P C McFARLANE & CO
TERMS OF ENGAGEMENT
These Terms of Engagement apply to all work carried out by P C McFarlane & Co ("the Firm") for our clients unless otherwise agreed in writing with you by a partner in the Firm. This Firm is a firm of solicitors regulated by the Law Society of Scotland.
1. PARTNER RESPONSIBILITY
PETER McFARLANE, the Senior Partner of the Firm will have overall responsibility for your relationship with the Firm ("the Transaction Partner").
In the Engagement Letter, we will also have given you the names of the people with day to day responsibility for the conduct of your work.
3. GOOD COMMUNICATION
We will keep you informed about work undertaken on your behalf and in particular will:-
- Periodically give you verbally or in writing an explanation of what we are doing on your behalf and why;
- give you timely information about progress;
- provide you with information which you reasonably require as requested by you;
- respond to all incoming mail, e-mails, faxes and telephone calls promptly. Please bear in mind that the person handling your work may be engaged all day at meetings or out of the office. Other staff will do their best to handle your enquiries.
In turn, we request that you provide us with all information and documentation which is relevant so that we are properly briefed and in a position to carry out your work, and any further information which we reasonably request, as speedily as possible. In providing us with information and/or when instructing us, you should not assume that we have knowledge of any relevant factual matters or background. If in the course of a conveyancing transaction it is discovered that a Letter of Comfort or copy documentation is required from a building control department please carefully note that it is your responsibility to obtain any such item and we will not do so unless by specific agreement and will charge an additional fee for the work involved.
In Executries, please note that there are many circumstances that can arise that can cause delay. It is unlikely that in any but the simplest Executries will it be possible to complete matters within one year and in many cases the time frame could be substantially longer.
4. AUTHORITY TO ACT
In the absence of specific contrary instructions from you to the Transaction Partner, we will proceed on the basis that those who hold themselves out as having authority to instruct us do in fact have such authority. In particular, we will assume that (i) if the client is a company, we can take instructions from any officer, (ii) if the client is a partnership, we can take instructions from any partner and (iii) if there are joint clients (e.g. husband and wife or more than one individual shareholder) we can take instructions from either or any of them and that any such instructions will bind the other.
You give us continuing authority to sign and submit Stamp Duty Land Tax forms on your behalf.
5. COMMUNICATION CHANNELS
In the absence of specific contrary instructions from you to the Transaction Partner, we will assume that we can communicate with you, and with any relevant third parties (i.e. fellow advisers on your particular transaction or matter), and to take instructions from you, by telephone, post, facsimile, e-mail or any other form of electronic and/or internet communication. We may ask you to confirm verbal instructions to us in writing or by e-mail. You may advise the Transaction Partner of a particular method you wish us to adopt to acknowledge receipt of instructions.
6. FINANCIAL ARRANGEMENTS
6.1 Method of Charging
We will set out in the Engagement Letter the basis on which we will charge for work carried out on your behalf and the general scope of the work we understand you want us to undertake.
Where the Engagement Letter sets out a fee quotation, this is a proposal by us to carry out specific work for a stated fee. If you accept that proposal, then (subject to these Terms of Engagement) and the Engagement Letter), it becomes a commitment by us to carry out the instructed work for the fee quoted. If we are requested to carry out work in excess of that specified or we are required to carry out additional work to perform the specified work as a result of circumstances not disclosed to us, then our fees for that additional work will be charged at our then applicable hourly rates.
If for any reason 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 applicable hourly rates and may be adjusted to reflect the complexity, urgency, importance, responsibility, novelty or value of the work which has been done for you or the fact that the work has been done during unsocial hours to meet particular deadlines. The hourly charge-out rates applicable to the personnel involved in your work are available to you on request and are revised by the Firm from time to time.
The Firm will add to its charges the cost of disbursements and expenses incurred on your behalf such as Counsel's fees, search fees, registration/recording fees, stamp duty land tax, bank charges, currency exchange costs, couriers and other third party accounts, travelling, subsistence and accommodation and volume photocopying charges.
VAT is charged at the current rate on all fees and on such disbursements and expenses as bear it. Any fee quotation provided will be exclusive of VAT and outlays and expenses.
Disbursements and expenses may be invoiced to you as they arise and may be invoiced after a fee has been rendered if they have only then been charged to us.
Unless you notify us in writing to the contrary, we will assume that we have your authority to incur those outlays and expenses which it would be reasonable to incur in the proper performance of the work for you. You may place a limit on the amount of fees and/or disbursements and expenses which may be incurred without your prior approval, provided that the limit is realistic. If you wish to do so, please tell the Client Care Partner in writing. Where, after consultation with you, other professional advisers, such as Counsel, experts or overseas lawyers are engaged by us, they will be so engaged by us as your agent and you will be responsible for their charges in addition to our own.
