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Terms and Conditions: Consumer - Litigation

Please read these terms carefully. These terms tell you who we are, how we act for you, how you and we may change or end the agreement and what to do if there is a problem. If you have any queries or do not understand any element of these terms then please contact us to discuss.

  1. These terms together with the legal instruction form (LIF) set out the basis upon which we act for you (together the "Agreement"). If a conflict arises between these terms and the LIF then the LIF prevails in respect of the conflict.
  2. References to "us", "our", "we" means Ashfords LLP (a limited liability partnership registered in England and Wales under registration number OC342432). Our registered office is Ashford House, Grenadier Road, Exeter, EX1 3LH.
  3. We are authorised by the Solicitors Regulation Authority (SRA) with number 508761.
  4. This Agreement will be construed in accordance with the laws of England and Wales and all disputes will be subject to the non-exclusive jurisdiction of the English Courts.
  5. If any court or competent authority finds that any clause (or part clause) in these terms is invalid, illegal or unenforceable, that clause (or part clause) shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these terms shall not be affected.
  6. References to "including" or "includes" shall be deemed to have the words "without limitation" inserted after them.
  7. We may assign or novate any or all of our rights and obligations under this agreement.

Our contract with you

  1. We will carry out the work set out under "scope" in the LIF (Work). Any additional work MUST be agreed by us and, once agreed, will form part of the Work.
  2. We will retain professional indemnity insurance to cover the advice we give you. Our worldwide cover is currently provided by Axis Speciality Europe SE, 3rd Floor, 71 Fenchurch Street, London, EC3M 4BS.
  3. You will promptly provide us with such information and/or documentation necessary to enable us to:
    1. carry out the Work;
    2. comply with our regulatory responsibilities (including money laundering checks).
  4. You will notify us of any change in
    1. circumstances that may impact on the Work;
    2. your contact details.
  5. You agree that:
    1. you will pay our invoices in accordance with this Agreement;
    2. we may (at our discretion) carry out credit checks against you. This may affect your credit rating.
  6. You agree that we may list you as a client (including your logo) on our website or in promotional material including any submission to legal directories.
  7. Any failure by you to meet the above obligations may result in a delay or failure by us in carrying out the Work. Any delay or failure to carry out the Work in these circumstances will not be considered a breach of these terms.
  8. If you wish to make a change to the Work than please contact us as soon as possible. We will let you know whether the change is possible, the impact on our fees and the timing for the work and anything else that may be impacted or necessary as a consequence of your request.

Exclusions

  1. Unless expressly including in the scope, we DO NOT advise on commercial viability issues, investments, tax, pensions, or any law other than English.
  2. We are not responsible for reminding you of dates or deadlines.
  3. Subject to the limitation of our liability provisions below, we are not liable for any comment, advice or suggestions given by us that are not included in the scope set out in the LIF.
  4. Any advice given by us is for your benefit only and no third party shall or can rely on it for any purpose whatsoever.

Limitation of our liability

  1. We do not limit our liability for death or personal injury caused by our negligence, contractual breach or any other liability we cannot limit by law.
  2. Save as set out above or unless otherwise expressly stated in the LIF, our liability is limited to a maximum of £3 million.
  3. We are carrying out the Work for domestic and private use only. If any of the Work is for commercial or business purpose then our liability is limited to direct losses only and we will have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.
  4. Without prejudice to the above, if our ability to claim any contribution from a third party is prejudiced by any limitation of liability agreed with that third party by anyone other than us, then we will not be liable for any amount that we would have recovered from that third party but for that limitation of liability.
  5. All implied warranties or conditions are expressly excluded to the fullest extent possible.

Interest on client monies

  1. In accordance with the Solicitors Accounts Rules, we will account to you for any funds in lieu of interest as appropriate.

Fees

  1. Our fees and any additional charges are:
    1. subject to any applicable VAT; and
    2. due immediately on receipt by you of the relevant invoice.
  2. We reserve the right to review our charge out rates periodically. If there is any increase, we will notify you in advance.
  3. In addition to our fees we may also charge (on a time and materials basis) for administration including photocopying, document preparation such as court bundles and preparation of invoices.
  4. You shall pay the fees (and any additional charges) as set out and/or calculated in accordance with the LIF.
  5. Whilst we may render interim statute invoices to you all of our invoices will be final statute invoices for the piece of work carried out in accordance with the Solicitors Act 1974.
  6. We shall be entitled to:
    1. require money on account before we carry out any Work;
    2. settle any fees owed by you from funds we hold for you on our client account;
    3. charge for all expenses incurred by us including CHAPS and/or online identification checks (whether they are included in our fee estimate or not).
    4. retain your files until you have paid all outstanding fees;
    5. charge you interest at the rate of 8% on any invoices that are outstanding for more than 30 days from the invoice date;
    6. charge on an indemnity basis for the costs incurred by us if you fail to pay your invoice by the applicable date;
    7. charge an administration fee of £100 if the matter is referred to our Asset Recovery Department for enforcement.

