Terms of Engagement
These Terms of Engagement (as amended by us from time to time) apply to all services provided by Macdonald Henderson Limited to its clients, unless otherwise expressly agreed in writing by a director of Macdonald Henderson Limited.
Where we have commenced work prior to your receipt of these Terms of Engagement, these Terms of Engagement shall apply retrospectively with effect from the commencement of our services, unless you notify us in writing without delay that you do not accept them.
In the event of any inconsistency between these Terms of Engagement and any Scope of Engagement (as defined in SCOPE OF OUR ENGAGEMENT), these Terms of Engagement shall prevail.
Macdonald Henderson Limited is a company limited by shares incorporated in Scotland with company registration number SC335501, whose registered office is at Wellington Place, 107 West Regent Street, Glasgow, G2 2BA, United Kingdom. Macdonald Henderson Limited is regulated by the Law Society of Scotland with registered number 21512.
Reference in these Terms of Engagement and in any Scope of Engagement to “the Firm”, “we”, “us” and “our” shall be deemed to include Macdonald Henderson Limited and all MH Persons (as defined in LIMITATION OF LIABILITY).
SCOPE OF OUR ENGAGEMENT
The scope of our engagement and the services to be provided in relation to any matter shall be agreed in writing between you and us at the outset of our engagement and may subsequently be varied only by written agreement (the “Scope of Engagement”).
We assume no responsibility for advising on, or bringing to your attention, any matter falling outside the Scope of Engagement. For the avoidance of doubt, we do not advise on, and accept no responsibility or liability whatsoever in respect of, accounting, tax or taxation‑related matters in any circumstances. You are solely responsible for obtaining appropriate advice from suitably qualified advisers in relation to such matters.
We advise only on the laws of Scotland. We assume no responsibility for advising on, or bringing to your attention, any matter relating to the laws of any other jurisdiction. Where such advice is required, we may, at your request, engage appropriately qualified advisers in the relevant jurisdiction on your behalf.
DIRECTOR RESPONSIBILITY
A named director of the Firm shall have overall responsibility for your relationship with the Firm (the “Client Relations Director”). The Client Relations Director shall maintain appropriate oversight of matters on which we act for you and shall have overall responsibility for our engagement. You may contact the Client Relations Director at any time, whether or not they are directly involved in any particular matter. The Client Relations Director shall not be changed without your prior agreement, except where such change is reasonably required due to circumstances beyond our control.
RESOURCES
We will give you: (i) the name of the director with overall responsibility for your particular matter (the “Transaction Director”), who may or may not be the Client Relations Director; and (ii) the names of any other persons with day-to-day responsibility for the conduct of your work.
We reserve the right to change the personnel assigned to your matter at any time. We shall ensure that appropriately qualified personnel are allocated to carry out our services.
AUTHORITY TO ACT
In the absence of specific written instructions to the contrary, we shall be entitled to rely on any instructions received from persons who appear to us to be duly authorised to instruct us on your behalf and shall incur no liability for acting in good faith on the basis of such instructions.
Without limitation to the foregoing, we shall be entitled to assume that:
- where the client is a company, instructions may be given by any officer or director of that company;
- where the client is a partnership, instructions may be given by any partner; and
- where there are joint clients (including, without limitation, spouses or civil partners, multiple shareholders or multiple executors or trustees), instructions may be given by either or any of them,
and that any such instructions are given with the authority of all relevant persons.
COMMUNICATION
In the absence of specific written instructions to the contrary, we shall be entitled to communicate with you and with any relevant third parties (including, without limitation, other professional advisers engaged in connection with your matter), and to receive instructions from you, by telephone, post, email or any other form of electronic means of communication.
We may require any oral instructions to be confirmed by you in writing or by email.
