M&S Solicitors Limited - Debt Toolkit Terms & Conditions
1.1. Thank you for purchasing our Debt Toolkit product. This note sets the basis on which we have agreed to supply our services to you and provides you with other important information, including some that you are entitled to by law.
1.2. We, M&S Solicitors Limited, are a private limited company, registered in England and Wales with company number 4540260 and our registered office and address for correspondence is at 20 Newton Road, Heather, Leicestershire, LE67 2RD. We may also be contacted by telephone on 01530 266 000, by fax on 01530 266 020 and by email to the person you usually deal with or to firstname.lastname@example.org.
1.3. We are authorised and regulated by the Solicitors Regulation Authority (“SRA”). Our SRA Number is 369431. You can find a copy of the SRA Handbook, which includes the SRA Code of Conduct 2011 (“the SRA Code”) at www.sra.org.uk/handbook. That code regulates our activities and is binding on us and enforceable against us.
1.4. Our VAT registration number is 799 8101 72.
1.5. Further information about us, including details of our current professional indemnity insurance, may be found by visiting our website at www.mslaw.co.uk/legal.
2. HOW THE CONTRACT IS MADE
2.1. These are the terms you accept when agreeing to buy Debt Toolkit. The contract will be formed after you have clicked to accept these terms and we send you an email thanking you for buying the product.
2.2. No other terms are implied by trade, custom, practice or course of dealing.
2.3. You should print a copy of this letter and our terms or save a copy to your computer for future reference.
2.4. Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate.
3. OUR ROLE
3.1. We will supply the documents in our In- House Expert pack and keep those documents up to date for you to download whenever you wish to collect a debt. We will also provide telephone assistance through the help line that is part of that product as it is defined on our website. We may also from time to time supply the other products in the Debt Toolkit suite of products to you.
3.2 One lawyer will have overall responsibility for the day to day conduct of every matter you entrust to us and he or she may be assisted by other members of the firm if that is appropriate. When we believe that is appropriate we will let you know.
3.3 The law requires us to carry out your work with the reasonable care and skill that you can expect of a competent solicitor. In order to carry out our services in a prompt, effective and professional manner, we shall require your full cooperation and assistance throughout the matter. This may include the provision of information and documents requested by us, your compliance with any applicable timetables or time limits, the provision of prompt instructions by you and prompt settlement of our invoices (see paragraph 2.12 below).
3.4 Our duty of care is to you as our client and does not extend to third parties. Advice given by us is provided on the basis of the instructions to which it relates and is for your benefit only. Our advice may not be used or relied upon for any purpose other than the purpose for which it is specifically given and may not be used or relied upon by any person other than you without our prior written consent.
3.5 We will always disclose to you any limitations or conditions on our ability to act for you resulting from a relationship with a third party such as your funder, a fee sharer or an introducer.
3.6 We will not obtain any financial or other benefits from any third party arising from acting for you without disclosing that benefit to you.
4. BASIS OF OUR CHARGES
4.1 We will charge the fixed fees set out on our website. Where there is no fixed fee on the website we will quote a fixed fee for the work which you are free to accept or reject before we carry out that work. Occasionally it may not be possible to fix our fees and when that is the case we will give you an estimate and charge on our hourly rates which range between £100 and £325 per hour plus vat depending on the experience of the person doing the work and the complexity of the work we are being asked to do, but which for debt work usually range between £100 and £200 plus vat.
4.2 In common with many law firms, we usually record time in units of 6 minutes.
4.3 If we make payments on your behalf (disbursements) you will be liable to repay them to us.
4.4 In most complex matter we ask clients for a reasonable sum in advance on account of our fees, disbursements and expenses. Requests for payments on account may also be made periodically during the course of the matter. Total fees, disbursements and expenses may be greater than any payment made on account. If you fail to pay us promptly any amount required we shall be entitled to stop acting for you.
4.5 We will also be entitled to recover from you expenses such as outgoing international telephone calls and fax transmissions, video conferencing, courier charges, travelling expenses (including local travel), the cost of obtaining any necessary law reports and the cost of using on-line legal databases. In particular:
4.5.1 We may in the course of dealing with your matter produce photocopies which we shall charge to you at our then current rates (which for black and white A4 is currently up to 20p per sheet, depending on volume) plus VAT.
