Terms of Engagement
TERMS OF ENGAGEMENT (4 October 2018)
These Terms of Engagement (“Terms”) apply to all work carried out by Wisharts Law LLP (“the Firm”), which is a limited liability partnership registered in Scotland under number SO305694, for our clients except to the extent that changes are expressly agreed in writing with you in a Scope of Engagement Letter and/or by Mrs Frances Jane Wishart, and Robert Westwood Wishart the principals of the Firm. If we have already started work on your matter then, unless we are notified immediately in writing to the contrary, you agree that the Terms apply retrospectively from the start of our work for you
ACCEPTANCE OF TERMS OF ENGAGEMENT
Your continuing instructions to us will confirm your acceptance of these Terms. If you are not prepared to accept these Terms, please notify Mrs Wishart in writing without delay. Unless otherwise agreed, these Terms apply to any future instructions you may give to us.
Mrs Wishart will have overall responsibility for your relationship with the Firm and ensure our service is satisfactory.
Mr or Mrs Wishart will have overall responsibility for your particular matter. We will inform you of the names of any other lawyers or personnel likely to have significant day to day involvement in your work. We reserve the right to make changes to the personnel dealing with your work.
SCOPE OF OUR SERVICES
We are not responsible for any failure to advise or comment on any matter which falls outside the scope of our engagement or your specific instructions. We may set out the scope of our engagement or your instructions in one or more separate letters or emails to you (“the Scope of Engagement Letter”). Unless expressly agreed otherwise, our services will not include advice concerning the tax implications of any course of action or transaction, or advice on tax related matters generally.
Assumptions and exclusions which apply in each case (unless otherwise explicitly stated in the Scope of Engagement letter) are set out in the Scope of Engagement Letter.
Our fees are set taking these assumptions and exclusions into account.
AUTHORITY TO GIVE INSTRUCTIONS
In the absence of specific contrary instructions, we are entitled to assume that if the client is a company, we may take and act on instructions from any officer or other authorised person, if the client is a partnership, we may take and act on instructions from any partner; and if there are joint clients (e.g. husband and wife, civil partners, trustees or more than one individual shareholder), we may take and act on instructions from either or any of them, and that we may act on instructions given orally.
Where instructions are given on behalf of a private limited company, or a partnership, it is a condition of our acceptance of those instructions that, unless agreed with you in advance in writing, the directors or partners as the case may be will be jointly and severally liable as individuals along with the company or partnership for payment of our fees and costs.
Part of the conveyancing (property sale and purchase) process is the production of Advance Notices. These are lodged by the seller (or their lawyer on their behalf) in the Land Register. They give the buyer a “protected period” of thirty five days in which to register their title. If acting for a seller we require the seller’s consent to lodge an Advance Notice to protect the purchaser (otherwise the seller must lodge it) and to allow the buyer to lodge an Advance Notice to protect their mortgage lender, and if we are acting for a buyer we require that consent to enable an Advance Notice to be lodged to protect the mortgage lender.
You will be held to have consented to the lodgment of an Advance Notices in those cases.
In the absence of specific contrary instructions, we are entitled to communicate with you and with any relevant third parties (e.g. fellow advisers on your particular transaction or matter), by telephone, post, facsimile, e- mail and any other form of electronic and/or internet communication. You may be required to confirm oral instructions to us in writing or by e mail. You undertake to advise us immediately of any change to your contact details. We each agree to accept the risks involved in the use of e-mail.
FEES AND METHODS OF CHARGING
We will aim to agree with you at the outset the basis on which we will charge a fee for work undertaken and then confirm this to you in writing.
Where we provide a fee estimate, this is an indication, in good faith and on the basis of the information we have at the time, of our likely fee for carrying out the work. An estimate is subject to revision and is not a commitment to carry out the work for that fee. We will endeavour to notify you if it becomes apparent that our fee will exceed an estimate.