Regulatory Matters

  1. We are not authorised by the Financial Conduct Authority (FCA) although we are included in the FCA register for insurance mediation activity.
  2. We cannot advise you on investments other than in limited circumstances that are linked with the Work. We may recommend you to third parties who can provide investment advice but we are not liable nor do we warrant any advice they may give.
  3. We are required by law to obtain satisfactory evidence of your identification and possibly individuals associated with you. You MUST NOT send us any funds until we have notified you that these checks have been completed Our preferred method is to carry out on-line identity searches, utilising a third party data source which will leave a "soft footprint" on your credit file.. We may charge an administration fee for carrying out these checks.
  4. We do not accept any payments in cash.
  5. After your matter is completed we will keep your files in accordance with our then current Retention and Destruction Policy (a copy of which is available on request).
  6. If you want access to your file then please contact us. We may levy a charge for recovering your file and/or providing copies.

Information and Data Protection and Confidentiality

  1. This section contains, in addition to other information and terms, a consolidated version of our Privacy Notice. For a full version of our Privacy Notice, please see attached.
  2. Any reference to terms not defined in these terms or LIF shall be defined in the attached Privacy Notice.
  3. Unless disclosure is permitted or required by law or regulation, or to provide legal services to you, or you otherwise agree, we will treat information (including any Client Personal Data) provided by you as confidential. Third parties regulators and our auditors may have access from time to time to your information (including Client Personal Data)but they will be required to keep it confidential unless the law or regulation states otherwise, or you otherwise agree.
  4. You acknowledge that we may be required to disclose some of your information (including financial and Client Personal Data) to third parties in order to comply with certain legislation including the United States, Foreign Account Tax Compliance Act.
  5. We use and process the information (including financial and Client Personal Data) you provide us for the purpose of providing legal services to you, carrying out the Work, administering your file and for related purposes, including updating and enhancing client records, recovering debts owed to us, checking creditworthiness, analysis to help us manage our practice, statutory returns, legal and regulatory compliance, and marketing and communicating to you about Ashfords' services and events. Our use of that information is subject to your instructions, relevant data protection legislation and our duty of confidentiality
  6. Unless disclosure is permitted or required by law or regulation, or is necessary to provide legal services to you, or you otherwise agree, or other than for the purpose of exercising our rights or responsibilities under this Agreement, we will only disclose your Client Personal Data to third parties to the extent necessary to carry out Work or to provide legal services to you.
  7. As part of providing you with the best service possible, we would like to send you information from time to time which we consider may be of interest to you, but you can choose not to receive such information at any time. Please let us know if you would prefer not to receive such information.
  8. We process Client Personal Data supplied to or obtained or created by us as a Data Controller.
  9. Both you and we shall comply with our respective obligations under relevant data protection legislation as Data Controller of Client Personal Data and shall use all reasonable efforts to assist the other to comply with such obligations as are respectively imposed on them by relevant data protection legislation. As we will both have Data Controller responsibilities in respect of the same Client Personal Data, we and you each acknowledge and agree to the allocation of responsibility for compliance with applicable data protection legislation, as set out below.
  10. When you supply Client Personal Data to us you are responsible for and will ensure that:
    1. the Client Personal Data is not subject to any restriction which would prevent or restrict you from disclosing the Client Personal Data to us or prevent or restrict us from using the Client Personal Data in accordance with this Agreement;
    2. you have been transparent to all affected data subjects about the Client Personal Data and the purposes for which we will use it, and you have given them all relevant information that the law requires you to do;
    3. the Client Personal Data is accurate; and
    4. you have only provided us with such Client Personal Data as is necessary for the relevant purpose for which we need it.
  11. Both you and us shall be responsible for our separate obligations in respect of the Client Personal Data when in the relevant party's possession, in relation to:
    1. Client Personal Data retention periods;
    2. the security obligations set out in relevant data protection legislation;
    3. any restrictions on transfers outside of the EEA, instigated by that party;
    4. any data subject rights exercised in respect of the Client Personal Data in its control.
  12. In the event of a breach by either party of their respective obligations under relevant data protection legislation, the party in breach shall be liable to the other party for all or any losses incurred by the other party, or for which the other party may become liable, in each case to the extent arising as a result of such breach. Nothing in this Agreement shall exclude or limit liability under this Information Protection and Confidentiality section.
  13. The Client Personal Data we process may be transferred to our service providers and agents for the purposes specified in this Agreement..

Electronic communication

  1. We may communicate with you by email or other electronic means unless we otherwise agree.
  2. We will take reasonable precautions to protect information sent electronically by us but this is not guaranteed.
  3. We are not liable for any damage or claim arising from any viruses, malware, trojan horses or unauthorised code. You are responsible for ensuring you have in place all suitable and up-to-date anti-virus and malware software.

