TERMS AND CONDITIONS OF ENGAGEMENT

1. INTRODUCTION
These Terms and Conditions of Engagement (“Terms”), together with our engagement letter, set out the basis on which we (Edwards & Co Solicitors) will provide our services, and they should be read together. In the event of any inconsistency between the letter and these Terms, the former shall prevail. With effect from 1 January 2020 these Terms will apply to all services rendered by us to you from time to time unless we have entered into a specific written agreement which expressly excludes or modifies them in whole or in part.


2. GENERAL BASIS FOR ACCEPTANCE OF INSTRUCTIONS
a. Instructions will be accepted or declined in accordance with the Solicitors’ Practice Regulation 1987 (as amended), and the Solicitors (Client Communication) Practice Regulations 2008.
b. Details of the partner with overall responsibility for your affairs and, if different, the person(s) with day-to-day conduct are set out in our engagement letter.
c. We will be free to use such members of our staff or agents in connection with your business as we consider be appropriate and in your best interests.
d. You will notify us in writing if communications are to be sent to you other than at the address or fax or email you have provided, and whether particular advice is to remain undisclosed to other persons associated with you. Unless you tell us not to do so we may communicate to you by email and do not accept responsibility for any breach of confidentiality which may occur, whether because of a fault or omission on your part or by any of your agents or the result of any action of a third party.
e. You will provide us with a full description of the services you require and a statement of your objectives.
f. You will provide us, on request, with sufficient information to enable us to carry out our work. This will include relevant documents, notes, agreements, emails, correspondence and personal statements.
g. Where our services are supplied to two or more persons then your liability for our costs is joint and several; you will each be liable for any amounts due to us. If a third party or other source is to be responsible, this must be agreed with us before work is undertaken.
h. It is our practice to check for conflicts of interest in appropriate cases. However, an actual or potential conflict between your interests and the interests of another advised party may arise during the course of a matter. If this situation arises during our dealings with you we will discuss it with you and determine the appropriate course of action. In order to protect your interests we may not be permitted to continue to act for you.

 

3. COSTS AND DISBURSEMENTS
a. Subject as below, and except where we agree a fixed or scale fee, our charges are based on the time we spend dealing with your instructions. Chargeable time will (See http://www.lawsoc-ni.org/role-of-the-law-society/regulation/ for further information) include meetings with you and others; any time spent travelling; considering, preparing and working on papers; correspondence including faxes and emails; and making and receiving telephone calls to and from you. All letters and telephone calls will be charged on a time basis. We record time in minimum units of six minutes. In addition, VAT will, if applicable, be added to our charge at the rate applicable at the time when the work is done. Expenses such as Counsel’s fees and/or Expert’s fees which are incurred may also attract VAT which will be payable by you.
b. Our costs will also be assessed by reference to other factors including:
i. the complexity of the matter;
ii. the skill, labour, specialised knowledge and responsibility involved;
iii. the number and importance of documents prepared or considered;
iv. the amount or value of any money or property involved; and
v. the importance of the matter to you.
c. Wherever possible we will, upon accepting instructions, give you an estimate of the likely costs involved and will revise that estimate from time to time if it becomes necessary. Likewise we will give you an estimate of disbursements that are likely to be incurred. If we have provided you with a written estimate, it is given only as a guide to assist you in budgeting and should not be regarded as a fixed quotation.
d. Our costs take into account our incidental disbursements such as normal postage and telephone charges. We will charge you for any other expenses we incur in connection with your business including printing, photocopying, exceptional typing requirements, couriers, taxi fares, search and service fees and any exceptional overseas telephone and/or fax costs.
e. Our hourly charging rates for the fee-earners assigned to your matters are as set out in our engagement letter. Other staff may become involved, or charging rates may change. Our charging rates apply to partners, associate solicitors, assistant solicitors, trainee solicitors, paralegals, legal assistants and administration support staff.
f. Unless otherwise agreed, our charges will be payable whether or not any particular matter proceeds to completion.
g. Our VAT registration number is 255 8223 53