Where we provide you with a fee quotation, this is a proposal to carry out specific work for a stated fee. If you accept that proposal, then (subject to the other provisions of these Terms and the Scope of Engagement Letter), it becomes a commitment by us to carry out the instructed work for the fee quoted. The Scope of Engagement Letter will confirm the scope of the work we commit to undertake for that fee and any assumptions or bases on which the quotation is given.
If we are requested to carry out work in excess of that specified or we are required to carry out additional activity to perform the specified work as a result of circumstances not disclosed to us or which arise during the carrying out of the work, not reasonably foreseeable at the time the quotation was issued, then that work will be charged for on an agreed basis, failing which, at our then applicable default or standard hourly rates for the individuals concerned or, if higher, at the hourly rates on which the fee quotation was based.
If no specific basis for charging is agreed with you in writing, then our charges will be based on the number of hours spent dealing with your matter (at our then applicable standard hourly rates). Those standard hourly rates are not applicable to all matters and may not, by agreement, apply to the work undertaken on this or any other engagement. Higher rates may be applied taking into account the urgency of the matter, the need for specialist input, or the risk or value attached to the advice or other factors. Therefore, you should not regard standard rates as always applicable.
Our standard charge-out rates are revised by the Firm from time to time, usually annually. The increased rates will apply automatically to work done for you after the effective date of the change.
In any event in property transactions, any work carried out after the date of entry is liable to an additional fee, calculated in terms of this paragraph FEES AND METHODS OF CHARGING.
In non-property transactions all sums recovered on your behalf will be utilised in settlement of our professional fees and disbursements.
All work carried out in transactions which do not proceed to completion will be charged at our standard rate unless previously agreed in writing.
VALUE ADDED TAX (“VAT”)
VAT is charged at the current rate on all fees and on such outlays and expenses as bear it. Any fee estimate or fee quotation provided will be exclusive of VAT and outlays and expenses. The firm’s VAT number is 184 8528 66.
OUTLAYS AND EXPENSES
You authorise us to incur on your behalf such outlays and expenses as we consider necessary, which you will be required to reimburse to us. You may place a limit on the amount of fees and/or outlays and expenses which may be incurred without your prior approval, provided that the limit is realistic. If you wish to do so, please tell us in writing.
The Firm will add to its charges the cost of outlays and expenses incurred on your behalf, such as counsel’s fees, search fees, land registration/recording fees, court registration or administration fees or other charges related to executry or trust administration, costs of registering powers of attorney and the like, land and buildings transaction tax, additional dwelling supplement (second home tax), stamp duty, stamp duty land tax, stamp duty land tax higher rate (second home charge), bank charges, currency exchange costs, couriers and other third party accounts, travelling, subsistence and accommodation and photocopying charges for volume copying (more than a few pages) or items which are not A4 size.
Where, after consultation with you, other professional advisers, such as counsel, experts or overseas lawyers are engaged by us, they will be so engaged as your agent and you will be responsible for their charges in addition to our own. Outlays and expenses may be invoiced to you as they arise and may be invoiced after a fee has been rendered.
PAYMENTS TO ACCOUNT
A payment to account covering counsel’s fees and all other material outlays will generally be sought. You may be asked to make the payment to account at the time you instruct us on the relevant matter or at any time thereafter as may be specified in our Scope of Engagement Letter. If you fail to make a payment to account when asked to do so we may withdraw from acting. Recognising we are providing services of value to you from the outset of a matter, you may be required to make a payment to us on account of our fees. Any payments on account made by you will be credited against our invoice(s) to you for the relevant fees and/or expenses and outlays.
The Firm’s position is to issue fee invoices for work on a quarterly billing cycle. However, we may bill less often on an interim basis or, exceptionally, wait until the end of the matter. In matters which are likely to continue for longer than three months, the Firm will expect to render interim accounts.
In property transactions our fees will normally be due, following completion of missives, at or prior to settlement, and if funds are required from you, payment will be expected prior to settlement allowing clearance time. Where sufficient funds are available at settlement, we will deduct our charges from such funds unless otherwise agreed.
