to the Firm in writing at any time but the Firm will
be entitled to keep the Client's papers and documents while there is
money owing to the Firm for the Firm's charges, expenses and
8.2 In some circumstances the Firm may consider
that it ought to stop acting for the Client, for example, if the Client
cannot give clear or proper instruction on how the Firm is to proceed
or if it is clear that the Client has lost confidence in how the Firm
is carrying out its work. The same would apply if it appears to the
Firm that there is an apparent conflict of interest between the Client
and another one of the Firm's Clients or an error has been made which
makes it inappropriate for the Firm to continue to act and to provide
the Client with proper independent advice. In this regard the Client
should note that the Firm often has a duty to a third party that may
override its duty to the Client, for example its duty to the Court. In
such circumstances the Firm may also stop acting for the Client.
If the Firm decides to stop acting for the Client, the Firm will give
the Client notice of such a decision. On any termination for any
reason, the Firm will retain our rights to payment under these terms.
9. FINANCIAL SERVICES AND INVESTMENTS
legal work of the nature we do involves investments. The Firm is not
authorised by the Financial Services Authority (FSA), and so may refer
the Client to someone who is authorised to provide necessary advice.
However, the Firm can provide certain limited services in relation to
investments, provided they are closely linked with the legal services
it is providing to its Clients, as it is regulated by the Solicitors
10. MONEY LAUNDERING/CASH
the Firm is undertaking work on behalf of its Client which is regulated
work, as defined by the legislation governing money laundering, the
Firm will be obliged to carry out identity checks on its Client. The
Firm asks for its Client's co-operation in this regard. If the Firm is
unable to complete these checks it will not be able to carry out work
on its Client's behalf.
10.2 The forms of identification that
may be required by the Firm are certified copy passport or driving
licence (incorporating photograph and possibly the paper counterpart)
and either a utility bill, bank statement or credit card statement
showing the home address of the Client dated within three months of the
start of the retainer. If we meet with you the original documents
should be produced and the copies do not need to be certified.
It is important that the Client should understand that, in certain
circumstances, the legislation referred to above may oblige the Firm to
report suspicions involving possible money laundering and terrorist
financing to the authorities. The Firm is prohibited from advising you
of any such report it makes (known as “tipping off“).
as a result of the Firm complying with the terms of this legislation,
the Firm would be obliged to do, or refrain from doing, anything in
relation to the Client's work whilst the authorities investigate the
report, then the Firm shall not be liable for any consequences of that.
The Firm's policy is to only accept cash up to the sum of £1000. If the
Client circumvents this policy by depositing cash direct with the
Firm's bank the Firm reserves the right to charge for any additional
checks it deems necessary regarding the source of the funds.
If the Client is an off-shore company or if the Firm considers it
necessary in all of the circumstances the Firm will require additional
documentation to ensure that it complies with the law on money
11. PAYMENT OF INTEREST
All money received on
the Client's behalf will be held in the Firm's client account. Interest
will be calculated and paid to the Client at the rate set by the Firm's
Bank. This rate may change. The payment of interest is subject to
certain minimum amounts and periods of time set out in the Solicitors'
Accounts Rules 2011.
12. DATA PROTECTION
is registered under the Data Protection Act 1998. The Firm is therefore
authorised to collect and store personal data as to its clients. Please
note that the following terms of this paragraph apply to the data the
Firm holds at any time:
Personal data relating to the Client is being held electronically and in paper records and files.
only uses the Firm will make of that data are to carry out work on the
Client's behalf and for marketing purposes (unless at any time the
Client indicates that it does not want to receive any marketing contact
from the Firm).
The Firm takes reasonable steps to secure access, storage and transmission of any data collected and stored by the Firm.
The Firm will process data which it will collect in a way which is accurate, fair and lawful.
13. EQUALITY AND DIVERSITY
Firm is committed to promoting equality and diversity in all of its
dealings with clients, third parties and employees, and is required to
produce a written equality and diversity policy. Please contact the
Firm if you would like us to send you a copy of that equality and
14. FORCE MAJEURE
The Firm shall bear
no liability for loss, damage or delay howsoever arising caused by
circumstances outside its reasonable control of whatsoever kind.
any part of these Conditions is held by any Court or competent
authority as invalid, the validity of the remainder of these conditions
and of the remainder of the provisions in question shall not be
construction, validity and performance of this contract shall be
governed in all respects by the Laws of England. The Firm and the
Client submit to the exclusive jurisdiction of the English Courts.
M J Darby & Company is authorised
and regulated by the Solicitors Regulatory Authority Registered No 0049535