CLIENT TO PROVIDE INFORMATION
You shall promptly provide us with all information and documentation which is relevant to our engagement and reasonably required to enable us to carry out the services, and any further information which we may reasonably request. In providing information to us and in instructing us, you should not assume that we have, or will obtain, knowledge of any relevant facts, circumstances or background, even where similar or related information may have been provided to us in the course of a different engagement. We shall be entitled to rely on information provided by you or by third parties on your behalf as being complete, accurate, current and not misleading, and we shall have no obligation to verify the same unless expressly agreed otherwise in writing.
CONFIDENTIALITY AND LEGAL PRIVILEGE
Where, with your authority, we work with other professional advisers or third parties in connection with a matter, we shall be entitled to disclose to them such confidential information as we consider necessary for the purposes of providing the services.
We are frequently requested to provide information regarding our experience, including matters on which we have acted and clients for whom we act. Unless you instruct us otherwise in writing, we may refer to you publicly as a client of the Firm. We will not disclose confidential information relating to you or any transaction on which we have acted, except to the extent that such information is in the public domain or where disclosure is required by law, unless you otherwise agree.
You acknowledge that communications by electronic or other non‑face‑to‑face means (including email and telephone communications) are not entirely secure and may be subject to interception, loss, delay, corruption or unauthorised access. Whilst we take reasonable steps to maintain confidentiality and security, we shall not be responsible for any loss arising from our reasonable use of such communication methods.
We will take reasonable precautions to detect commonly known viruses before transmitting information electronically but do not warrant that electronic communications will be free from viruses or other harmful components. We will not encrypt communications or apply additional security measures unless expressly agreed in writing, in which case you will be responsible for any associated costs.
Certain communications between us may be protected by legal professional privilege; however, not all advice or communications will attract such protection. Further information regarding privilege may be provided by the Client Relations Director on request.
USE OF INFORMATION
In the course of establishing and maintaining our professional relationship, we may obtain personal data relating to you and, where relevant, to other individuals connected with you (for example, your family, employees or agents).
We will process information (including personal data) for the purposes of providing services to you, managing our relationship with you, complying with legal and regulatory obligations and for internal administration, training and risk management purposes.
We may disclose information (including personal data) to third parties engaged by us in connection with your matter (including counsel, experts, agents, other professional advisers and governmental or public bodies such as Companies House, Revenue Scotland or Registers of Scotland), strictly to the extent necessary for the provision of the services or for compliance with applicable legal or regulatory requirements.
We process personal data in accordance with applicable data protection legislation, including the UK Data Protection Act 2018 and General Data Protection Regulation 2016/679 (where applicable) (together the “Regulations”). We take appropriate measures to safeguard personal data and are registered with the Information Commissioner’s Office (the “ICO”) with registration number Z9518855. Any queries relating to personal data held by us should be addressed to the Firm’s Managing Director.
Where you provide us with personal data relating to any third party, you confirm that you have complied with the Regulations and any applicable data protection requirements in relation to that disclosure. It is your sole responsibility to ensure that this information has been obtained in compliance with the Regulations and any applicable data protection requirements.
Further information about how we collect, use and protect personal data, including details of your rights, is set out in our privacy policy, which is available on our website or on request. For general information on data protection, please refer to the ICO website at www.informationcommissioner.gov.uk.
PROCEEDS OF CRIME ACT, MONEY LAUNDERING AND OTHER REPORTING
We are subject to statutory and regulatory obligations relating to anti‑money laundering, counter‑terrorist financing and sanctions. Accordingly, we are required to verify the identity of our clients and, where applicable, any beneficial owners, and to verify the source of funds and/or wealth where relevant in connection with your matter. You will be required to provide relevant information and documentation to us and to any third‑party service provider engaged by us for this purpose. We may carry out electronic or other verification checks and reserve the right to pass the cost of such checks on to you.
Any failure or delay in providing requested documentation or information may result in us being unable to act for you, being required to cease acting for you and/or may adversely impact upon our ability to carry out your instructions in accordance with any previously agreed timetable.
