Hatch Brenner
General Terms and Conditions
The terms in this document as supplemented and/or amended by any relevant letter of engagement (“Terms”) apply to each matter in relation to which Hatch Brenner undertakes work for you. The expressions “we”, “us”, “our” and “firm” mean or refer to Hatch Brenner and the term “partner” means a partner of Hatch Brenner. The expressions “you” and “your” refer to our client. The expression “matter” means a specific transaction, dispute or issue in relation to which you ask us to provide services.
1 Relationship Management
We seek to ensure that each matter on which we are instructed is dealt with by members of the appropriate department with the right level and area of expertise. This helps to ensure a cost-effective service. In practice this means that different people may be involved in the day-to-day conduct of a matter. To enable this to work well we believe that one person, usually a Partner, should have overall responsibility for managing our relationship with you. In your letter of engagement we give the details of the person we propose should manage our relationship with you and who else will be involved in your matter.
2 Setting Ourselves Standards
We operate a system throughout the firm of insisting our staff meet certain standards with regard to client care. These include:-
(a) using reasonable efforts to keep you informed about the progress of your matter;
(b) where appropriate giving you information promptly about any unexpected delays or changes in the services we are providing to you;
(c) returning your telephone calls the same day if at all possible;
(d) responding speedily to correspondence and where possible using plain English;
(e) providing you with an explanation of the legal work required, a cost estimate (when possible) and the likely timescales involved.
Please tell us if you feel we are not maintaining these standards, in return, we ask you to respond to our requests promptly and to pay our fees and expenses without delay.
3 Communications
You will find our full contact details in your letter of engagement. Please tell us if you have a preferred method of communication (eg telephone, email or fax) and of any confidentiality issues when contacting you. Unless we hear from you, we will use whatever mode of communication appears to be appropriate in the circumstances.
Our office opening hours are Monday to Friday 9:00am to 5:15pm. There are variable opening hours during the Christmas and New Year periods and notification of these dates will be made available to you leading up to the relevant periods. In the event of you requiring an out-of-hours/emergency service, contact numbers and details will be provided to you for those purposes.
Any email message sent to us goes directly into the inbox of the person it has been addressed to. Please be aware of the following:
· The firm is connected to a computer network and the exchange of email messages may be subject to delays outside our control.
· It is not possible to monitor the safe receipt of emails and that messages have been read.
· The confidentiality of email cannot be guaranteed.
· For the purposes of exchanging documents via the internet, our word-processing system is Microsoft Word.
· Password protection of documents will not be used, but will be considered if you ask us.
· We will not be responsible for any loss or damage arising from unauthorised interception, re-direction, copying or reading of emails including any attachments. We will not be responsible for the effect on any hardware or software (or any damage arising from any such effect) of any emails or attachments which may be transmitted by us (except where this is caused by our negligence or wilful default).
4 Your Instructions
Where instructions are given to us on behalf of a company, partnership or other organisation we shall be entitled to assume that the Terms have been approved by the appropriate officers of that organisation. We will assume that any person giving us instructions has actual authority to instruct us and we will be entitled to rely on any information provided by that person to us.
To enable us to provide services to you it is vital that you provide us with all relevant information as quickly as practicable. The information provided must be, as far as you know, accurate, complete, not misleading and up to date. You must tell us of any subsequent changes to the information provided and of any other information which may be relevant.
5 Confidentiality and Conflicts
We will respect the confidential nature of any information which we receive from you, subject only to our duty to disclose information to comply with our legislative and regulatory obligations. However, if, as the matter proceeds, other professional advisers become involved we shall assume, unless you have notified us otherwise, that we may disclose any such information to and discuss it with them as necessary.
We may be required to produce all or part of your file to assessors or similar, as part of an audit or quality check, and may be required to disclose confidential information to our advisers or pursuant to our professional indemnity insurance.
We have procedures designed to prevent our acting for one client in a matter where there is, or could be, a conflict with the interests of another client for whom we are acting. If a conflict does arise then it will be up to us to decide whether we can continue to act for both parties, for one, or for neither.
If our client consists of more than one person, organisation or other entity then the liability of those persons, organisations or other entities will be joint and several and they will be treated as a joint client. Each such person, organisation or entity by instructing us permits us to disclose to the other joint clients any information which we would otherwise be prohibited from disclosing under our duty of confidentiality. If any joint client does not want us to make those disclosures and ends that permission or if any conflict of interest arises between joint clients then we may suspend our work or cease acting for any or all of the joint clients.
