Terms of Engagement
- Introduction
These terms of engagement (Terms of Engagement) set out the terms and conditions upon which Henry & Co. (We or the Firm) provides its services. It also outlines the steps you should take if, for any reason, you are dissatisfied with the service we provide. They should be read in conjunction with our accompanying letter of engagement (Engagement Letter).
Your acceptance of our Engagement Letter and your continuing instructions will amount to your acceptance of these Terms of Engagement. If you provide Henry & Co. with further work concerning matters other than the engagement, these Terms of Engagement will be deemed to continue to apply to any new instructions from you.
These Terms of Engagement supersede any prior representation, arrangement, understanding or agreement between us relating to services undertaken by this firm whether written or oral.
- Professional Rules and Regulations
Solicitors are at all times governed by our professional Code of Conduct and the Rules of the Court. We are authorized and regulated by the Solicitors Regulation Authority (the SRA) registration number 524206. The SRA is the independent regulatory arm of the Law Society. You can obtain a copy of the SRA Code of Conduct from the SRA’s website www.sra.org.uk
- Responsibility for your work
Our Engagement Letter will inform you of the name of the persons who will act for you on the engagement and the name and status of the person who will have overall responsibility for the engagement.
- Unpaid bills
It is a condition of our engagement that all bills, interim and final, are paid promptly. If a bill is issued and not paid within 30 calendar days, we reserve the right to terminate our services on reasonable notice.
We may also charge interest and recovery costs on the outstanding amount. The interest and recovery costs on the outstanding amount will be at the rate specified at the time under the Late Payment of Commercial Debts (Interest) Act 1998 calculated from the date of the bill to the date payment is received and both before or after any judgment we may obtain against you.
We shall also have the right to exercise a lien against and set off any outstanding amounts (together with accrued interest) against any amounts we may be holding for you.
- Exclusions and Limitations on our Liability
Losses in the following paragraphs mean all demands, claims, actions, proceedings, damages, payments, losses, costs, expenses or other liabilities.
Proportional liability
There is a risk that we will be prejudiced by any limitation or exclusion of liability which you agree with any other person (for example, another adviser) in connection with a matter in which we are advising you. This is because such a limitation or exclusion of liability might also operate to limit the amount which we could recover from that other person by way of contribution if we were required to pay you more than our proper share of the liability. Accordingly, in order that our position is not adversely affected by any limitation or exclusion of another person’s liability, you agree that we will not be liable to you for any amount which we would have been able to recover from the other person by way of indemnity, contribution or otherwise but are unable to recover because you agreed, or are treated as having agreed, with them any limitation or exclusion on their liability.
Third party liability
If you start proceedings against us for loss or damage and there is another person (for example, another adviser) who is liable (or potentially liable) to you in respect of the same loss or damage, then you will (if we so request) join them into the proceedings. This is subject to any legal prohibition against your joining them in that way.
Maximum Liability
The firm’s maximum liability to you in relation to the provision of our services howsoever arising in relation to the engagement will not exceed £2 million.
Liability cap
We may, from time to time, agree with you that our aggregate liability to you in relation to a particular matter is limited to an amount specified in the relevant Engagement Letter (a Liability Cap). Where a Liability Cap is agreed it will apply to our aggregate liability to you (together with any associated party for whom you are acting as agent in relation to the relevant matter on any basis (including for example contract or negligence) for all Losses arising from or in connection with our services in relation to the relevant matter.
Specific exclusions
We will not be liable for any consequential, special, indirect or exemplary damages, costs or losses, or any damages, costs or losses attributable to lost profits or opportunities.
- Limitation on exclusions
The above exclusions and limitations will not operate to exclude or limit any liability for fraud or reckless disregard of professional obligations or for liabilities which cannot lawfully be limited or excluded, such as death or personal injury caused by our negligence.
- Insurance
We maintain professional indemnity insurance in accordance with the rules of the SRA. Details of the insurers and the territorial coverage of the policy are available at our offices. The minimum level of insurance cover that we are obliged to carry under the SRA Indemnity Insurance Rules is currently £2 million and we consider that an adequate level of cover for this firm to carry. For this reason, we believe that the limitation on our liability, referred to in paragraph 5 above, is reasonable.
- Conflicts of Interest
Where a conflict of interest arises or may arise (for example, where we find that the other party to your proposed transaction is or has been, a client of the firm), we may not be able to accept or continue working on your matter.