The Firm is subject to reporting obligations under the Proceeds of Crime Act 2002, the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (as amended), the Terrorism Act 2000 and related legislation. In certain circumstances, these obligations require disclosure of information (including personal data) to the relevant authorities and may prohibit us from informing you that such disclosure has been made or from continuing to act on your matter unless and until appropriate consent or authorisation is obtained. We shall incur no liability for any loss, damages, penalties, interest, costs or charges arising as a consequence of compliance with such obligations.
We reserve the right to refuse to receive, hold or transfer any money or other funds where we, at our sole discretion, are not satisfied as to the source of the money or funds, including where the money or funds are received otherwise than from an account held in your name with a UK clearing bank. Please advise us without delay if you intend to transfer or arrange the transfer to us of any money or funds otherwise than from an account in your name with a UK clearing bank as we may not be able to complete any transaction or to conclude any proceedings on your behalf, and you may consequently suffer or incur loss, damages, penalties, costs, interest or charges if there is any delay in our accepting money or other funds on your behalf until we are satisfied with the source of the money or funds. We shall not be liable for any loss, damages, penalties, costs, interest or charges which you may so suffer or incur.
We reserve the right not to accept any payment sought to be made to us in cash.
ELECTRONIC ID VERIFICATION
In order to comply with our professional and regulatory obligations, we carry out electronic identity verification in respect of each client. The provider used for this purpose may change from time to time and the verification process may result in a footprint being recorded on your credit file. This should not affect your credit score. The cost of one standard electronic identity verification check will be no more than £30 per person, exclusive of VAT. Where the initial check does not satisfy our professional requirements or produces an inconclusive result, we reserve the right to carry out further verification checks, for which additional charges may be payable.
We may disclose the electronic identity verification checks to third parties where this is required in order to progress your matter or to comply with our legal or regulatory obligations.
USE AND PURPOSE OF ADVICE AND REPORTS
Any advice given or report issued by us is provided solely for your use and benefit, in connection with the matter on which we are engaged and for any purpose specified when the advice of report is given. You shall not disclose any such report or advice to any third party without our prior written consent. Irrespective of whether we give such consent, we shall assume no responsibility for, and shall owe no duty of care to or have any liability to any third party to whom the report or advice is disclosed, unless and to the extent that we expressly agree otherwise in writing between us and such third party.
You shall retain responsibility for deciding on your use of and for implementation of our advice or recommendations and for choosing to what extent (if any) you wish to rely on that advice or those recommendations.
FREEDOM OF INFORMATION AND RE-USE OF INFORMATION
We acknowledge the requirements of the freedom of information and re-use of public sector information legislation applicable in the United Kingdom.
We understand that where you are a public authority (as defined in the relevant legislative provisions) and you are in receipt of a request for information, you may be required to disclose certain information in order to meet your obligations under this legislation, subject to the various exemptions available and which may apply. We recognise that it is possible that a request for information may relate to our tendering for work, our engagement by you or to work undertaken by us, our agents or any of our related businesses following our engagement in order to perform legal or other related services for you.
Where you are a public authority and receive a request for information which may result in the disclosure (in whole or in part) of any information relating to any matter which concerns us, you will, prior to making any such disclosure, notify us and use all reasonable endeavours to consult with us in sufficient time in advance of any applicable deadline, so that we may both consider with you and assist you in identifying what part (if any) of such information may be disclosed having regard to all relevant factors, including that such information may include personnel data, financial or commercially sensitive information, trade secrets, confidential, legally privileged or other information which may result in harm to our business, officers, employees, clients or other third parties were it to be disclosed.
We also understand that where you are a public authority (as defined in the relevant legislative provisions), you may receive a request for the re-use of certain information.
Please also be aware that documents and papers which we have prepared for, obtained or provided to you may be the subject of our copyright or other intellectual property rights, or those of our licensors. You are not permitted to use, copy or reproduce any such documents for any purpose other than the original purpose for which they were provided to you without first obtaining our prior consent or that of our relevant licensor, nor are you entitled to permit any other person to do so.