If you are buying a property or taking a mortgage, we expect to receive instructions from your lender to act on their behalf. If so, we will have to pass them information you give us that might be relevant to their decision whether to finance the purchase. If you tell us things that you do not want the lender to know and they are relevant to the lender, we may have to stop acting for the lender and possibly also for you.
If at any time you become aware of an actual or potential conflict of interest, please raise it with us immediately. Where our professional rules allow, you agree that we may act or continue to act for another client in circumstances where we hold information which is confidential to you and material to the engagement with that client. We will not, however, disclose your confidential information to that other client.
6 Duty of Care and Other Professional Advisers
The services provided by us are for your benefit alone and solely for the purposes of the matter to which they relate. They may not be used or relied upon for any other purpose or by third parties. Our duty of care is to you as our client and does not extend to any third party. No third party shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms in this document (as amended or supplemented by any relevant letter of engagement).
We will, on your behalf, instruct, liaise with or coordinate advice from other professional advisers, including foreign lawyers. We will not be responsible for the accuracy or appropriateness of the advice given or work undertaken by those other advisers or for payment of their fees and expenses. We do not provide services relating to the laws of any jurisdiction outside England and Wales and cannot be responsible for the accuracy or appropriateness of the advice given or the work undertaken by foreign lawyers.
7 Exclusions and Limitations of Liability
We maintain professional indemnity cover through the following insurers:-
Primary Layer: QBE Insurance (Europe) Limited (Policy No. PISRQM012667) and
Additional Layer: Lead Insurer: APR London
Both insurers may be contacted at the following address:-
c/o AON Risk Services, Gibraltar House, Gibraltar Walk, High Street, Wickford, Essex SS12 9AX (Ref. HATCBREN/P51969)
The total liability of this firm, its partners and employees in connection with or arising, directly or indirectly, from any matter in relation to which you have asked us to provide services will be limited to the sum specified in the letter of engagement or, if no sum is specified, to an aggregate amount not exceeding £2 million. This limit will cover all claims of any sort whatsoever whether arising in contract, tort, negligence or otherwise and all losses, damages, costs and expenses (including interest). The cover is reviewed on an annual basis and it is not anticipated that the amount of cover will be reduced. No separate charge is made on account of the cost of that cover.
We shall not be liable for any failure to provide services on any issue which falls outside the scope of our engagement and we will have no responsibility to notify you of any change (or any consequence of such change) in the law or any event which occurs after we have provided our services to you.
We shall not be liable for any indirect loss or damage or any loss of profit, income or production arising in any circumstances whatsoever, whether in contract, tort, negligence or otherwise and howsoever caused.
Nothing in these terms shall exclude or restrict our liability to you for your death or personal injury resulting from our negligence or for fraudulent misrepresentation or in any other circumstances where liability may not be so limited or excluded under any applicable law or regulation.
Subject always to the limit on our liability set out in these terms, our liability to you shall be limited to such sum as it would be just and equitable for us to pay having regard to the extent of our responsibility for the loss or damage and the responsibilities of all other persons. You agree that our liability shall not be increased by:-
· any limitation, exclusion or restriction of liability you have agreed with any other person, or any joint insurance or coinsurance provision between you and any other person;
· your inability to recover from any other person, or your decision not to recover from any other person.
8 Papers and Documents
After completing the work we are entitled to keep all of your papers and documents while there is money owing to us for our charges and expenses. In addition, we will keep your file of papers for you in storage for not less than 1 year. After that, storage is on the clear understanding that we have the right to destroy it after such period as we consider reasonable or to make a charge for storage if we ask you to collect your papers and you fail to do so. We will not, of course, destroy any documents such as wills, deeds or documents which you ask us to hold in secure storage. No charge will be made to you for such storage unless prior notice in writing is given to you of a charge to be made from a future date which may be specified in that notice.
If we retrieve papers or documents from storage in relation to continuing or new instructions to act in connection with your affairs, we will not normally charge for such retrieval. However, we may make a charge based on time spent reading correspondence or other work necessary to comply with your instructions.
Any hospital or GP records will be confidentially destroyed on archiving of your file, which will take place after the matter has been concluded. Papers involving a child’s claim will not be destroyed until 6 years after they have attained majority.
9 Fees and Expenses
Our fees are calculated mainly by reference to the amount of time we spend on the matter. Other factors may also be taken into account, for example, complexity, value, importance to the client and urgency. We reserve the right to agree an uplift to our hourly rates to take into account these other factors. Although hourly rates are the normal way to calculate our fees, we may agree with you an alternative charging method in your engagement letter.
Please note that our charging rates are reviewed annually and you will be notified in writing of any change in these rates.