4.5.2 We shall charge £23 plus VAT for each automated transfer of monies made on your behalf or such other charge as our bank would charge for a bank initiated automated transfer.
4.5.3 If we are obliged to pay over-time to our non-fee earning staff on a particular matter for you, we shall be entitled to recover such over-time payments from you. In doing so, we shall give you as much information as possible in advance of undertaking such work.
5.1 We will usually submit invoices to you at regular intervals for the work carried out during the course of a matter. Any such invoice will not necessarily be the only or final bill for fees, disbursements or expenses incurred during the period to which the relevant invoice relates.
5.2 Our invoices are payable immediately on receipt.
5.3 We reserve the right to stop work on a matter and refuse further instructions from you where an invoice is not paid immediately on receipt by you. If we propose stopping work in these circumstances, we shall notify you and, wherever possible, discuss it with you before stopping work.
5.4 If all or part of an invoice remains unpaid for more than one month, we reserve the right to charge interest on the outstanding amount at the rate applicable to judgment debts or at the rate of three per cent above the Bank of England base rate, whichever is higher from time to time.
5.5 Our invoices are payable in pounds sterling, and overseas clients are required to pay by bank transfer to our bank in England in accordance with details we shall supply. You will be liable for any bank charges so incurred and such charges should be included in your remittance.
5.6 We have a procedure in place which details how we handle complaints about our services or bills which is available to you upon request. If you are not satisfied with our handling of your complaint, you may be able to ask the Legal Ombudsman to consider the complaint. Normally, you will need to bring a complaint to the Legal Ombudsman within six months of receiving a final written response from us about your complaint. See further paragraph 7 below. You are also entitled to object to the bill by applying to the Court for an assessment of the bill under Part III of the Solicitors’ Act 1974. The Legal Ombudsman may not consider a complaint about the bill if you have applied to the Court for assessment of the bill. If all or part of the bill remains unpaid we may be entitled to charge interest as specified above.
6. RESPONSIBILITY FOR OUR FEES
6.1 In all circumstances you are responsible for paying our fees, disbursements and expenses, whether or not a third party has agreed, or been ordered by a Court or arbitrator, to pay them.
6.2 If you are our client in relation to a matter together with any other person or entity, you and it/they will be jointly and severally liable to pay our fees, disbursements and expenses (i.e. we can claim the full amount from any or all of you).
6.3 When accepting instructions to act on behalf of a limited company, we may require a Director and/or controlling shareholder to sign a form of personal guarantee in respect of our fees, disbursements and expenses. If such a request is refused, we will be entitled to stop acting and to require immediate payment of any such amounts then owing.
6.4 If we are acting for you in court or arbitration proceedings for you and you are successful, the Court or arbitrator may order another party to pay all or part of the costs you have incurred. You should be aware that even if you are successful, the party who is ordered to pay all or part of your costs may not, in the event, be capable of paying them. It is also important to understand that there is usually a shortfall between the costs payable by another party and the actual costs incurred. You will still be liable to pay us the full amount of the fees, disbursements and expenses on receipt of our invoice; any sums subsequently recovered from the other party will be credited to your account when received. If the other party is legally aided, you may not recover any of your costs and expenses, even if you are successful.
6.5 You will also be responsible for paying the fees, disbursements and expenses of seeking to quantify and recover costs that a Court or arbitrator has ordered the other party to pay, or as a result of any agreed settlement.
6.6 In some circumstances (for example if you lose the case) the Court or arbitrator may order that you pay all or some of the costs of the other party/ies. This will be payable in addition to our fees, disbursements and expenses.
6.7 If you are unsuccessful in an an interim application prior to trial, the Court or arbitrator is likely to assess the successful party's costs and order their payment usually within 14 days. You will be responsible for payment of the assessed costs. Failure to pay may prevent you from continuing your case.
7. EXCLUSIONS AND LIMITATIONS OF LIABILITY
7.1 M&S Solicitors Limited will be providing the service to you and it is M&S Solicitors Limited that has the contractual relationship with you.