4. PAYMENT
a. Any account rendered by us is due for payment within 30 days and interest will be charged at the rate for the time being prescribed for judgment debts on any balance (including outlay) outstanding after 30 days.
b. We may from time to time deduct sums due to us from monies in hand on your account in any matter.
c. We may from time to time invoice you on account of the final bill for costs and disbursements. Such invoices may be sent periodically in accordance with our engagement letter or at any natural break in the instructions.
d. If you have any query about your invoice, including the basis on which it has been calculated, you should contact the partner with day-to-day responsibility for your work as soon as possible and in any event within 30 days, after which we will treat the amount shown in the invoice as recoverable by any means.
e. You are entitled to require us within one month of the delivery of any invoice to obtain a certificate from the Law Society of Northern Ireland stating that in their opinion the costs charged are fair and reasonable or, as the case may be, what lesser sum would be fair and reasonable. You are also entitled to have a bill checked by an officer of the High Court by a procedure known as taxation of costs in accordance with the provisions of the Solicitors (NI) Order 1976.

5. TERMINATION
We will, on giving reasonable notice be free to refuse to act or continue to act in particular if:-
a. we are or may be in breach of the law or the principles of professional conduct by accepting or continuing to accept instructions;
b. we consider there is or may be a conflict or risk of conflict between your interests and those of any other client of ours;
c. any account rendered by us in respect of fees or disbursements has not been paid within 30 days of its date; or
d. any request for money on account of costs or disbursements incurred or to be incurred has not been complied with within two weeks of it being made. We may also discontinue acting on other reasonable grounds.
You may terminate our retainer in writing at any time. In some circumstances, you may consider we ought to stop acting for you, if, for example, you cannot give clear or proper instructions on how we are to proceed, or if it is clear that you have lost confidence in how we are carrying out your work. If you or we decide that we can no longer act for you, you are liable for our charges down to the date of termination.

6. CONSEQUENCES OF TERMINATION
If our instructions are terminated for any reason then we may in addition to any other remedy available to us: -
a. retain any deeds, securities or other documents under our control;
b. retain any monies for the time being standing to any account you may have with us; until payment has been made of all outstanding costs and disbursements together with VAT and costs and disbursements incurred in connection with the termination.

7. CONTINUING OBLIGATIONS
a. Unless specifically otherwise agreed we shall not be under any continuing obligation to advise you of changes in the law which may affect advice previously given.
b. All communications generated between us during the currency of our retainer shall remain confidential and shall not be disclosed to any third party without consent.
c. As part of our commitment to provide a quality service to you we may, from time to time, invite suitably qualified external assessors periodically to review our files on a sample basis for compliance. Files are not made available to assessors if the subject matter is of a sensitive nature or where you specifically request that they should not be made available.

8. COMPLAINTS
a. If you have a concern about any aspect of our service it should be raised immediately with the partner dealing with your matter or, if substantial, in writing to the Quality Partner.
b. Any complaint will be remedied promptly, if possible, and investigated further if necessary. You have the right to take independent advice from another solicitor in any case where you have, or may have, a complaint against the Edwards & Co Solicitors. If it is determined that a complaint will not be upheld we reserve the right to recover from you the costs on a time basis of investigating the matter.
c. You should note that complaints raised more than 30 days after submission of an invoice will not ordinarily be entertained.
d. You may also wish to refer to the Law Society of Northern Ireland for further information on the conduct of solicitors.

9. STORAGE OF PAPERS AND DOCUMENTS
After completing the work, we are entitled to keep all your papers and documents while there is money owing to us for our charges and expenses. Except for any of your papers which you ask to be returned to you, we keep the file on the understanding that we have the authority to destroy it after the date of the final bill we send to you. This is in accordance with our destruction policy which is exhibited at Schedule 1 of these Terms. We shall not destroy documents you ask us to deposit in safe custody. If we retrieve papers or documents from storage in relation to continuing or new instructions to act in connection with your affairs, we shall not normally charge for such retrieval. However, we may make a charge based on time spent producing stored papers or documents to you or another at your request. We may also charge for reading, correspondence or other work necessary to comply with new instructions given by you or on your behalf.