A payment to account covering counsel's fees and other material disbursements may (and in litigation matters will) be sought. The payment to account will be made at the time instructions are given. Thereafter disbursement fee notes will be issued as disbursements and expenses are incurred.
We may also ask you, either at the outset of our work for you or as it progresses, to make a payment to us on account of our fees.
Any payments on account made by you would be held in a separate bank account, in accordance with the Solicitors (Scotland) Accounts Rules, and credited against our invoice(s) to you for the relevant fees and/or expenses and outlays.
6.2 Payment of Bills
The Firm may render its fee at the end of a matter or may render payments on account if that is appropriate. In matters which are likely to continue for longer than 3 months, the firm will normally render interim accounts.
Payment of fees, disbursements and expenses is due within 30 days of the date of invoice or at such other time (e.g. on completion of your matter) as may be specified in our Engagement Letter. If you wish to dispute any invoice, you should speak to the Transaction Partner without delay. If fees, disbursements and expenses are not paid within the 30 day period, we will be entitled to charge interest on the sum overdue from the due date until payment at 2% above Bank of Scotland base rate.
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;
- you are insured; or
- someone else has agreed to pay your expenses.
You are responsible for payment of our charges whether or not the matter proceeds to completion unless otherwise agreed in writing.
Where you and other(s) are joint clients, you will each be jointly and severally liable for our charges i.e. we may recover the full amount of our charges from any of you, unless otherwise agreed in writing with you.
Payment of fees, disbursements and expenses shall always be made in pounds sterling unless otherwise agreed in writing.
We will be entitled to deduct our proper fees, disbursements and expenses from any sums we hold for you before remitting to you.
6.3 Clients' Money
Any money belonging to you and received by the Firm in the course of dealing with your matter, which is not required for fees or disbursements, will be held by us in accordance with the provisions of the Solicitors (Scotland) Accounts Rules and will be deposited if required by these rules in which event any interest accruing thereon shall be accounted for to you in terms of these Rules. We currently place funds on deposit with Bank of Scotland whose terms and applicable rates apply. If you wish any relevant deposit to be placed with another bank of your choice then, so long as that bank is a permitted recipient of funds in terms of the Law Society's rules, then, subject to your compliance with that bank's money laundering requirements, we will arrange that.
6.4 Cleared Funds
Standard safe and Law Society recommended Scottish practice for settling domestic property sale transactions is by us receiving the purchasing solicitors cheque. This however does not represent cleared funds. Any net sale proceeds, and the funds required to redeem loans, can only be remitted when the cheque has cleared and this usually takes five clear working days. We will then, provided the account details have been provided, remit by CHAPS transfer. We cannot remit cleared funds earlier than that and this can cause issues if there is a back to back transaction.
We are keen to ensure that we provide a quality service to our clients. If you would like to discuss with us how our service could be improved or have any complaints regarding our services, please contact the Transaction Partner in the first instance.
If the Transaction Partner receives a complaint in writing then, after clarifying with the complainant any aspect of the complaint that is not clear, we undertake that the Transaction Partner will review the file, give the complainant a full response in writing, and meet the complainant if the complainant wishes. If we accept the complaint we will endeavour to make amends. If we do not accept the complaint and the complainant is unable to accept our explanation, the complainant is always entitled to take the matter up with the Client Relations Office, The Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh, EH3 7YR.
8. CONFLICT OF INTEREST
We cannot act for two parties if they have conflicting interests. Please advise us at the outset if you are aware of potential conflicts.
We undertake to carry out any matter in accordance with all appropriate professional standards and with integrity. We will notify you immediately if we become aware of any conflict of interest with you and will take steps to resolve that conflict of interest promptly.
9. CONFIDENTIALITY (INCLUDING MOBILE AND E-MAIL COMMUNICATION)
Subject to Clause 14 we will not disclose to any person any confidential information relating to you or to any matter handled by us on your behalf, expect (a) in the proper conduct of that matter or (b) if such information is in the public domain otherwise than by reason of improper disclosure by us or (c) where we are required to do so by law or by the rules of any applicable professional body or regulatory authority. If, on your authority, we are working with other professional advisers, we will be entitled to assume that we may disclose any such confidential information to them. We may refer to you as our clients publicly, and may refer to your transactions and business only insofar as information is in the public domain or otherwise with your agreement.
You acknowledge that e-mail and other modes of electronic and/or internet communication are not yet secure or error free communication channels and that information communicated in this way could be intercepted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. You acknowledge that mobile telephone communications are not secure and that communications on a mobile phone are capable of being intercepted.