7.2 You agree not to make any claim whatsoever of any kind (whether in contract, tort, under legislation or otherwise) personally against any of the current or future shareholders, directors, employees, consultants or agents of M&S Solicitors Limited in respect of any event, act, omission or matter arising out of or related or connected to any work or services performed or to be performed (whether under this agreement or any other agreement between us, or otherwise). This does not affect your right to claim against M&S Solicitors Limited itself and nothing in this paragraph 9 removes the benefit of any protection given to you by our Terms
7.3 You acknowledge that it is intended that each current and future shareholder, director, employee, consultant or agent of M&S Solicitors Limited may rely on and enforce the provisions of this paragraph.
7.4 Your attention is drawn to the exclusions and limitations of our liability to you in our Terms.
7.5 The total liability to you (however arising) resulting from or in connection with this matter shall not exceed £5 million. Please note that our Terms also limit our liability to you in circumstances where third parties may also have a liability to you.
7.6 If anything in this paragraph gives you any cause for concern, please let us know immediately. We will be pleased to discuss your concerns with you.
8. OUR LIABILITY TO YOU
8.1 Any advice given by us:
(a) may not be disclosed by you or quoted, referred to or published in any public document or publication except with our prior written consent, except that you may disclose it to your employees or agents who normally have access to your papers and records, on the basis that they will make no further disclosure;
(b) is strictly limited to the matters stated in it and does not extend by implication to any other matter;
(c) is limited to the laws of England and Wales as applied by the English Courts and is given on the basis that it will be governed and construed in accordance with the laws of England and Wales; and
(d) is given as at the date of communication of the advice.
8.2 Unless we have specifically agreed otherwise, our work does not constitute a general retainer and there is no continuing obligation on us to act on your behalf. In particular, we will not be bound to notify you of any changes in the law or other changes of circumstances following the date on which the advice was given, which might affect the advice.
8.3 In the event that you are being advised by one or more other professionals in relation to any matter in which we are advising you and you have agreed a limitation of liability in relation to one or more of them, you agree that our liability to you will not be increased as a result of such limitation. Any liability we may have to you will be limited to that proportion of your total losses, damages, costs or expenses (after taking into account any contributory negligence on your part) as may be determined to be just and equitable having regard to the extent of our responsibility for such losses.
8.4 Unless expressly agreed by us in writing or provided for in these Terms, none of the terms of our engagement shall be enforceable by any third party (being any person other than us and you).
8.5 We shall not be liable to you if we are unable to perform our services as a result of any direction by the relevant authority pursuant to the Proceeds of Crime Act 2002, the Criminal Finances Act 2017, The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and such Act or regulation that replaces, amends or supplements them.
8.6 You agree that we (M&S Solicitors Limited) are acting for you and which has the contractual relationship with you. Our lawyers are not providing services on a personal basis to you – they are shareholders or directors or employees or consultants of M&S Solicitors Limited.
8.7 No single lawyer now or in the future employed or engaged by us accepts personal responsibility to you for any advice given to you or for work that we carry out for you. Accordingly you agree not to bring a claim whatsoever of any kind (whether in contract, tort, under legislation or otherwise) personally against any such lawyer for any loss or damage that you suffer as a result of the advice or work that we provide to you. This does not affect your right to claim against M&S Solicitors Limited itself. You acknowledge that it is intended that each current and future shareholder, director, employee, consultant or agent of M&S Solicitors Limited may rely on and enforce the provisions of this paragraph.
8.8 We do not accept that we have a legal responsibility to you or to others in connection with your case for any of the following losses, even if we had been told that you or other people may suffer them:
(a) Indirect financial loss
(b) Loss of profits or earnings;
(c) Loss of business opportunities;
(d) Loss of goodwill;
(e) Interruption to your business;
(f) Loss of expected savings;
(g) Increase in debt or failure to reduce debt;
(h) Reduction in the value of an asset; and
(i) Money we are holding for you being lost because of banking failure or problems.
8.9 If we are legally responsible to you, we will pay you no more than the level of insurance cover we hold, which is £5 million.