Payment is due within 14 days of the date of the account. If not paid within this time, we reserve the right to charge interest on the whole sum overdue, at 4% over the Royal Bank of Scotland plc base rate. If we receive payment of commission in respect of Property/Local Authority Searches such commission will not be accounted for to our clients.
PAYMENT OF BILLS
Payment of fees, outlays and expenses is due on your receipt of our invoice or at such other time (e.g. on completion of your matter) as may be specified in our Scope of Engagement Letter. If you wish to dispute any invoice, you should speak to Mrs Wishart without delay. You are responsible for our charges unless we have agreed otherwise in writing, even if we have agreed to send the bill to a third party or someone else has agreed to pay your expenses.
You are responsible for payment of our charges, as if the matter had completed satisfactorily, whether or not the matter proceeds to completion, unless otherwise previously agreed in writing.
As stated under the heading AUTHORITY TO GIVE INSTRUCTIONS, where you and other(s) are joint clients, you are each jointly and severally liable for our charges as are directors or partners where the client is a company or partnership – i.e. we may recover the full amount of our fees, outlays and expenses from any of you, unless otherwise agreed in writing with you.
Payment of fees, outlays and expenses shall always be made in pounds Sterling unless otherwise agreed in writing. If any of our charges are overdue for payment, we reserve the right to suspend work at any time and to retain documents and papers belonging to you, irrespective of the matter to which they relate, until all sums outstanding to us are paid.
Any money belonging to you which is received by the Firm in the course of dealing with your matter and which is not required for fees or outlays, shall be either held by us in accordance with the provisions of the applicable solicitors accounts rules; or, if you so direct, remitted to you immediately on receipt thereof or otherwise applied as you may direct subject to the terms of the paragraph TRANSFER OF FUNDS.
Any such funds held by us on your behalf will be deposited with banks within the Royal Bank of Scotland Group (“RBS”), unless we agree otherwise or you request otherwise in writing or by e-mail. We shall have no liability to you or any other party in respect of any loss or cost incurred (including without limitation losses as a result of delays) if you request that funds are deposited otherwise than with banks within RBS.
The Financial Services Compensation Scheme applies a £85,000 compensation limit to each individual client. If you hold other personal monies within the same banking group as the monies which we deposit on your behalf in your client account with that banking group, the limit remains £85,000 compensation in total.
We shall have no liability to you or any other party (other than liability up to the minimum compulsory amounts required by the applicable rules on solicitors’ professional indemnity insurance at the relevant time, details of which we can provide to you on request) in respect of any loss or cost incurred in circumstances where any bank with whom your funds have been deposited by us on your behalf (including, for the avoidance of doubt, any bank within RBS) suffers any insolvency event or proceedings or failure in the circumstances envisaged by the Financial Services Compensation Scheme or otherwise fails to comply with any instruction to remit funds to a third party or return funds to you or delays before complying with any such instruction.
We make no charge for the collection of interest on clients’ deposits but we are entitled to retain interest or commission paid to us by our banks.
TRANSFER OF FUNDS
Professional rules require that solicitors hold client’s money in a separate account to their own funds. The rules also provide that we may not use one client’s funds to fund another client’s transaction. It is imperative therefore that before we pay out funds on your behalf (usually at completion) that these have been received into our bank account. You may pay us by cheque (for which we must allow seven banking days for clearance) or electronically, in which case the funds are treated as cleared on the day of receipt
If you require us to transfer funds held on your behalf or to your order as part of a transaction or at the conclusion of a transaction, we shall require to have cleared funds in our account before effecting any transfer. You must give us clear unambiguous written instructions (by post and not by email or other electronic means) to be in our hands no later than 24 hours prior to the proposed date and time of transfer. We are unable to give assurances as to the timing of the receipt of funds into the recipient’s bank account, but you should note that this may take a few days. If we have instructed the transfer in accordance with your instructions, we shall have no liability to you or any other party in respect of loss or costs arising from any delay or error in respect of the transfer of funds.