10. The Data Protection Act 2018
Edwards and Company, as a data controller, is bound by the requirements of the Data Protection Act 2018 and any other regulation directly relating to Privacy. You agree that we may obtain, use, process and disclose personal data to enable us to discharge the services agreed under this engagement and for other related purposes including updating and enhancing client records, analysis for management purposes and statutory returns, crime prevention and legal and regulatory compliance.

11. MONEY LAUNDERING REGULATIONS
In order to enable us to satisfy our obligations under the Regulations and related and amending legislation, it will be necessary for you (except in non financial matters) to supply appropriate proof of identity before we are able to act or continue to act for you or for any principal whom you may represent. We will also not be able to receive any funds from, or pay any funds to, you or on your behalf unless all necessary identification and other procedures have been satisfied for the purposes of the Regulations.
For individuals and partnerships, proof of identity will usually be a current valid passport, driving licence, recognised identity card or equivalent showing your name, date of birth and photograph, together with a current utility bill or equivalent confirming your address. For companies, we will usually require a copy certificate of incorporation or copy audited statutory accounts together with personal identification as above in respect of some or all of the company’s directors. In the case of a company incorporated overseas, we may also require a certificate from lawyers qualified in the relevant jurisdiction to the effect that the company is properly incorporated, together with evidence of the company’s directors and of the authority and identity of the persons instructing us. In the light of the Regulations and for insurance reasons we do not normally accept cash payments from or on behalf of clients and then only in special circumstances and for limited amounts.

12. PROCEEDS OF CRIME ACT 2002
We are prohibited by this Act from acting for or advising a client in relation to the acquisition, retention, use or control of the proceeds of any crime or any attempt to conceal, disguise, convert or transfer any criminal property or to remove it from the jurisdiction, or from being involved in arraignments relating to such activities. The proceeds of crime and criminal property are widely defined for these purposes to include any activity (including tax evasion) carried on anywhere which would be illegal if carried on in the UK.
We have a legal obligation to report to the National Crime Agency any person, including a client, suspected of involvement in activity covered by this Act. As a result we reserve the right to make all disclosures to relevant authorities as required by law, without notice to you, and if appropriate to cease acting for you without giving any specific reason. These obligations override our normal duty of confidentiality to you. We will not accept any liability for any loss or damage that you or any third party may suffer or incur on any account for any action taken, or not taken, by us in good faith with a view to complying with this Act or any related legislation. We may also require confirmation from you of the source of any funds, in particular any remitted from overseas, and whether all necessary tax has been paid and all necessary returns made in relation to any overseas funds. We reserve the right to require further information and supporting documentation as appropriate.

13. LIMITATION OF LIABILITY
This paragraph shall apply to any claim:
a. by you.
b. and, if any duties are held to be owed to them, to a claim by any individual or company, related or associated to you, and any officer, servant or, employee of any of these entities; against this firm (which for the purpose of this clause includes any successor practice), any past or future partners of the firm, and/or any past, present or future employees of the firm. All claims, whether made by one or more of the parties referred to in subparagraphs (a) and (b), arising from the same act or omission, or from a series of related acts or omissions, shall be regarded as one claim. Any such claim shall be limited to such amount as is referred to in our engagement letter. Where no specific amount is referred to in our engagement letter the limit for each and every claim, including claimants’ costs and expenses, shall be £3,000,000. In no event shall our liability in respect of a claim, as defined above, exceed the level of our professional indemnity insurance from time to time (which at the date of these Terms is £5,000,000).
We have compulsory Professional Indemnity Insurance cover under the Law Society of Northern Ireland’s Master Policy, which is underwritten by a “Slip” of Insurers in any one insurance year. A copy of our Professional Indemnity Insurance Schedule and related Evidence of Insurance issued to us by our brokers together with copies of each solicitor’s individual Professional Indemnity Insurance Certificate is available for inspection and copies of these documents will be provided to you on request.
The Territorial limits of the Master Policy are world wide but there is a restriction of the Jurisdiction Limits in respect of USA and Canada for which are excluded.
‘(A) damages or other monetary awards, judgements or negotiated settlements claimant’s costs and expenses and defence costs connected with or arising out of any claim made or suit brought against the Insured before any arbitrator tribunal or court in the United States of America, its territories and possessions, or Canada.
B) the enforcement upholding or registration against the insured by any arbitrator tribunal or court outside the United States of America, its territories and possessions, or Canada, of any damages or other monetary awards, judgements or negotiated settlements claimant’s costs and expenses and defence costs connected with or arising out of any claim made or suit brought against the Insured before any arbitrator tribunal or court of the United States of America, its territories and possessions, or Canada.