8.10 You are not prevented from bringing any claim against us for:
(a) Death or personal injury; or
(b) Any other liability that we cannot exclude or restrict by law or under our professional regulations.
8.11 If you are a company, we are not responsible for advising your shareholders, directors or employees, unless they have specifically asked us to do so. If we do so, the advice will be under a separate agreement with them.
8.12 Each of our members, directors, employees and consultants is entitled to the benefit of these terms under the Contract (Rights of Third Parties) Act 1999. However, we may change or end our contract with you without their permission.
A conflict of interests may occasionally arise which our professional obligations might prevent us from acting or continuing to act for you. Examples include where our interests conflict with yours or where there is a risk of the interests of one or more clients conflicting. We will discuss this with you when it is appropriate for us to do so
We may change these terms from time to time but not to your detriment. No variation to the note or these terms shall be binding on us unless agreed to by us by a Director in writing.
11. INTEREST ON FUNDS HELD FOR YOU
11.1 If we hold money for you, it will be held in a client account of a bank or building society in England & Wales. Unless you instruct us in writing to the contrary, it will be immediately available and will be held together with other client money in our general client account. It will be clearly identifiable in our records as held for you and for the specific matter on which we are instructed.
11.2 Provided we have dealt with such money in accordance with the SRA Accounts Rules 2011, we shall have no liability to you arising from any loss should a financial institution at which we place client money become insolvent or otherwise be unable or fail to meet its obligations. If you wish to obtain information on the operation and extent of the Financial Services Compensation Scheme, please see their website at www.fscs.org.uk.
11.3 Unless otherwise agreed with you in writing, we will account to you for any interest received by us on the money held in our client account for you, but only if:
11.3.1 it is held in our client account for a period in excess of 14 days; and
11.3.2 the amount of interest calculated by us in respect of it exceeds £50.
11.4 We will not account to you for interest where money is held for you because of any delay in you presenting a cheque we have sent to you, and you agree that we are entitled to charge you for the costs of cancelling and reissuing cheques to you which you have not presented. We will not account to you for interest on money held for payment of a professional disbursement where the recipient of that payment has requested a delay in settlement.
11.5 Where we do account to you for interest, our policy is to pay the interest rate which our Bank pays to us. That rate may not be as high as the rate obtainable by you were you to deposit those funds yourself. Rates at which we account for interest are available on request and will change from time to time.
11.6 We will account to you for interest on conclusion of your matter. We will return any money we hold for you promptly after the end of your matter, unless there is a reason why we need to continue to hold it. If there is, we will let you know the amount we continue to hold and the reason. If for any reason we are unable to trace you when it is time to return money to you or if you fail to present a cheque we send to you returning monies, you agree that we may donate to a charity of our choice any money remaining held by us on your behalf.
12. MONEY LAUNDERING
12.1 There may be circumstances where we are required to act in accordance with obligations or directions under the Terrorism Act 2000, the Proceeds of Crime Act 2002, the Serious Organised Crime and Police Act 2005, the Criminal Finances Act 2017, The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and/or any Act or regulation that replaces, amends or supplements them.
12.2 We specifically exclude all and any liability to you for any loss, damage, expense or liability, consequential or otherwise, and howsoever caused, arising from any act or omission on our part occurring as a consequence of compliance or attempted compliance with our obligations arising under the legislation identified in this paragraph 8, other than liability for personal injury or death.
12.3 We are obliged to keep our financial records for 5 years from the date of the last transaction to which they relate. If, within this time, you wish to have your file or papers we must take and keep copies.
12.4 In accordance with SRA guidelines it is our policy not to accept cash into our client account. If this policy is circumvented by depositing cash direct with our bank, we reserve the right to charge for any additional checks we deem necessary regarding the source of the funds. Money due to you from us will be paid by cheque or bank transfer, but not in cash, and will not be made payable to a third party.
13. ELECTRONIC COMMUNICATION
13.1 The SRA requires that, where we communicate with clients and relevant third parties by email, we must ensure that our clients fully appreciate the risks inherent in email communications and give their express consent to the inclusion of confidential material relating to their instructions in non-encrypted email.