INTELLECTUAL PROPERTY RIGHTS
We retain copyright and all other intellectual property rights in all documents and other works we develop or generate for you in providing the services (including know-how and working materials as well as final documents). We now grant you a non-exclusive, non-transferable, non-sub-licensable licence to use such documents or other works solely for the matter to which the services relate. If you do not pay us in full for our services, we may, on giving notice to you, revoke that licence and only re-grant it to you once full payment has been made. 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.
RETENTION AND STORAGE OF DOCUMENTS
Subject to any agreement to the contrary, during the course of, and on completion of, any matter we shall retain such correspondence, documents or copies thereof as in our professional judgment it is proper to retain, and for this purpose we may make or keep copies of documents and destroy other versions of those documents.
We shall not be obliged to keep any correspondence or documents retained (whether paper or electronic) or property relating to your matter for more than 5 years after completion of the matter or any longer period required by law or in accordance with our retention policy. After this time, unless we agree otherwise, we may then dispose of the documents and property without further reference to you.
METHOD OF CHARGING
Our policy is to discuss and agree with you the basis on which we will charge a fee for work undertaken on your behalf at the outset of your matter.
Where we provide you with a fee estimate, this represents a non-binding estimate only and is an indication, made in good faith and on the basis of the information we have at the time the estimate is given, of our likely fee for carrying out the work concerned. An estimate is subject to revision and is not a commitment by us to carry out the work for that fee.
Where we provide you with 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 the other provisions of this document and the Scope of Engagement), it becomes a commitment by us to carry out the instructed work for the fee quoted. The Scope of Engagement containing the fee quotation will confirm the scope of the work we will commit to undertake for that fee and any assumptions or bases on which the quotation is given. 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 standard hourly rates.
If 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 then applicable standard 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. Hourly rates vary according to the level of seniority of each lawyer involved in advising you and the expertise required. The hourly rate will vary between Director, Associate Director, Senior Solicitor, Solicitor, Trainee Solicitor and Paralegal, but as a guide, a Director will charge out at £350 per hour, an Associate Director at £300 per hour, a Senior Solicitor or Solicitor at £275 per hour and a Trainee Solicitor or Paralegal at £175 per hour, in each case exclusive of VAT.
All work in connection with the estate of deceased person(s) will be charged at a fixed rate of £350 per hour, exclusive of VAT.
Our hourly charge-out rates are revised by the Firm from time to time. An increase in charge out rates may also arise as a result of promotion of the lawyers involved in your transactions or matter. The increased rates will apply automatically to work done for you after the effective date of the change and you will be notified in writing or by email of such increase.
VALUE ADDED TAX (“VAT”)
VAT is charged at the current rate on all fees and on such outlays and expenses as applicable. Any fee estimate or fee quotation provided will be exclusive of VAT and outlays and expenses.
OUTLAYS AND EXPENSES
In appointing us to act on your behalf, you are also authorising us to incur on your behalf such outlays and expenses as we consider necessary in connection with our engagement, which you will be required to reimburse to us. You may place a limit on the amount of fees and/or outlays and expenses which may be incurred without your prior approval, provided that the limit is realistic and provided to us in writing.
The Firm will add to its charges the cost of outlays and expenses incurred on your behalf, such as counsel’s fees, search fees, registration/recording fees, stamp duty, stamp duty land tax, bank charges, currency exchange costs, couriers and other third party accounts, travelling, subsistence and accommodation and volume photocopying charges.
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. Outlays and expenses may be invoiced to you as they arise and may be invoiced after a fee has been rendered.
Where we pay commission or marketing costs, this is an outlay payable by you however on some occasions we may reduce our standard fee to cover the cost of same.
PAYMENTS TO ACCOUNT
A payment to account covering counsel’s fees and all other material outlays may (and in litigation matters will ordinarily) be sought. You will be asked to make the payment to account at the time you instruct us on the relevant matter. Thereafter outlays only fee notes will be issued as outlays 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 and credited against our invoice(s) to you for the relevant fees and/or expenses and outlays.
INTERIM BILLS
The Firm may render its fee at the end of a matter or may render interim accounts, including at the end of each month for all work undertaken on your instructions within that month.