COMPLETION OF RESIDENTIAL SALES
In transactions relating to the sale of residential property the sale price will normally be received by way of a solicitor’s cheque and on clearance of that cheque, which will normally take up to seven banking days, we shall disburse the free proceeds to you, if requested by cleared funds to your bank account, with any bank charges incurred being deducted from the sum transferred. If not so requested we shall issue our cheque to you for the free proceeds once we have cleared funds.
CONFIDENTIALITY AND LEGAL PRIVILEGE
Except as provided in the Terms, we will not disclose to any person confidential information relating to any matter handled by us on your behalf, except in the proper conduct of that matter; or if such information is in the public domain otherwise than by reason of improper disclosure by us; or where we are required to do so by law or by the rules of any applicable professional body or regulatory authority or by a court; or with your express consent.
Email and other modes of electronic and/or internet communication are not secure or error free communication channels and information communicated in this way could be intercepted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. Mobile communications are not secure and communications on a mobile phone are capable of being intercepted. You acknowledge that our email and internet system may be subject to monitoring by us. We shall not be liable for any loss or damage which you may suffer or incur as a result of our proper use of any such communication channels. We will take all reasonable steps to ensure that confidentiality is maintained in all our mobile and land line communications, and in e mail and other electronic and/or internet communications with you. We will use all reasonable procedures to check for the most commonly known viruses before sending information electronically. However, we will not use encryption technology or other additional security, unless specifically agreed with you.
USE OF INFORMATION AND PERSONAL DATA
We will be processing information relating to identified or identifiable natural persons. The processing of such information is governed by the General Data Protection Regulation (EU 2016/679). We will be acting as ‘controller’ within the meaning of the Regulation.
The information which we may collect includes name, address and contact details of our client, identification documentation for our client and client’s spouse, cohabitant, relations, beneficiaries, executors, trustees and attorneys and in some cases our client’s national insurance number.
We may collect additional personal data as is necessary properly to represent you and carry out your lawful instructions to us. This can include personal and business financial information, health and medical information, information on your family members and their circumstances.
Our lawful bases for processing your personal data are that we need the information to provide services to you, that it is necessary for our legitimate interests, and is necessary to comply with our legal obligations.
This information may be provided to others in the course of the transaction or where we are required by law to provide it.
Our general duty of confidentiality to you remains in place subject as always to any requirement to provide the information to government bodies or similar agencies if they have the authority to require production of information or data.
If you provide us with personal data relating to a third party, it will be your responsibility to ensure that all consents required by the General Data Protection Regulation 2016/679; the UK Data Protection Act 2018 and all relevant EU and UK data protection legislation or equivalent legislation in the applicable territory, have been obtained or, where such disclosure is otherwise permissible under that Act or related legislation, that the relevant requirements have been met.
CONFLICTS OF INTEREST
Our clients may include persons who operate in your area or a related area. We retain the right to act for these clients, subject to our professional duties in relation to conflicts of interest and our obligations of confidentiality.
We are members of The Law Society of Scotland and are subject to the Society’s Professional Rules. These state that we cannot act for two or more parties if they have conflicting interest. Please advise us at the outset if you are aware of any actual conflict or potential conflicts which may arise.
There are exceptions to the general rule and if we decide we can still act we will confirm this to you in writing. Sometimes during the course of a transaction it might not be known whether any conflict of interest exists. Should a conflict of interest arise we are obliged immediately to advise both you and the other party of such a conflict of interest. In such circumstances we must decline to act further for one party or both. We can, if necessary, advise as to another legal firm who may be able to act on your behalf. Even if we cease to act we are still entitled to payment of all our fees and outlays.
We undertake to carry out any matter in accordance with all appropriate professional standards and with due integrity. We will notify you immediately if we become aware of any conflict of interest and will discuss the position with you and take steps to resolve that conflict of interest promptly.
If we are able to and do act for two or more parties at the commencement of a transaction (which may include a lender in which regard see below under “Lenders/mortgagees”), but after the transaction has commenced a conflict arise or seems likely to arise we will require to cease acting for one or both parties and in that case we shall be entitled to make a charge for work done up to that date.