Time spent on the matter will include meetings with you and perhaps others; considering, preparing and working on papers; correspondence (including emails); legal research; preparing attendance notes; any time spent travelling; attending court; and making and receiving telephone calls. We record time in six minute units. More detail on our hourly rates will be set out in your letter of engagement and VAT will be added where applicable.
There are expenses incurred during a matter, other than our own, that are paid by us on your behalf (these are sometimes called disbursements). These expenses may include the fees of counsel and other experts, court fees, search fees, stamp duty land tax and special bank transaction costs. These items are charged at cost and payment on account of these expenses will usually be required. By instructing us you are authorising us to incur such expenses as we consider necessary. However, we will consult you before incurring any significant expenses.
We reserve the right to charge for telegraphic transfers, travelling expenses, photocopying, incoming and outgoing faxes and anti-money laundering search fees. VAT will be added where applicable and these amounts are shown in the bill as profit costs.
10 Client Money
Where we receive money from you which is to be applied on your behalf, it will be held in a separate client bank account which will be subject to the provisions of the Solicitors’ Accounts Rules. Deposit interest paid to UK residents by us will be paid without deduction of tax. It is your responsibility to declare sums so received for tax purposes. As required by the Solicitors’ Accounts Rules, money held by us will be taken in payment or part payment of our invoices within 14 days of the date of the invoice, unless that money is held for any other purpose.
Where we make payment of money to you or to another person on your behalf, it will usually be by cheque sent in the ordinary post or an electronic funds transfer (eg via CHAPS). Whichever payment method is used, we do not accept any responsibility or liability for any losses arising in respect of any interception, appropriation, misuse or delay in receipt.
11 Billing and Payment Terms
We reserve the right to bill monthly or on another interim basis. We reserve the right to ask for an initial deposit on account of general costs and expenses. The deposit will be used to settle our bills when they are rendered after the work has been done. As and when that sum becomes exhausted we may apply to you for further sums on account. We will if requested try to give an indication of anticipated future expenditure. This is, however, sometimes difficult and any figures given can only be estimates. We require you to make a payment within 28 days of a request for further monies, failing which we reserve the right to cease doing any further work on your matter. Bills may be paid in person by debit or credit card. Payments by credit card only (not by debit card) will, however, be subject to a standard bank processing charge of 2.5% of the amount paid.
Our bills are due for payment on receipt without any deduction, set-off or counterclaim. We reserve the right to suspend or terminate provision of further services until payment is received. If you do not pay our bill when it is due, we reserve the right to charge interest on it at 4% above National Westminster Bank plc base rate (‘the Overdue Rate’) (from time to time on a daily basis from the date on which payment of our bill is due) and not to carry out any further work on the matter until our bill and any interest has been paid. We will also be entitled to retain property belonging to you, together with our own papers relating to the matter, until all sums outstanding to us are paid.
If you are not satisfied with the amount of our fee, you have the right to take the following courses of action:
1) In the first instance we would encourage you to raise the issue of the fee being charged with the person dealing with your matter or alternatively with Alan Dobbins, the Managing Partner.
2) As an alternative, you may be entitled to have your charges reviewed by the court (this is called ‘taxation’ or ‘assessment’) as set out in section 70, 71 and 72 of the Solicitors Act 1974.
3) You are also entitled to lodge a complaint with the Legal Complaints Service. They can be contacted as follows:
Website: http://www.legalcomplaints.org.uk
Telephone: 0845 608 6565
Address: Legal
Complaints Service
Victoria
Court
8 Dormer Place
Leamington
Spa
Warwickshire
CV32 5AE
Please however note that the following restrictions apply:
1) We are entitled to charge interest at the Overdue Rate on the outstanding amount of the bill in accordance with article 5 of the Solicitors (Non-Contentious Business) Remuneration Order 2009.
2) We are entitled to recover disbursements in any event, these will be indicated in a separate column on your bill. Disbursements represent payments that we have made on your behalf to a third party and are treated separately from our own costs.
3) If you wish to raise an objection, you must do so within one calendar month of our bill being presented (or receiving notification that the firm has deducted its costs from money held on account).
For the benefit of long-standing clients of the firm, please be advised that it is no longer possible to request a remuneration certificate from us and that the above procedure should now be followed. The practice of using remuneration certificates was abolished as at the close of business on the 10th of August 2009.
The current procedure can be found in 2.08 of the Solicitors Code of Conduct, available here: http://www.sra.org.uk/solicitors/code-of-conduct/195.article#r2-08 and this is currently known as the “emergency” rule.