PAYMENT OF BILLS
Payment of fees, outlays and expenses is due forthwith after the date of invoice or at such other time (e.g. on completion of your matter) as may be specified in our Scope of Engagement or by written agreement. If you wish to dispute any invoice, you should speak to the Transaction Director without delay. If fees, outlays and expenses are not paid forthwith, we will be entitled to charge interest on the sum overdue from the due date until payment at 8% above The Royal Bank of Scotland plc base rate.
You are responsible for our charges unless we have agreed otherwise in writing, even if:
- a Scope of Engagement has not been issued or signed;
- we have agreed to submit an invoice to a third party;
- you are insured; or
- another person has agreed to meet your costs, subject to our prior consent.
You shall be responsible for payment of our charges whether or not the matter proceeds to completion, unless otherwise agreed in writing.
Where we are instructed by two or more clients jointly, each such client shall be jointly and severally liable for our charges – i.e. we may recover the full amount of our fees, outlays and expenses from any of you, unless otherwise agreed in writing with you.
Payment of fees, outlays and expenses shall always be made in pounds sterling by bank transfer, unless otherwise agreed in writing.
If any of our charges are overdue for payment, we reserve the right to suspend work and to retain documents and papers belonging to you, irrespective of the matter to which they relate, until all sums outstanding to us are paid.
LIMITED COMPANIES
Where the client is a limited company the Firm acts on the basis that all directors of the limited company are liable jointly and severally for the fees and disbursements for all work carried out by the Firm on behalf of the limited company. This applies irrespective of when a director may be appointed to the limited company. Joint and several liability of the directors of the limited company will apply whilst a fee is outstanding to the Firm for work carried out on behalf of the limited company, and whilst these Terms of Engagement apply. These provisions shall apply to the directors of the limited company mutatis mutandis where the client is a partnership or a limited liability partnership as the case may be.
CLIENTS’ MONEY
Any money belonging to you which is received by the Firm in the course of dealing with your matter and which is not required for fees or outlays, shall be either:
- held by us in accordance with the provisions of the applicable solicitors’ accounts rules (in which event any interest accruing thereon shall be accounted for to you in terms of these rules); or
- if you so direct, remitted to you immediately on receipt thereof or otherwise applied as you may direct.
Any such funds held by us on your behalf will be deposited with banks within The Royal Bank of Scotland plc, our preferred service provider, unless we agree otherwise or you request otherwise in writing or by e-mail. Should you request that we set up banking facilities on your behalf at a bank outside The Royal Bank of Scotland plc, we reserve the right to charge you for the administrative costs of so doing. We advise that the service available and costs associated with effecting transactions through banks outside The Royal Bank of Scotland plc may be considerably less efficient and more expensive than those available through our preferred service provider. We shall have no liability to you or any other party in respect of any loss or cost incurred (including without limitation losses as a result of delays) if you request that funds are deposited otherwise than with banks within The Royal Bank of Scotland plc.
The Financial Services Compensation Scheme (the “FSCS”) applies a £120,000 compensation limit to each individual client (as amended by the FSCS from time to time). If you hold other personal monies within the same banking group as the monies which we deposit on your behalf in your client account with that banking group, the limit remains £120,000 compensation in total (as amended by the FSCS from time to time).
We shall have no liability to you or any other party (other than liability up to the minimum compulsory amounts required by the applicable rules on solicitors’ professional indemnity insurance at the relevant time, details of which we can provide to you on request) in respect of any loss or cost incurred in circumstances where any bank with whom your funds have been deposited by us on your behalf (including for the avoidance of doubt, any bank within The Royal Bank of Scotland plc) suffers any insolvency event or proceedings or failure in the circumstances envisaged by the Financial Services Compensation Scheme or otherwise fails to comply with any instruction to remit funds to a third party or return funds to you or delays before complying with any such instruction.
We make no charge for the collection of interest on clients’ deposits but we are entitled to retain interest or commission paid to us by our banks or third party service providers.