Where we act for more than one party any information provided by one party to us cannot be treated as confidential from the other party or parties for whom we act.
Where you are granting security (i.e. a standard security, mortgage, or floating or fixed charge) to a lender (or in some case another party for non lending purposes) you authorise us to provide the lender or other party and their agents, at any time during or after completion of the transaction, with whatever information they require regarding you or the property or relevant transaction including any information which might in other circumstances be confidential or covered by data protection rules.
In some cases we will be instructed to act for the lender or other party. We will require to comply with duties which are imposed by our relationship with the lender or other party and to share with them information about you and the transaction which would otherwise remain confidential. You authorise us to provide that information, at any time during or after completion of the transaction.
If at any stage we consider there is a conflict (including but not limited to where the lender or other party takes steps to enforce its security) we may need to stop acting for you and/or for the lender or other party but may still be obliged to provide information to the lender or other party.
If we act for you and/or the lender in respect of the lender obtain a mortgage from you, we do so only to give effect to the security which they require from you (whether or not we are instructed by them). We do not comment on or give advice regarding any the terms of any offer of loan to you or whether a particular loan or other financial product might be suitable for you. If you require advice on such matters you should contact a suitably qualified financial adviser.
You having the property insured for reinstatement value (which can usually be found in the Home Report or other valuation) will often be a requirement of the loan offer and often the lender will require their interest to be noted on the policy.
We do not arrange property insurance and do not give advice on it. It is your responsibility to arrange this. We will require to have that information from you not later than 2 days before the date you need to use the loan funds and sooner if the lender requires it. Failure to insure or provide the information is likely to delay your loan. We are not responsible for anything arising from your failure to insure or provide the required information.
When acting for a lender we will usually require to comply with the lenders’ requirements and instructions. These are mostly contained in the “CML handbook” (more formally the “UK Finance Mortgage Lenders’ Handbook for conveyancers”) which contains lenders’ requirements regarding most residential mortgages. The detail can be found on this website https://www.cml.org.uk/lenders-handbook. The lender may have other conditions of their loan and these will be in your offer of loan. You undertake to give us timeously all information to enable us to comply with the obligations imposed on us by the lender under the CML Handbook or their loan instructions to us and authorise us to expend any reasonable sums required to obtain that information.
We will not be responsible for complying with any conditions of the loan agreement you have entered into except so far as these are repeated in the lenders’ instructions to us or, so far as applicable, the CML Handbook.
Documents and papers which we have prepared for, obtained or provided to you may be the subject of our copyright or other intellectual property rights, or those of our licensors. You are not permitted to use, copy or reproduce any such documents for any purpose other than the original purpose for which they were provided to you without first obtaining our prior consent or that of our relevant licensor, nor are you entitled to permit any other person to do so.
OWNERSHIP OF WORK PRODUCT/ PAPERS LIES WITH THE FIRM
All work products, whether or not in writing, and all intellectual property rights and documentation (including working papers), developed by us during the course of the work carried out for you will be, and will remain, the sole and absolute property of the Firm. We may adapt, develop or use such work products for other clients and in other engagements including for research and legal training purposes. We may destroy or retain them without reference to you. If you wish to use any of these work products/papers for purposes other than those for which they were prepared, this will require our prior written consent.
We will store title deeds and original signed documents for you by prior agreement, but we may charge you for such a service. If we intend to charge you for such a service, we will notify you in advance. Alternatively we may send or return to you any documents which are not required by a lender in a purchase or a purchaser from you in the case of a sale.
USE AND PURPOSE OF ADVICE AND REPORTS
Any advice given or report issued by us is provided solely for your use and benefit and only in connection with the matter on which we are advising you and for any purpose specified when giving the advice. You agree not to provide such report or details of our advice to any third party without our prior written consent.