13.2 In many instances, email may be the easiest and most convenient form in which to communicate with you and relevant third parties. However, emails are sent over the internet, which is an insecure medium of communication as messages can pass through the hands of unregulated service providers and networks used by the internet may be vulnerable to illegal hacking or forms of legal interception.
13.3 A large proportion of any information we transmit to you by email is likely to be of a sensitive and privileged nature. Because email communications are transmitted over a public network, we cannot accept responsibility for the accuracy or completeness of the contents of emails, or any attachments, as they are received by you. We also cannot guarantee the confidentiality of email correspondence, although we make every effort to limit the potential damage that could occur from confidential communications being seen by outside parties.
13.4 By giving us instructions you consent to us communicating with you, and third parties in relation to our work for you, by email. You thereby:
(a) consent to us communicating with you and relevant third parties by email;
(b) acknowledge that we cannot guarantee the confidentiality of any material included in non-encrypted email; and
(c) agree to waive any claim you may have against us with regard to the confidentiality of email communications.
13.5 If you are particularly concerned about the confidentiality of any aspect of any work we undertake for you and desire greater confidentiality than we are able to guarantee, please advise us and we shall ensure that we do not send emails relating to that particular matter.
13.6 Further, some employers enforce strict policies regarding personal email. If we are acting for you in your personal capacity and you ask us to use a work email address for you, we cannot accept liability for any problems that may arise with your employer as a result.
13.7 Where we communicate with you by email, any opinion or advice contained in our email is subject to these terms of business.
13.8 We use software intended to filter out unsolicited and/or undesirable emails and this may inadvertently reject legitimate emails from you or in relation to work we are carrying out for you. We cannot accept liability for any emails not reaching their intended recipient as a result of such software.
14. credit searches
We reserve the right to conduct credit searches in relation to you at any time and to stop acting for you if the results of the search are not, in our opinion, satisfactory.
15. confidentiality AND DATA PROTECTION
15.1 Solicitors owe a professional duty of absolute confidentiality to their clients that is qualified by law in only very exceptional circumstance that relate to very serious crimes.
15.3 You agree that we may, if so required by our insurers, regulators, auditors or other advisers (or if we reasonably believe that we are required to do so), disclose to them information and documents (including information and documents which are or may be confidential or privileged) relating to you or your affairs or to matters or transactions on which we are acting or have acted for you
15.4 We sometimes ask other companies to do other work on our files such as photocopying or typing to ensure this is done promptly. We will always seek a confidentiality agreement with these outsourced providers. If you do not want your file to be outsourced, please tell us as soon as possible.
15.5 We are registered as a data controller with the Information Commissioner’s Office, which is the regulator for data protection. Information which you provide to us may be personal data covered by the Data Protection legislation and the EU General Data Protection Regulation 2018 (“GDPR”). We will use the information you provide us primarily for the purpose of providing legal services to you and for related purposes, which may include:
15.1.1 addressing correspondence and related documents to other parties and opponents in any litigation, as well as other agencies such as the courts or Government agencies where relevant to the work we are doing for you;
15.5.1 updating and enhancing client records;
15.5.2 analysis to help us manage our practice;
15.5.4 statutory returns
15.5.5 legal, professional and regulatory compliance we are subject to, including our obligations to HMRC;
15.5.6 contacting you to provide you with details of our service, sending you legal bulletins and updates and details of seminars and other events we believe may be of interest to you; and
15.5.7 credit reference checks via external credit reference agencies and electronic verification checks.
15.7 The legal bases which are relevant to the work we undertake for you are mostly in order that we can satisfactorily perform the contract we have with you and also so that we can protect the interests of our professional indemnity insurers through maintaining suitable records. We are required by law to retain certain data including identity and address details in order that we can comply with the Government's anti-money laundering controls (see paragraph 9 above). We would need your consent to send you future marketing information.
15.8 We do not envisage sending any of your personal data outside the UK or the EU, except where it may be stored on a cloud database by a provider outside this area, in which cases, the relevant provider has taken appropriate steps to ensure its proper handling.