Any money belonging to you and received by the Firm in the course of our dealings with you which is not required for fees or disbursements shall be held by the Firm in accordance with the provisions of the Solicitors (Scotland) Accounts Rules. These funds are held with The Royal Bank of Scotland plc. Interest will be paid on these sums in accordance with the Solicitors (Scotland) Accounts Rules. Please note that the Firm participates in RBS Clients’ Monies Service (CMS). The rate of interest is variable – with you and the Firm earning equal shares of any interest earned. Details of the rates of interest paid on clients’ money held in bank deposit accounts are available on request.
TRANSFER OF FUNDS
If you require us to transfer funds held on your behalf or to your order as part of a transaction or at the conclusion of a transaction, we shall require clear unambiguous written instructions in our hands no later than 24 hours prior to the proposed date and time of transfer. Unless such instructions clearly and unambiguously state otherwise, we shall make all transfers in pounds sterling. We will have no liability for any bank charges relating to the transfer nor for any loss you may incur as a result of currency exchange rate fluctuation. We are unable to give assurances as to the timing of the receipt of funds into the recipient’s bank account, but you should note that this may take a few days, particularly in the case of international transfers. If we have instructed the transfer in accordance with your instructions which have been given to us in the manner and by the time specified above, we shall have no liability to you or any other party in respect of loss or costs arising from any delay or error in respect of the transfer of funds.
BANK DETAILS
Our client account details are Macdonald Henderson Clients’ Account, The Royal Bank of Scotland plc, City Branch, Glasgow, Sort Code 83-07-06, Account Number 10306933. Please note that our bank details will NOT change during the course of our engagement.
LIMITATION OF LIABILITY
We shall incur no liability to you if we are unable to carry out your instructions as a result of any cause beyond our reasonable control. In such circumstances, we shall notify you as soon as reasonably practical in order that you can decide whether to terminate or amend our instructions.
The aggregate liability to you of the Firm, its directors, employees and agents (together “MH Persons”) in contract, delict or under statute or otherwise, for any loss, damage, cost or expense suffered by you arising out of or in connection with each engagement on which you have instructed us (including any associated engagements ancillary to the primary matter), howsoever caused, including by our negligence, shall not exceed the amount (if any) specified in the relevant Scope of Engagement or, if no amount is so specified, £2 million.
Subject to the overall limitation of liability as set out above, 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 fair and reasonable after taking account of the contribution (if any) to the relevant loss or damage of you or 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, or waiver of all or part of the liability, of such person by any agreement made by you before or after the loss or damage occurred, nor of such person having ceased to exist or ceased to be liable.
In circumstances where you make a claim against us and we wish to claim contribution from a third party, but that third party’s liability to you has been excluded or limited thereby reducing the contribution we can recover from them, you will make an equal reduction in your claim against us. For this purpose, “reduction” and “contribution” include a 100% reduction or contribution.
You shall not bring any claim personally against any individual officer, employee or agent of the Firm in respect of any loss or damage suffered by you arising out of the work carried out for you by us.
No MH Person shall have any liability to you for:
- any loss of profit or revenue;
- loss of business or business opportunity;
- loss of anticipated savings;
- loss of goodwill or injury to reputation; or
- any special, indirect or consequential loss,
in each case whether or not reasonably foreseeable by the MH Person.
Any claim from you against the Firm in connection with work carried out by us for you must be made in writing within 3 years of the date on which you became aware, or ought reasonably to have become aware of circumstances giving rise to a potential claim against us.
We shall incur no liability to you for any loss or damage suffered by you arising from fraud, misrepresentation or withholding of information or inaccuracy of or omission from information, whether on your part or that of other sources of information relied on by us.
The benefit of the limitations and exclusions on liability set out or referred to in these Terms of Engagement shall be held by the Firm as agent and trustee for each MH Person.
The limitations and exclusions on liability set out or referred to in these Terms of Engagement shall not apply to any liability for death or personal injury caused by our negligence, liability arising as a result of fraud or fraudulent misrepresentation on our part or any other liability which cannot lawfully be excluded or limited.