If there is an actual or potential conflict of interest, we will discuss it with you. We may act for two or more of you (for instance, more than one shareholder in a company or owner of a property) if there is no actual conflict and/or you both consent. If a conflict arises during our engagement, we may have to cease acting for one or more of you.
- Confidentiality
Unless otherwise agreed by you or as required by law or any regulatory authority or in the proper performance of our professional duties in carrying out the engagement, we will treat as secret and confidential and not disclose to any other person any information relating to you or to the engagement.
On termination of our engagement or otherwise on request by you, we will deliver to you all material provided to us in the provision of our services or prepared by us pursuant to the engagement and all copies of the same, other than information or material that we are entitled or required to retain under professional or other regulatory rules.
- Storage of Papers and Documents
We will retain your papers during the transaction and afterwards while there is any money owing to us. After completion of the transaction and payment of any money owing, we will keep our file for at least six years and on the understanding that we have your authority to destroy it after six years from the date of the final bill which we send to you in relation to the engagement.
- Secure Communications / E-Mail
We make reasonable attempts to exclude from our e-mails any virus or other defect that might harm a computer or IT system. However, it is your responsibility to put in place measures to protect your computer or IT system, and we do not accept liability for any loss or damage that may arise from the receipt or use of electronic communications sent by us in good faith.
- Our Responsibilities to each other
During the course of the engagement, we will review progress of the matter on a regular basis, keep you informed of progress and notify you of any changes in circumstances that might have an impact on the matter. If the matter is of a relatively low value, we will advise you from time to time, as necessary, whether the likely outcome of the matter will justify the likely charges and expenses and risks involved. We will also provide you with periodic updates as the costs involved in conducting the engagement and bring to your attention any necessary expenses.
We will expect you to comply with any applicable statutory and other legal requirements, including those relating to money-laundering and, where relevant, financial services.
- Data Protection
If you are an individual, you will need to provide us with personal data about yourself (and possibly others) for the purposes of our engagement. Such data may include your name, address, date of birth, passport or other identification documentation, contact numbers and email, bank account details, assets, family details including the names and ages of any children (where appropriate). We may also obtain from you and public resources the names, age, address and other details of anyone involved with your matter.
Any such personal data may be used by us for the provision of our legal services, billing and other administrative purposes (including the processing of any such data as part of those services or so as to improve the delivery of similar services in the future). It may also be used by us from time to time to provide you (and where appropriate anyone for whom you act) with information about the firm and our services (including contacting you or them by email or telephone).
If you are the representative of any legal entity other than an individual, we will use any personal data you provide to us for the purposes of acting, on the same basis as set out above. It is your responsibility to ensure that you have appropriate procedures in place (including adequate privacy notices) when you ask us to collect and process personal data for the purposes of your matter. If you have any concerns about the status of such data you must let us know before any such data is shared with us.
None of the information we hold about you will be disclosed to or passed onto third parties without your specific authority or except in accordance with paragraph 9 above or for the purpose of managing our database or improving our business.
If, as part of our services, we collect personal data about other people on your behalf, we will hold and process that data in accordance with the prevailing data protection legislation, including Articles 28 and 32 of the General Data Protection Regulation as transposed into English Law under the Data Protection Act 2018.
Please refer to our privacy policy (as set out on our website) for a full summary of our obligations and related behaviours under prevailing data protection legislation. Contact information is set out there also.
- Affiliates and Other Third Parties
For the purposes of our engagement, our client is the person or entity designated in our Engagement Letter, and not its affiliates (whether shareholders, parent, subsidiaries, partners, members, directors, officers or otherwise). For conflict of interest purposes, we may represent another client with interests adverse to your affiliates. Our engagement by you does not create any rights in or liabilities to any third party.
- Cancellation or Termination of Instructions
By you
You may cancel or terminate your instructions to us at any time and for whatever reason by notice in writing to us.
By us
Our lawyer-client relationship will be considered terminated upon our completion of the specific services that you have retained us to perform, or if open-ended services are to be provided, when more than three months have elapsed from the last time you requested us to perform services and we provided any billable services to you.
We may also decide to cease acting for you, but only for good reason. For example, occasions might also arise where there is a conflict of interest and we cannot act for two clients on the same matter. We will give you reasonable notice if we decide that we can no longer act for you and, if considered by us appropriate, assist you to find alternative representation.