We anticipate that the Solicitors Regulation Authority will bring in a new permanent rule in late 2009. We will advise you of the details of the new rule once it is in place. This new rule should replace the “emergency” rule with immediate effect.
If you have any questions or concerns, please do not hesitate to contact us.
12 Termination of Instructions
You may terminate your instructions to us in writing at any time. We may also bring instructions to an end where we have reasonable grounds for doing so. If we decide to stop acting for you, we will tell you the reason and give you reasonable notice in writing.
We are entitled to keep all your papers and documents while money is owing to us for our charges and expenses. If at any stage you do not wish us to continue doing work and/or incurring charges and expenses on your behalf, you must tell us clearly in writing. If instructions are terminated you will be liable for fees arising and payments made or committed up to the date of termination of the instructions, together with any fees or payments for services necessary in connection with the transfer of the matter to another adviser (in which case we will charge for services provided in accordance with the hourly rate prevailing at the relevant time). VAT will be charged as applicable.
13 Complaints
If you have concerns or queries about the services that you obtain from our firm, please in the first instance contact the partner responsible for your matter as detailed in your letter of engagement. We will try to resolve any problems quickly and operate an internal complaints handling system to help us to resolve the problem between ourselves. In the event that you are unable to resolve the matter with the partner please do not hesitate to contact Alan Dobbins, who is our managing partner. If for any reason we are unable to resolve the problem between us, then we are regulated by the Solicitors Regulation Authority and complaints and redress mechanisms are provided through the Solicitors Regulation Authority and the Legal Complaints Service.
14 Resolution of Disputes
These Terms are governed by and will be construed in accordance with the law of England and Wales. You and we irrevocably agree to submit to the jurisdiction of the courts of England and Wales over any claim or issue arising under or in connection with the Terms and you and we waive any objection to proceedings being brought in those courts on the grounds of venue or on the grounds that such proceedings have been brought in an inappropriate forum.
15 Investment Advice
We are not authorised by the Financial Services Authority under the Financial Services and Markets Act 2000. Therefore, we may refer you to someone who is authorised to provide any necessary advice. However, we are able, in certain circumstances, to offer a limited range of investment services to clients because we are regulated by the Solicitors Regulation Authority. We can provide these investment services if they are closely linked with the professional services we have been engaged to provide.
We are included on the register maintained by the Financial Service Authority so that we can carry on insurance mediation activity (which is broadly the advising on, selling and administration of insurance contracts) where that work is incidental to the matter on which we are instructed. 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 Services Authority website at www.fsa.gov.uk/register.
16 Equal Treatment
We are committed to promoting equality and diversity in all of our dealing with clients, third parties and employees. We will not discriminate in the way we provide our services on the grounds of sex (including gender orientation), marital status, race, colour, religion, sexual orientation, disability, age, nationality or ethnic or national origins.
17 Severability
If any Term is found by any court of competent jurisdiction to be illegal, invalid or otherwise unenforceable then that provision shall, to the extent necessary, be severed and shall be ineffective but without affecting any other Term.
18 Clients with Disabilities
If you have a disability please let us know. We will be pleased to make all reasonable arrangements to ensure that our services are accessible to you.
Arrangements can be made for our terms and conditions to be made available on request on audio tape, large text or braille.
Any reasonable adjustments made on your request will be borne by us and will not be passed onto you as an expense.
19 Introductions and Referrals
Where we have a relationship with a third party (for example a funder, fee-sharer or introducer) which relates to any instruction from you, we will disclose that relationship to you and provide details of any payments made.
Referrals under the Solicitors’ Code of Conduct 2007
The firm is on the panel of approved/recommended Solicitors of the following firms/bodies:-
· the Daily Telegraph/Contact Law;
Clients who are referred to us under these schemes are informed that in consideration of the referral of clients to the firm, the firm pays :-
· The Daily Telegraph/Contact Law :-
Ø an annual subscription of £1,500 plus VAT;
Ø an introduction fee equal to 15% of our invoice costs exclusive of VAT and disbursements on each matter introduced.
Payment of these referral fees will not, however, affect our normal charges to clients and we will charge in all cases the same fees as those charged to other clients for the same or similar services.
HATCH BRENNER
Tel: 01603 660 811
January 2010
HATCH BRENNER
Client Summary of Key Money Laundering Provisions
Solicitors’ obligations in relation to Anti Money Laundering and Combating Terrorist Financing (AML / CTF) have existed since 2002. Our profession was brought within the AML / CTF umbrella because we handle so much of other people’s money – client money. We are seen as ‘gatekeepers’. Those who have money to ‘launder’ are likely to seek to use our services in all manner of ways – some seemingly legitimate, others downright illegal. Often the matter will be ‘dressed up’ to look like a legitimate activity.