THIRD PARTIES
If we engage others on your behalf (such as counsel, overseas lawyers and expert witnesses), whether in the UK or abroad, we will do so as your agent and we will not be responsible for any act or omission of those other persons.
The terms on which we agree to conduct your matter (whether or not contained in these Terms of Engagement) are not intended to be enforceable by anyone but the parties to that agreement.
Where you are using third parties to provide information, advice or other assistance in support of the services we are providing to you, you will be responsible for the management of such persons and their performance, including the timelines and quality of their input and work.
CONFLICT OF INTEREST
Having accepted instructions to act for you in respect of any matter we shall not knowingly act for any other client in respect of the same or a related matter unless you have agreed that we may do so. Our clients may include persons who operate in your area or a related area. We retain the right to act for these clients, subject to our professional duties in relation to conflict of interests and our obligations of confidentiality referred to in these Terms of Engagement.
If, having accepted instructions to act for you, a conflict of interest arises or is subsequently discovered we reserve the right to terminate our engagement if, in our professional judgment, we consider that it would be inappropriate to continue to act for you.
FINANCIAL SERVICES AND MARKETS ACT 2000
Incidental Financial Business and Financial Promotions
The provision of our legal services may include incidental financial business. We will not provide services constituting incidental financial business unless we agree to do so in writing. “Incidental financial business” includes (1) insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts; (2) limited investment business services; and (3) limited mortgage mediation activity, but in each case only insofar as these are integral to the professional services which we are providing to you.
We do not conduct any such services on a standalone basis. Our engagement does not, and will not, include giving you any advice on the merits of entering into any transaction relating to investments unless and to the extent that we agree in writing to give such advice as incidental financial business in relation to the provision of legal advice to you. Otherwise, we will assume that you have taken, or will take, your own decision to negotiate or enter into any such transaction solely on the basis of your own evaluation of the merits of the transaction and any advice received from a person authorised under the Financial Services and Markets Act 2000 (“FSMA”) to give investment advice.
We will not communicate, either to you or on your behalf to any other person, any invitation or inducement to engage in investment activity unless that communication is exempt from, or otherwise not subject to, FSMA restrictions on financial promotions. Nothing we communicate to you or on your behalf is intended to be, or should be construed as, any such invitation or inducement unless that communication is exempt from, or otherwise not subject to, FSMA restrictions on financial promotions.
Scotland
The Firm is not authorised by the Financial Conduct Authority (“FCA”) under the FSMA nor are we regulated by the FCA. We are licensed to carry on incidental financial business by the Law Society of Scotland under the Solicitors (Scotland) (Incidental Financial Business) Practice Rules 2004. This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by the Law Society of Scotland. For further information on who to contact to make a complaint please see COMPLAINTS and REGULATION OF THE FIRM.
The Firm has Professional Indemnity Insurance under the Law Society of Scotland’s Master Policy. The current level of indemnity on the Master Policy is £2 million per claim. We are also covered by the Scottish Solicitors’ Guarantee Fund, which is a fund established by Section 43 of the Solicitors (Scotland) Act 1980 for the purposes of making grants in order to compensate persons who, in the opinion of the Council of the Law Society of Scotland, suffer pecuniary loss by the reason of dishonesty on the part of a Scottish solicitor in connection with the practice of the solicitor.
COMPLAINTS
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 Director in the first instance. If the matter is not resolved to your satisfaction, your comments should be referred to the Client Relations Director or, if the Client Relations Director is also the Transaction Director for the matter, to the Firm’s Managing Director. Ultimately you have redress to the appropriate regulatory body. Please see REGULATION OF THE FIRM.
REGULATION OF THE FIRM
The Firm is regulated by the Law Society of Scotland. The Law Society of Scotland is a designated body for the purposes of FSMA. In Scotland you have a right to raise any concerns regarding our services with the Scottish Legal Complaints Commission (“SLCC”): Address – Capital Building, 12-13 St Andrew Square, Edinburgh EH2 2AF; Email – enquiries@scottishlegalcomplaints.org.uk; Telephone – 0131 201 2130.