14. GENERAL
a. These Terms shall not affect any provision of the general law or professional standards applicable to the relationship between us and you as solicitor and client.
b. We will not be liable to you or any third party if we are unable to perform our services as a result of any cause beyond our reasonable control. If any such event should arise, we will notify you as soon as reasonably practicable.
c. Edwards & Co Solicitors is regulated by The Law Society of Northern Ireland from whom further information can be obtained on the professional standards and conduct required of solicitors in Northern Ireland. The firm is not separately regulated by the Financial Services Authority but it is able to offer a limited range of investment services to clients where they are an incidental part of the professional legal services we have been engaged to provide.
d. Any notice to be given to us may be sent to Edwards & Co Solicitors, 28 Hill Street, Belfast, BT1 2LA and, any notice to be given by us, may be given to you at your last address known to us.
e. Notwithstanding any other provisions, these Terms will not confer on any third party the right to enforce any of them, or our letter of engagement, for the purposes of the Contracts (Rights of Third Parties) Act 1999.

15. LAW & JURISDICTION
These Terms and the agreement between us, are subject to and to be construed in accordance with the law of Northern Ireland. Any dispute or difference arising between us and you shall be referred to the High Court of Justice of Northern Ireland to whose non-exclusive jurisdiction you irrevocably submit by continuing to instruct us, having had notice of these Terms and/or by your express acceptance of these Terms.
Schedule 1

LAW SOCIETY’S GUIDELINES ON THE DESTRUCTION OF FILES
Destruction of Files

This guidance note provides general guidance on appropriate minimum retention periods for client files. It is important to remember that the vast majority of the contents of a file will belong to the client. Clients should therefore be made aware of how long a firm intends to retain their information following closure of the file. This should be dealt with in the retainer letter and in correspondence upon file closure. In particular circumstances, it may be necessary for solicitors to retain files beyond the suggested minimum retention periods below; solicitors must determine how long it is necessary to retain files based on their knowledge of the file and the client.

GDPR and the Retention and Destruction of Files

One of the data protection principles under Article 5 GDPR requires that personal data must be retained for “no longer than is necessary for the purposes for which the personal data are processed” (Article 5 (1)(e)). The data minimisation principle requires that personal data is “adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed” (Article 5(1)(c)). Recital 39 GDPR states that this requires “ensuring that the period for which the personal data are stored is limited to a strict minimum”, and goes on to state that “in order to ensure that the personal data are not kept for longer than necessary, time limits should be established for the controller for erasure or for a periodic review”. These requirements impact not only on paper files held by solicitors, but personal data held in any format, including electronic files, emails etc.

It is important to remember that in the privacy notice which solicitors must make available to their clients under Article 13 GDPR, there is a requirement to state the “period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period”.


Solicitors are also reminded of the requirements of GDPR in relation to security of processing, and the requirement to ensure that any data processors they engage are GDPR compliant, and subject to appropriate contractual terms dealing with data protection. In practice this means ensuring that storage and destruction arrangements are adequate, and that appropriate contractual arrangements are in place with those providing external storage facilities or document destruction services.

In this guidance note we have set out suggested retention periods for the categories of documents likely to be held by many law firms. The limitation periods referred to are the primary limitation periods as set out in the Limitation (NI) Order 1989.However, it is not intended to be an exhaustive list of all types of files and each firm should ensure that an appropriate retention policy is in place, which reflects the legal and regulatory requirements to retain certain types of data for specified periods.