Solicitors are legally obliged to police likely illegal activity and if we get it wrong we are in line for severe penalties, including imprisonment. This area is policed by the Serious Organised Crime Agency (“SOCA”).
But what is money laundering?
Money laundering is the process by which the proceeds of crime, and the true ownership of those proceeds, is changed so that the proceeds appear to come from a legitimate source. There are three acknowledged stages of money laundering. First the “placement”. This occurs when cash generated from crime is placed in financial systems. The middle stage is “layering”. After the proceeds of crime have been placed into the financial system, layering occurs when the money passes through a series of complex transactions in order to obscure the origin. Finally “integration” concludes the laundering process. Once the origin of the funds has been obscured, the funds can reappear as legitimate funds or assets.
Whilst the above may conjure pictures of drug running and multinational crime syndicates, money laundering is now deemed to occur not only in such sensational examples as above, but also the mundane area of tax evasion and benefit fraud. Moreover, there is no “de minimis” rule. A ten pound “cash in hand job” could be sufficient to oblige us to take action.
The substantive law
There are two quite separate issues to consider.
Firstly, we must be aware of the primary money laundering offences as set out in the Proceeds of Crime Act 2002 (“POCA”).
Secondly, we must abide by the duties imposed on us by reason of coming within the “regulated sector”. This commenced on 1 March 2004 by way of the Money Laundering Regulations 2003 (“ML Regs 2003”). The ML Regs 2003 have been repealed and replaced, as of 15 December 2007, by the Money Laundering Regulations 2007 (“ML Regs 2007”).
THE PRIMARY MONEY LAUNDERING OFFENCES
Section 330 POCA – failure to report
This first offence straddles our obligation within the regulated sector and the new primary offences. Section 330 of POCA is a new primary offence but it relates to failures to report knowledge or suspicion of money laundering acts within the regulated sector.
Section 19 of the Terrorism Act 2000
This provides that anyone must report as soon as practicable to a constable (or SOCA) if they know or suspect that another person has committed a terrorist financing act based on information which came to them in the course of their working life.
Section 327 POCA
Under Section 327 it is an offence to conceal, disguise, convert, transfer or remove criminal property from England and Wales, Scotland and Northern Ireland.
Concealing or disguising criminal property is widely defined to include concealing or disguising its nature, source, location, disposition, removal, ownership or any right connected with it.
Section 328 POCA
Under section 328 POCA it is an offence to become involved in an arrangement which a person knows or suspects will facilitate the acquisition, retention, movement or control of criminal property by someone else. Arrangement is a wide term and can include, but is not limited to, transactions. We must be particularly aware of this section as land and matrimonial transfers/arrangements blighted by money laundering will fall within the definition of the offence.
Section 329 POCAhgjgh
Under section 329 it is an offence to acquire, use or have possession of criminal property.
Solicitors can easily become embroiled in these offences. Where they have knowledge or suspicion that their client (or another party) has committed a money laundering act they must report the matter to SOCA or risk going to prison themselves. Moreover, if a solicitor should have had knowledge or suspicion, the same applies. Solicitors must be on their guard.
Sections 333 and 342 – tipping off
An offence is committed under Section 333 if you “tip off” the money laundering suspect that a report is being made to the Money Laundering Reporting Officer (“MLRO”) or to SOCA. An offence is committed under Section 342 if an investigation into money laundering is prejudiced by informing either the person who is the subject of the report or even someone other than the person named in the report.
THE OBLIGATIONS LAID DOWN BY THE MONEY LAUNDERING REGULATIONS 2007
Solicitors have been subject to money laundering regulations since 2004. The most recent regulations came into force on 15 December 2007.
We are obliged to establish such procedures of internal control and communication as may be appropriate for the purpose of forestalling and preventing money laundering.
Hatch Brenner has invoked many procedures since 2004, which have been adapted to take into account the further obligations set out in the ML Regs 2007. These include appointing a MLRO and ensuring that all relevant clients are accurately identified.
Failure to comply with the ML Regs 2007 is an offence in itself, irrespective of whether money laundering has actually taken place.
The offences mentioned above apply as much to our clients as they do to us. If another party has acted suspiciously, we will assist our clients in protecting themselves. Whilst we hope it never happens, our clients need to be aware that if we suspect them of wrongdoing, our hands are tied. In many circumstances, we will have to report them to SOCA.
HATCH BRENNER
Tel: 01603 660 811
January 2010