Effect of Cancellation or Termination
If for any reason we cease to represent you, we will charge for all work done up to that date and we will be entitled to retain all of your papers or documents while there is money owing to us for our fees, charges and expenses. If we have given you a quote or estimate our charge will be in proportion to what has been performed until you have communicated to us your cancellation compared to what you would have paid if the engagement had been performed in full.
In the event of the termination or cancellation of our engagement for whatever reason, these Terms of Engagement will remain in force as regards payment and monies held for you, confidentiality, data protection, liability and files and documents.
- Abortive Work
Where we have given you an estimate or a fixed price quotation and the matter does not proceed to completion, we will normally charge you for work done on your behalf up to the date our work finished. This will usually not exceed our estimate or a fixed price quotation but subject to the Engagement Letter. We will also charge on that basis where any non-fixed price matter does not proceed to completion.
- Outsourcing of services
On occasions we might deem it necessary to outsource some of the work on your matter to individuals or businesses separate to ours. This might include instructing experts and counsel as well as the outsourcing of services for the operational running of our business and the provision of services to clients. We take steps to ensure that any such third parties are of the highest reputation and the confidentiality of your files is assured. Your acceptance of these terms is taken as approval of such arrangements as we feel appropriate for the conduct of your matter.
- Money Laundering
The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (the Regulations) have placed solicitors under a legal obligation to obtain and verify satisfactory evidence of the identity of their clients, financial details, sources of funding and, where relevant, identity information about people related to their clients i.e. beneficial owners. We are unable to act for you until this evidence has been provided. Please also note that we will not be able to accept money for or from you until these checks are completed and this may affect our ability to provide services to you.
To comply with the law, we need to get evidence of your identity as soon as possible. Our practice is to:
- In the case of individuals (including directors and shareholders of a company or members of a limited liability partnership), we require to see and keep a photocopy of a passport, photo driving licence, or national identity card (or similar document) as evidence of your identity and a recent utility or council tax bill (or similar type of document) as additional evidence of your address. We need to see original documents and will discuss with you acceptable documents and methods of certification if the original is not available.
- For all companies we will carry out a search of Companies House (or a similar registry in foreign jurisdictions) and may ask for further financial information.
- For other organizations, we will also require the evidence as for individuals for one or more directors, shareholders, partners or other persons authorized to represent the organization.
- For other legal entities we will inform you of the evidence required to confirm identity.
Solicitors are under a professional and legal obligation to keep the affairs of clients confidential but this is subject to a statutory exemption under the Regulations. Where a solicitor knows or suspects that a transaction on behalf of a client involves money laundering or terrorist financing they are obliged to inform the National Crime Agency but are unable to inform the client that this step has been taken.
We are required to monitor transactions and maintain records relating to your identity for at least 5 years and we may ask you to provide updated proof of identity from time to time. We do not accept funds in cash. If you were to circumvent this policy 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.
- Referrals
It is not the practice of Henry & Co. to pay or receive any financial incentive when clients are either recommended to us or we recommend service providers relevant to the engagement.
If we recommend that you use a particular firm, agency or business, we shall do so in good faith and because we believe it to be in your best interests. However, if that particular firm is not another firm of solicitors, then you will not be afforded the regulatory protection of the SRA, the SRA’s Code of Conduct and SRA Indemnity Insurance Rules, nor shall you be entitled to the benefit of the SRA Compensation Fund.
- Rights of Third Parties
A person who is not a party to the agreement between you and this firm has no rights under the Contract (Rights of Third Parties) Act 1999 to enforce any of these terms of engagement. This does not affect any right or remedy of a third party which exists or is available apart from that Act.
- Undertakings
We may receive undertakings from another firm of lawyers during the course of a matter or transaction for you. We do not accept any liability where such other firm fails to fulfill such undertaking in whole or in part. This will not prejudice your ability to pursue such other firm through the Courts.
- Purpose and use of advice
Our advice is for your benefit only and will be given in the context of the particular transaction or engagement for which we are retained. You should not rely on it in any other context. If you want to disclose our advice to anyone else or refer to it, please let us know in advance so we can decide whether we can agree to that and, if so, on what basis.
- Governing Law
These Terms of Engagement, together with the Engagement Letter, form the basis of our contractual relationship with you which is governed by and interpreted exclusively in accordance with the laws of England. You hereby submit to the exclusive jurisdiction of the courts of England, at all times.