Any queries and concerns

  1. If you have any concerns about the Work then in the first instance please raise this with the relevant advisor or their supervisor (as set out in the LIF). If this is not suitable then please contact our Professional and Financial Risks team on 01392 333535 or by email at professional&financialrisks@ashfords.co.uk.
  2. All complaints will be responded to within 8 weeks. If you are not happy with the way we handle your concerns then you may contact the Legal Ombudsman at Legal Ombudsman, PO Box 6806, Wolverhampton, WV1 9WJ or telephone 0300 555 0333 or legalombudsman.org.uk. There are time limits for bringing complaints with the ombudsman and details can be found at the above website.
  3. If you are dissatisfied with an invoice from us then you may be able to apply to the Court for an assessment. Details can be found at hmctsformfinder.justice.gov.uk.

Termination and suspension

  1. You may terminate this Agreement with us at any time by notice in writing. You will be responsible for payment of all outstanding fees incurred by us as at the date of termination together with any fees and/or expenses we have committed to incur.
  2. We may terminate this Agreement at any time if we have good reason to do so. Examples, include failure to (a) provide clear instructions and information, (b) pay our fees,  (c) conflict of interest or (d) to comply with any statutory requirements.
  3. If you fail to make any payments due under this agreement we may (at our discretion) suspend the Work until full payment has been made.

Your right to cancel

  1. As a consumer, you may have the right to cancel our agreement at any time within 14 days from the date set out in the LIF. You can do this by completing and returning the cancellation form enclosed with the LIF.
  2. This right exists only if the Agreement with us constitutes an off-premises or distance contract.
  3. We will not start any work for you until the expiry of the 14 day period unless expressly requested by you.

If we do commence work and you cancel during the 14 day period then we will charge you for all work undertaken up to the point of cancellation.

Litigation matters

  1. As this is a litigation or "contentious" matter, we are required to notify you of the following additional elements.

Costs and Fees

  1. You are primarily responsible for our fees
  2. Insurance: you should check your insurance policies to see if you have any cover in relation to these proceedings. If you do or think you might then please notify us immediately.
  3. After the Event Insurance: You may be entitled to obtain an insurance policy to cover your fees and/or adverse costs and expenses if you are involved in court proceedings. Please note that it is not possible to recover the premium from your opponent for this sort or cover. Please let us know if you would like us to explore this option.
  4. Legal Aid: we do not undertake legal aid work.
  5. Organisation Funding: you may be entitled to funding by a third party (for example a Trade Union). Please let us know immediately if this is the case.

Conditional Fees

  1. We may be able to act for you on a conditional fee agreement (CFA) (whereby the fees we receive is based on the outcome of the case and includes an uplift if we are successful). However, please note that any uplift is NOT recoverable from your opponent and will be your responsibility.
  2. Please let us know if you wish to discuss a CFA for your matter.

Damages Based Agreement

  1. We may be able to act for you on a damage based agreement (DBA) (whereby we receive a percentage of any damages awarded to you up to a maximum of 50%).
  2. Please let us know if you wish to discuss a DBA for your matter.

Expenses

  1. Third party expenses incurred by us on your behalf (such as barrister costs and court fees) will be payable by you. We will discuss these with you as your matter progresses.

Limitation

  1. It is possible that there are time limits (either contractual or statutory) for you to bring your claim. These limits will depend on the nature of the claim and its specific circumstances. As such it is important that you notify us immediately if you have any reason to believe that you are approaching the end of a limitation period.
  2. Please note that we are only advising under English law and other jurisdictions may have shorter limitation periods.

Documents

  1. You should ensure that you preserve all documents and materials (whether held manually or electronically) and they are kept safe. These documents and materials together with your instructions are key to our evaluation of your case.

Court Proceedings

  1. In some circumstances you may be required to pay the other parties' legal charges and expenses (if for example, you issue court proceedings and lose). If so, these charges and expenses IN ADDITION TO our charges and expenses will be payable.
  2. If you win the case, a court may (but is not obliged to) order the side to pay your costs. However, even if a court awards such costs there is usually always a shortfall between the actual amount awarded and the actual costs incurred. In addition, you may incur additional costs enforcing the order for costs. In cases where the sum disputed is over £25,000 then the court may also require detailed cost assessments before it determines the level of costs that you can recover. Irrespective, you are primarily liable for any shortfall in our charges and expenses.
  3. It is also possible that you can succeed on some parts of a case and not on others. This can result in being ordered to pay costs in the areas you were unsuccessful in.
  4. Even if judgment is given in your favour, the recovery of costs from the other side is dependent on their financial circumstances. You may incur additional costs pursuing them for such costs.
  5. If a claim is up to £10,000 then it is likely that it will be assigned to the small claims track. Costs are generally NOT recoverable for small claim track matters.
  6. If a claim is between £10,000 and £25,000 then it is likely it will be allocated to the fast claims track. Only limited costs are usually recoverable in these circumstances.

Time Limits

  1. Please note that strict time limits will apply to take certain steps throughout the proceedings. If these time limits are not complied with then your claim may be struck out or judgment entered against you.

Foreign Lawyers

  1. If lawyers in a foreign jurisdiction are required and these instructions are routed through us then this is done on your behalf. We have no liability to you for their advice and you will be responsible for their costs unless we agree otherwise in writing.

Client Guides

  1. Further guides on being a potential claimant and/or defendant are available on our website at ashfords.co.uk.

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