Solicitors must consider the relevant legislative requirements and regulatory regimes which may include:

Anti-Money Laundering/Counter Terrorist Financing; Revenue and tax requirements;
Companies Act legislation;

Solicitors Accounts Regulations & Duty of Confidentiality
Suggested Retention Periods:

Note that emails and electronically stored files have the same status as hard
Copy documents for all material purposes.

 

 

 

 

Document Type Suggested Retention Period Suggested Reason for retention Statutory Basis
Documents and information obtained to satisfy the customer due diligence requirements under The Money Laundering, Terrorist Financing and Transfer of
Funds (Information on the Payer) Regulations 2017 Five years beginning on the date

a) The transaction is complete, for records relating to an occasional transaction; or
b) That the business relationship has come to an end for records relating i) any transaction which occurs as part of a business relationship, or ii) customer due diligence measures taken in connection with that
relationship.

The records referred to at b) are not required to be kept for more than 10 years. Statutory requirement. Regulation 40 of the Money Laundering Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017
Debt Collection 7 years In order to protect the solicitor in the event of any
negligence claim. Limitation period + 1 year for service of Writ. Limitation period for actions founded on negligence (excluding PI) – 6 years.
Divorce 7 years (but see note below relating to files concerning children) In order to protect the solicitor in the event of any
negligence claim. Limitation period + 1 year for service of Writ. Limitation period for actions founded on negligence (excluding PI) – 6 years.
Civil Cases 7 years In order to protect the solicitor in the event of any
negligence claim. Limitation period + 1 year for service of Writ. Limitation period for actions founded on negligence (excluding PI) – 6 years.

seal) and correspondence files- 7 years Limitation period + 1 year for service of a Writ in cases of documents executed as deeds years, time limit for actions founded on instruments under seal etc- 12 years
Other correspondence files 7 years In order to protect the solicitor in the event of any
negligence claim. Limitation period + 1 year for service of a Writ. Limitation period for actions founded on negligence (excluding PI) – 6 years.


Wills

Wills may not be contested until long after they were originally drafted. In determining an appropriate retention period for wills, solicitors should take into account potential lifetime, and the possibility of a will being contested after the client’s death. The Limitation (NI) Order 1989 imposes a limitation period of 12 years in relation to actions in respect of the estates of deceased persons, from the date the right to receive the share or interest accrued. In relation to other file material relevant to the will solicitors may wish to retain this for as long as the will is stored, or to review the file and retain only the most important documents.

Solicitors may also wish to consider the retention of documents relevant to tax issues.

Clients under a disability as defined in the Limitation (NI) Order 1989

In determining the appropriate retention period, solicitors may wish to consider whether there is a potential for a cause of action by someone who is under a disability as defined in the Limitation (NI) Order 1989. Individuals under a disability may bring a claim after the ordinary limitation period has elapsed in accordance with the Limitation (NI) Order 1989.

Minors

In any type of file involving children, when determining the appropriate retention period, solicitors may wish to consider whether there is a potential for a cause of action by someone who is a minor as defined in the Limitation (NI) Order 1989. Solicitors may wish to consider retaining the file for 7 years from the minor reaches the age of majority (6 years plus one year).

Overriding limitation period for actions in tort (not involving personal injuries)

Where a claim in tort does not involve personal injuries, an action may not be brought after the expiration of fifteen years from the date on which the relevant act or omission occurred, even if the Plaintiff did not know of the facts giving rise to the claim unless there has been fraud, concealment or mistake. Solicitors may wish to consider this “long stop” limitation period when determining the appropriate retention period for a file.

 

Overriding limitation period for actions in tort (involving personal injuries)

Where a claim in tort does involve personal injuries, solicitors may wish to take into consideration their knowledge of the individual circumstances of the file when setting the retention period. This will include factors such as the date of knowledge, date of settlement, lifetime awards or personal injury trusts.

NOTE: This guidance is provided as general guidance only and the Law Society of Northern Ireland will not be liable for reliance placed upon it. Although we have taken every step to ensure that the information in this guidance is correct at the time of writing, the Law Society of Northern Ireland cannot accept responsibility or liability for any loss occasioned to any person as a result of action or refraining from action in consequence of any item herein,

 

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