15.9 You have a number of rights as a data subject including the rights to:
• be informed of the data we hold on you
• have any incorrect or out of date data rectified
• cease to receive certain forms of communication or to restrict processing
• take your data elsewhere ("portability")
• object to our use of data.
15.10 Unlike certain other business concerns, we do not as a law firm involve ourselves in automated decision making and profiling.
15.11 You have a right of access under data protection legislation to the personal data that we hold about you. If you would like to make a request to know about the personal data we hold on you please let us know, preferably in writing stating "Data Subject Access Request".
15.12 If you are unhappy about the way we are managing your data, you have a right to object to the Information Commissioner at Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF (tel: 0303 123 1113). Please also see your rights to complain to the Legal Ombudsman at paragraph 7.4 above.
If we become aware of a conflict of interest which prevents us from continuing to act for you, we shall inform you immediately and we shall assist you in finding new legal advisers and provide an effective transfer of the relevant matter to your new legal advisers. You agree to pay our fees, disbursements and expenses to the date of any such transfer in accordance with these terms.
17.1 Subject to these terms you may terminate your instructions to us in writing at any time.
17.2 We may cease to act for you only with good reason. For example, if you cannot give clear or proper instructions, if there is a breakdown in our relationship as solicitor and client, if to continue acting for you would constitute a breach of the SRA Code or if you do not pay any invoice in accordance with these terms. We must give your reasonable (in the circumstances) notice that we will stop acting for you.
17.3 If for whatever reason our relationship is terminated, you will pay our fees, disbursements and expenses in accordance with these terms.
17.4 We are entitled to exercise a lien over (i.e. we can retain) all or any of your property, including deeds, documents and papers which we or our agents hold from time to time in respect of all amounts and liabilities due to us from you whether billed or not. If we conduct litigation for you, we have additional rights in any property recovered or preserved for you whether it is in our possession or not in respect of such amounts. We also have a right to ask the Court to make a charging order in our favour for any assessed costs. We shall not be obliged to release such property until payment of such amounts has been received in full.
18 RAISING QUERIES OR CONCERNS WITH US
18.1 We always like to hear about your experience in using our services to make sure good practices are embedded into what we do. If you have any comments (good or bad) you would like to make on the way in which we deliver those services or the work we do for you, please do not hesitate to contact the lawyer dealing with your matter. Our complaints procedure is here www.mslaw.co.uk/complaints.
18.2 We are committed to high quality legal advice and client care. If you are unhappy about any aspect of the service you have received or about the bill, please contact either Andrew Shipley or Rob Hughes on 01530 266 000 or by email email@example.com or by post to our office. We have a procedure in place which details how we handle complaints which is available upon request.
18.3 We shall try to resolve any problem quickly through our internal procedures. It is important that you raise any concerns with us immediately they arise, as we value you as a client and would not wish to think you have any reason to be unhappy with us.
18.4 If your dissatisfaction concerns the amount of our fees, please also refer to the notes printed on the back of our invoices which explain your rights and paragraph 2.16 above.
18.5 If you are not satisfied with our handling of your complaint you may be able to ask the Legal Ombudsman, an independent complaints body established under the Legal Services Act 2007, to consider the complaint. This applies if you are an individual, a business with less than 10 employees, a charity or trust with a net income of less than £1 million, or if you fall within certain other categories (you can find out more from the Legal Ombudsman). Normally, you will need to bring a complaint to the Legal Ombudsman within six months of receiving a final written response from us about your complaint. You can contact the Legal Ombudsman on 0300 555 0333 or by email firstname.lastname@example.org or online at www.legalombudsman.org.uk or by post at PO Box 6806, Wolverhampton, WV1 9WJ.
18.6 Alternative complaint bodies (such as Ombudsman Services at www.ombudsman-services.org) exist which are competent to deal with complaints about legal services should both you and we wish to use such a scheme.
19 APPLICABLE LAW AND JURISDICTION
19.1 Our relationship, as set out in these terms of business and the note, is governed by English law. By instructing us, both we and you submit:
(a) to the non-exclusive jurisdiction of the English Courts in respect of any claims brought by us; and
(b) to the exclusive jurisdiction of the English Courts in respect of any claims brought against us.
M&S Solicitors Limited