Irrespective of whether we give such consent, we assume no responsibility and have no liability to any third party to whom any advice or report is disclosed or otherwise made available, unless and then only to the extent otherwise expressly agreed in writing between us and such third party. You retain responsibility for deciding on your use of, and for implementation of, our advice or recommendations and for choosing to what extent (if any) you wish to rely on them.
LIMITATION OF LIABILITY
We shall incur no liability to you if we are unable to carry out your instructions as a result of any cause beyond our reasonable control. In such circumstances, we shall notify you as soon as reasonably practicable.
The aggregate liability to you of the Firm, its partners, employees and agents (together “Wisharts Law LLP Persons”), in contract, delict or tort or under statute or otherwise, for any loss, damage, cost or expense suffered by you arising out of or in connection with each engagement on which you have instructed us (including any associated engagements ancillary to the primary matter), howsoever caused, including by our negligence (but not wilful default), shall not exceed the amount (if any) specified in the relevant Scope of Engagement Letter or, if no amount is so specified, £2 million.
Subject to the overall limitation of liability as set out above, our liability to you shall also be limited to that proportion of the loss or damage (including interest and costs) suffered by you which is fair and reasonable after taking account of the contribution (if any) to the relevant loss or damage of you or of any other person(s) responsible and/or liable to you for such loss or damage. For the purpose of assessing such contribution, no account shall be taken of any limit on the amount of the liability, or waiver of all or part of the liability, of such person by any agreement made by you before or after the loss or damage occurred, nor of such person having ceased to exist or ceased to be liable.
In circumstances where you make a claim against us and we wish to claim contribution from a third party, but that third party’s liability to you has been excluded or limited thereby reducing the contribution we can recover from them, you will make an equal reduction in your claim against us. For this purpose “reduction” and “contribution” include a 100% reduction or contribution.
You shall not bring any claim personally against any Wisharts Law LLP Persons in respect of any loss or damage suffered by you arising out of the work carried out for you by us.
No Wisharts Law LLP Person shall have any liability to you for any loss of profit or revenue, loss of business or business opportunity, loss of anticipated savings, loss of goodwill or injury to reputation, or any special, indirect or consequential loss, in each case whether or not reasonably foreseeable by the Wisharts Law LLP Person.
Any claim from you against the Firm in connection with work carried out by us for you must be made in writing within 3 years of the date on which you became aware, or ought reasonably to have become aware, of circumstances giving rise to a potential claim against us.
We shall incur no liability to you for any loss or damage suffered by you arising from fraud, misrepresentation or withholding of information or inaccuracy of or omission from information, whether on your part or that of other sources of information relied on by us.
The benefit of the limitations and exclusions on liability set out or referred to in these Terms shall be held by the Firm as agent and trustee for each Wisharts Law LLP Person.
The limitations and exclusions on liability set out or referred to in these Terms shall not apply to any liability for death or personal injury caused by our negligence, liability arising as a result of fraud or fraudulent misrepresentation on our part or any other liability which cannot lawfully be excluded or limited.
The Firm has professional indemnity insurance under the Law Society of Scotland’s master policy. the current level of indemnity on the master policy is £2million per claim. We are also covered by the Scottish Solicitors’ Guarantee Fund, which is a fund established by Section 43 of the Solicitors (Scotland) Act 1980 for the purposes of making grants in order to compensate persons who, in the opinion of the Council of the Law Society of Scotland, suffer pecuniary loss by the reason of dishonesty on the part of a Scottish solicitor in connection with the practice of the solicitor.
INSTRUCTIONS TO THIRD PARTIES
If we engage others on your behalf (such as counsel, overseas lawyers and expert witnesses), whether in the UK or abroad, we will do so as your agent and we will not be responsible for any act or omission of those other persons.
The terms on which we agree to conduct your matters (whether or not contained in these Terms) are not intended to be enforceable by anyone but the parties to that agreement.
Where you are using third parties to provide information, advice or other assistance in support of the services we are providing to you, you will be responsible for the management of such persons and their performance, including the timeliness and quality of their input and work.