While we will take all reasonable steps to ensure that confidentiality is maintained in all our mobile and land line communications, in e-mail or other electronic and/or internet communications with you and will take all reasonable procedures to check for the then most commonly known viruses before sending information electronically, you agree that we shall not be liable for any loss or damage which you may suffer or incur as a result of our proper use of such communication channels.
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 of Engagement and our 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 instructions to act on your behalf with respect of a particular matter, but to continue our instructions to act on your behalf in 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.
We will not terminate our professional relationship with you, whether in its entirety or with respect to a particular transaction or matter, without good reason (e.g. the creation of a conflict of interest, you instructing us to take action contrary to our professional rules of conduct or a breakdown in the relationship of trust between us).
11. LIMITATION OF LIABILITY
The aggregate liability to you of the Firm, its partners or employees in contract or delict or under statute or otherwise, for any loss or damage or cost or expense suffered by you arising out of or in connection with any particular matter, howsoever caused, including by our negligence (but not wilful default), shall not exceed the amount available under the compulsory Professional Indemnity Insurance cover that we are required by the Law Society of Scotland to maintain in force as a condition of our being permitted to practise as solicitors.
None of the above will have any liability to you for any loss of profit, loss of business opportunity or other indirect or consequential loss.
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 ordered against us by a court of competent jurisdiction after taking account of the contribution to the relevant loss or damage 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 of such person by any agreement made before the loss or damage occurred.
The limitation and exclusions on liability set out or referred to above shall not apply to any liability for death or personal injury caused by our negligence or to any other liability which cannot lawfully be excluded or limited.
The benefit of the limitations and exclusions on liability set out or referred to above shall be held by the Firm as agent and trustee for each partner and employee.
Please carefully note that this firm will not provide tax advice in relation to any transaction except in the case of specific tax planning being undertaken for individuals in connection with the succession to their estate.
12. 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 shall not 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 shall 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 to the extent otherwise expressly agreed in writing between us and such third party.
13. OWNERSHIP OF WORK PRODUCT/PAPERS
All files, 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. We may destroy or retain them without reference to you. We will store title deeds and original signed documents for you by prior agreement. Currently we do not charge you for such a service. In the interests of space / resource saving we reserve the right to destroy files at any time without prior notice.
We will use your information to provide you with the legal services you have requested and for training and administration purposes. We may also disclose your information in some circumstances to our professional advisers or other agents whom we use to perform certain functions on our behalf. These agents only have access to the personal information required in order to perform their functions and may not use it for any other purpose.
If at any time during the course of your relationship with us you require to provide us with personal information about third parties, you should only do so after required consents to this disclosure have been obtained. It is your responsibility to ensure that you comply with the relevant sections of the Data Protection Act 1998 and any other legislation applicable to the data in question.
Your continued relationship with us signifies your consent to us to hold information about you under the Data Protection Act 1998.
15. PROCEEDS OF CRIME ACT, MONEY LAUNDERING AND OTHER REPORTING
We are required by anti money laundering legislation to obtain proof of identity from clients for whom we act in certain matters. Accordingly, you may be asked to supply us with the requisite information.
The Firm has reporting obligations imposed on it under and in terms of the Proceeds of Crime Act 2002, the Money Laundering Regulations 2003, 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.
16. THIRD PARTIES
If we engage others on your behalf (such as counsel, overseas lawyers and expert witnesses), whether in the U.K. or abroad, we will do so as your agent and we will not be responsible for any act or omission of those other persons.
If any provision of these Terms of Engagement is, or becomes, invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired.
18. LAW AND JURISDICTION
The terms of our appointment, as set out in these Terms of Engagement (including any amendments from time to time agreed with you or notified to you in writing) and any Engagement Letter, are governed by and shall be construed in accordance with Scots Law. Any dispute arising out of the provision of services by us to you shall be subject to the exclusive jurisdiction of the Scottish Courts. However we shall, in our sole discretion, be entitled to raise proceedings in any jurisdiction we deem appropriate.
19. AUTOMATED REGISTRATION OF TITLE
This firm participates, when the transaction is suitable, and where authorised by clients so to do, in the automated on-line registration of title and standard security process sponsored by the Land Register of Scotland and required by many major lenders. Not all transactions are suitable for this process but they are quicker, more secure and marginally cheaper than non automated transactions. We can however only operate this process with the cooperation of the other solicitors involved and of our and their clients. We are therefore unable to undertake to operate this process in any particular transactions where such cooperation is not forthcoming.
20. ACCEPTANCE OF TERMS OF ENGAGEMENT
Unless otherwise agreed, these Terms of Engagement apply to all instructions you may give to us now and in the future. Your continuing instructions to us will be deemed to be an acceptance of these Terms.
Effective December 2010