The SLCC operates strict time limits for accepting complaints. This means complaints must be made by a certain time after the service ending or the conduct occurring. However, the SLCC will disregard any time it considers that the complainer was excusably unaware of their concerns. If you make a complaint after the deadline has passed, it is unlikely that we will be able to consider your complaint unless there are exceptional circumstances.
If you would like to contact the appropriate regulatory body regarding the work undertaken on your behalf by the Firm, the Transaction Director or the Client Relations Director would be happy to advise you of the role and contact details of the relevant body in relation to your query.
We recognise that Alternative Dispute Resolution Regulations have implemented ADR/EDR Directive 2013/11/EU to promote alternative dispute resolution as a means of redress for consumers in relation to unsatisfactory services. We have however, chosen not to adopt an ADR process and if you have any concerns about the services you receive from the Firm you should contact the Client Relations Director.
MAILING LISTS AND MARKETING
We will add your contact details (which, if you are a business, may include those of your directors, senior managers and other employees who provide us with instructions) to our marketing database, so that we can use this information to keep you informed about developments at the Firm and legal developments in areas that we consider may most affect you, and to send you invitations to seminars or other events we feel might be of interest to you. Sometimes we may need to hold data in relation to special dietary requirements which you (or your directors, senior managers or employees) may have or in relation to any relevant health issues, such as allergies or disabilities requiring special arrangements. This information shall only be used for relevant purposes, such as in relation to the organisation of seminars, events and access.
We will not release any personal data which you provide to us to any unrelated person or third parties for any marketing purposes without your prior consent.
Should you decide that you do not wish us to use any of your contact details in any of the ways referred to above at any time or wish us to amend or remove your contact details from our marketing database, please contact your Client Relations Director.
TERMINATION
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 our professional relationship is terminated 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 Scope of Engagement, together with any further fees and outlays and expenses reasonably incurred by us in connection with the transfer of your 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 our engagement is terminated in respect of a particular matter, but we continue 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.
Any provisions of these Terms of Engagement and/or the Scope of Engagement which by their nature extend beyond termination of our relationship or completion of the particular transaction or matter shall survive such termination or completion.
INVALIDITY
If any provision or part of any provision of these Terms of Engagement is, or becomes, invalid, illegal or unenforceable, that provision or part-provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and, if required to achieve that, the provision or part-provision shall to the appropriate extent be deemed not to form part of these Terms of Engagement. In such circumstances, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired.
APPLICABILITY TO MH PERSONS, SUCCESSORS & GROUP COMPANIES
We shall be entitled to transfer our rights and/or our obligations under these Terms of Engagement and our Scope of Engagement to any business which is a successor to or otherwise acquires our current business. Following any such transfers, references to the Firm and to MH Persons shall be construed accordingly by reference to such transferee business.
These Terms of Engagement apply to all companies which you control or, if you are a company forming part of a group, all companies in that group, where we are instructed to carry out work for such a company
ACCEPTANCE OF TERMS OF ENGAGEMENT
Your continuing instructions to us will confirm your acceptance of these Terms of Engagement in full. If you are not prepared to accept these Terms of Engagement, please notify your Transaction Director or Client Relations Director in writing without delay.
These Terms of Engagement supersede any earlier terms of engagement we may have agreed with you and, in the absence of express agreement to the contrary, shall apply to the services referred to in any Scope of Engagement (if any) and all subsequent services which we provide to you.
From time to time, it may be necessary for us to amend or supersede these terms by new terms. Where this is the case, we shall notify you of the proposed changes and, unless we hear from you to the contrary within 14 days after such notification, the amendments or new terms will come into effect from the end of that period.
JURISDICTION
Any dispute arising out of the provision of services by us to you shall be subject to the exclusive jurisdiction of the Courts of Scotland. However, we shall, in our sole discretion, be entitled to raise proceedings in any jurisdiction we deem appropriate.