INCIDENTAL FINANCIAL BUSINESS
The provision of our legal services may include incidental financial business. We will not provide services constituting incidental financial business unless we agree to do so in writing.
Under the Financial Services and Markets Act 2000 (“FSMA”) we are an exempt professional firm and may undertake some limited regulated activities that are incidental to the provision of professional legal services under supervision and regulation by our designated professional body which is the Law Society of Scotland.
This is carried out without authorisation under FSMA from the Financial Conduct Authority (“FCA”) and, as such, you should be aware that the protections provided by or under FSMA to a person using the services of a person authorised by the FCA under FSMA are not available.
The Law Society of Scotland is our designated professional body. We are licensed by the Law Society of Scotland Society’s Practice Rule C2 to carry on “incidental financial business” which includes
(1) insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts;
(2) some limited investment business services; and
(3) limited mortgage mediation activity,
but in each case only insofar as these are integral to the professional services which we are providing to you. We do not conduct incidental financial business on a standalone basis.
This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by the Law Society of Scotland. The nature of the complaints and redress mechanisms provided to you in respect of any regulated activities carried out by us is set out in LIMITATION OF LIABILITY, COMPLAINTS and REGULATION OF THE FIRM. Please refer to this for further information on who to contact to make a complaint.
Our engagement does not, and will not, include giving you any advice on the merits of entering into any transaction relating to investments unless and to the extent that we agree in writing to give such advice as incidental financial business in relation to the provision of legal advice to you.
Otherwise we will assume that you have taken, or will take, your own decision to negotiate or enter into any such transaction solely on the basis of your own evaluation of the merits of the transaction and any advice received from a person authorised under the FSMA to give investment advice.
We will not communicate, either to you or on your behalf to any other person, any invitation or inducement to engage in investment activity unless that communication is exempt from, or otherwise not subject to, FSMA restrictions on financial promotions. Nothing we communicate to you or on your behalf is intended to be, or should be construed as, any such invitation or inducement unless that communication is exempt from, or otherwise not subject to, FSMA restrictions on financial promotions.
PROCEEDS OF CRIME ACT, MONEY LAUNDERING AND OTHER REPORTING
Anti-money laundering legislation requires us to obtain proof of identity from clients and to identify any beneficial owner, where relevant. Accordingly, you will be asked to supply us with the requisite information. This will normally be two items one at least one of which should be either a current full national passport or driving licence with photographic ID and the other can be a utility account or bank/building society statement not more than three months old addressed to you at your current address. Downloaded or electronic copies are not sufficient.
Failure or delay to provide us with any requested documentation or information may mean that we cannot act for you or must cease acting for you.
The Firm has reporting obligations imposed on it in terms of the Proceeds of Crime Act 2002, the Money Laundering Regulations 2007, the Terrorism Act 2000 and related Statutory Instruments which, in certain circumstances, require disclosure of confidential information to the authorities. In such circumstances we may be prohibited from notifying our clients of such a report and we may require to cease to continue to do any work on the client matter until such time as we receive formal authorisation from the authorities to do so. We shall incur no liability to you for any loss, damage, penalties, interest, costs or charges which you may suffer or incur if we are so prohibited from acting, or delayed in continuing to act, on your behalf.
We reserve the right not to handle any money or other funds on your behalf or on behalf of any person if we are not satisfied with the source of the money or funds and, in particular, if the money or funds are not being paid to us from an account with a UK clearing bank in your name. Please advise without delay if you intend to arrange the transfer to us of any money or funds otherwise than from an account in your name with a UK clearing bank.
In any event we will require evidence satisfactory to us of “source of funds” in all cases. If paying fees or other monies to us by cheque, bank draft, building society/bank counter cheque or telegraphic transfer of funds we shall require a letter from the issuing bank confirming the name of the account from which the monies have been withdrawn. Additionally we may ask for bank statements and further financial information relative to the source of the sums being paid to us.
We do not accept funds from or pay funds to third parties under any circumstances.
Any change in your circumstances during a transaction, e.g. marriage, may result in us needing to ask you for fresh proof of identity. We reserve the right to stop acting for you if you fail to provide us with the information requested of you in connection with these regulations.
If you do not or are unable to comply with any of the above, we may not be able to complete any transaction or to continue acting on your behalf and you may consequently suffer or incur loss, damages, penalties, costs, interest or charges if there is any delay in our accepting money or other funds on your behalf until we are satisfied with their source. We shall not be liable for any loss, damages, penalties, costs, interest or charges which you may suffer or incur as a result.
If paying funds to us electronically, payment should be made to the account details of which are given in our scope letter. As stated in that letter the account details given will not change in the course of a transaction and if you receive any call, email or other contact purporting to be from us advising of any change, disregard it and contact us immediately on our land line number 0141 370 0342. We will not be liable if you act on any such contact and suffer loss.
We do not accept payment in cash.
We should provide a service with which you are satisfied. If you have any comments regarding our services or about your bill, please contact Mrs Wishart in the first instance. If not satisfied you have redress to the appropriate body involved in the regulation of the Firm. Please see REGULATION OF THE FIRM.
REGULATION OF THE FIRM
You have a right to raise any concerns, not dealt with to your satisfaction by the Firm’s internal complaints procedure, with the Scottish Legal Complaints Commission (SLCC). This can be carried out online or in writing and should be brought to the attention of the SLCC within twelve months of the service ending. Full details are available from www.scottishlegalcomplaints.org.uk or by writing to The Scottish Legal Complaints Commission, The Stamp Office, 10-14 Waterloo Place, Edinburgh, EH1 3EG. In addition, clients in Scotland who are unhappy with their bill have the right to have the file audited by the Auditor of Court in a process called Taxation. As stated above, matters relating to incidental financial business should, be directed to the Law Society of Scotland.
Either of us may terminate our professional relationship in its entirety at any time by written notice given to the other.
In the event that you choose to terminate our professional relationship in its entirety you will pay us all fees and outlays and expenses incurred prior to such termination and due to the Firm in accordance with these Terms and our Scope of Engagement Letter(s), together with any further fees and outlays and expenses reasonably incurred by us in connection with the transfer of our files to another solicitor instructed by you, upon payment of which we will deliver up all deeds and documents as you may require.
In the event that you choose to terminate our appointment with respect to a particular matter, but continue to instruct us on other matters, you will pay us all fees and outlays and expenses incurred prior to such termination on the relevant matter and so due to us together with, if applicable, any further fees and outlays and expenses reasonably incurred by us in connection with the transfer of our file(s) in respect of that matter to another solicitor instructed by you.
Any provisions of these Terms and/or the Scope of Engagement Letter which by their nature extend beyond termination of our relationship or completion of the particular transaction or matter shall survive such termination or completion.
If any provision or part of any provision of these Terms is, or becomes, invalid, illegal or unenforceable, that provision or part-provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and, if required to achieve that, the provision or part-provision shall to the appropriate extent be deemed not to form part of these Terms. In such circumstances, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired.
APPLICABILITY TO WISHARTS LAW LLP PERSONS, SUCCESSORS & GROUP COMPANIES
References in these Terms and in any Scope of Engagement Letter to “we”, “us” and “our” shall be deemed to be references to the Firm, all references to Wisharts Law LLP Persons (as defined in LIMITATION OF LIABILITY) shall be construed accordingly.
We shall be entitled to transfer our rights and/or our obligations under these Terms and our Scope of Engagement Letter to any business which is a successor to or otherwise acquires our current business. Following any such transfers, references to the Firm and to Wisharts Law LLP Persons shall be construed accordingly by reference to such transferee business.
These terms apply to all companies which you control or, if you are a company forming part of a group, all companies in that group, where we are instructed to carry out work for such a company.
Any dispute arising out of the provision of services by us to you shall be subject to the exclusive jurisdiction of the Courts of the Scotland. However, we shall, in our sole discretion, be entitled to raise proceedings in any jurisdiction we deem appropriate.