TERMS OF BUSINESS
BAIRD & COMPANY LAWYERS & ESTATE AGENTS LLP
The firm of Baird & Company Lawyers & Estate Agents LLP trading as Baird & Company, Incorporated under the Limited Liability Partnerships Act 2000 (Registered Number 300936) (hereinafter referred to as “the Solicitor”) members of and regulated by the Law Society of Scotland and the signatory hereto being the client and the client’s executors and representatives (hereinafter referred to as “the Client”) agree that the following terms of business shall apply in respect of the work/instructions which the Client provides to the Solicitor:-
1. The Solicitor will give the instructions due care and attention. The Solicitor can only act on information and instructions provided directly to him by the Client. The Client should not assume that the Solicitor has knowledge of any factual matters. Instructions can be verbal or in writing although the Client may be requested to confirm verbal instructions in writing. E-mail instructions will be actioned only if agreed in writing with the Solicitor. No responsibility can be accepted for any delay in acting on E-mail instructions due to difficulties with this form of communication, unless the E-mail has been acknowledged by the solicitor. If there is any change in the Client’s instructions the Client must notify the Solicitor immediately. The Client must specify in writing the capacity in which they are instructing the Solicitor (e.g. an officer of a Company, partner of a firm etc.) failing which the Solicitor shall be entitled to assume that they are acting for the client as an individual. In the event that instructions are provided to the Solicitor by a director of a company the company instructing and the instructing director will be personally liable for the solicitor’s charges unless written confirmation is obtained from the Solicitor that there shall be no liability on that director as an individual. Where work is being instructed on behalf of spouses or civil partners the Solicitor shall be entitled to accept instructions from one spouse/civil partner on behalf of both spouses /civil partners unless instructions to the Solicitor are provided in writing to the contrary.
2. The Client’s business will be handled principally by the Solicitor to whom the Client’s instructions should be addressed. The Solicitor can be contacted during the consulting hours Monday-Friday 10.00a.m to 5.00p.m (Excepting Local and Public Holidays) or at other times by mutual arrangement. If there is any difficulty in making contact the Client should leave a message with the Receptionist or secretary of the Solicitor for action.
3. The Solicitor will handle the instructions competently.
4. The Solicitor will carry out the instructions within a reasonable time.
5. The Solicitor will report progress and any material developments which require consideration and discussion.
6. The Solicitor will keep the business of the Client and related documents confidential. Information provided to the Solicitor will only be disclosed to parties authorised by the Client or as required by the Law Society of Scotland or any other authorised body. The Solicitor is under a statutory duty to report any matter where there are circumstances which may indicate money laundering, criminal activity, abuse of legal aid or where the client fails to verify identity, address or the source of funding to the National Crime Agency or such other body or organisations as required by the relevant regulations or legislation.
7. The Solicitor’s duties to the Client are always subject to his other duties to the Court, the public and fellow members of the legal profession.
8. The Solicitor will defend the Client’s interests. The Solicitor is unable to guarantee success in any Court proceedings, litigation or tribunals.
9. The Solicitor will be independent and will give the Client honest and unbiased advice on what is best for the Client. The Solicitor shall be entitled to refuse to act for a client or to decline to act. In certain circumstances, the Solicitor may, with the Client’s agreement, refer the Client to an independent financial advisor, specialist claims solicitor, Counsel, accountant, tax specialist, insolvency practitioner or an organisation providing specialist or expert advice if this is considered beneficial to the Client. The Solicitor may receive commission, remuneration or payment for such referral which the Solicitor shall be entitled to accept as payment for charges for any general advice, meetings, administration, postage and telephone calls and support provided in connection with such referral. The Solicitor shall not be obliged to account to the Client for any such payments received.
10. If any matter arises which is outwith the knowledge of the Solicitor or requires specialist advice, outside advice shall be obtained or the Client referred to another Solicitor.
11. The Solicitor will be honest and act with integrity.
12. By accepting these Terms of Business or proceeding with the transaction, the Client appoints the Solicitor to act and agrees to prorogate jurisdiction in respect of matters relating to the Solicitor’s fees to the Sheriff of Tayside, Central and Fife or such other Sheriffdom mutually agreed.
13. The Client before completion of any transaction instructed shall provide the Solicitor with evidence of identity and verification of current address to comply with regulations to prevent money laundering. Furthermore, satisfactory evidence will be provided to verify that funds are provided from a legitimate source, failing which the Solicitor will be entitled to withdraw from acting and recover payment for all work carried out on behalf of the Client to the date of withdrawal. The Client shall produce to the Solicitor acceptable photographic identification (e.g. a driving licence or passport) with a note of the clients National Insurance Number together with evidence of their current address (e.g. Council Tax Demand, Rent Book, gas, telephone or electricity account). In the cases of a limited company the Certificate of Incorporation and any other documents required by the Solicitor shall be produced to the Solicitor. In cases where funds are being provided by a third party for the benefit of the Client it is a requirement of the legislation that the Solicitor is required to verify the identity and address of the third party providing such funds and establish that the funds provided are from a legitimate source and in such cases the client will be responsible for securing such documentation or information required by the Solicitor and accept that any delay or difficulty or loss which may arise due to any failures by the third party to provide the necessary documentation or information shall not be the responsibility of the Solicitor. The Solicitor shall not be obliged to accept payments of cash in excess of £200 without prior agreement. Furthermore the Solicitor is not obliged to accept credit card payments in excess of £2,000. The Solicitor shall, in addition, obtain an independent Anti Money Laundering and Identity Check and the client shall pay a Fee of £10.00 plus VAT in respect thereto.
14. CHARGES and REMUNERATION (see also paragraphs 15, 16, 17, 18 & 19, 20, 23, 24, 26 and 32).
(i) Unless negotiated and agreed in writing and in advance directly with the Solicitor, fees are charged on the basis of time spent on the work, together with an element for responsibility which can vary according to a number of matters, such as urgency, importance of the work to the Client, amount or value of money or property involved, complexity, difficulty or novelty of the matters, length, number or importance of documents or papers. The way the Solicitor calculates charges and fees are set herein or shall be charged in accordance with any agreement with the Solicitor. The Solicitor shall send the Client details of the basis of charge and this will be discussed at the initial interview with the Client. There may occasionally be exceptions to this, when work has to be carried out urgently, or when you the Client is already familiar with the Solicitor’s methods of charging because of other work which the Solicitor has carried out or done for the Client or people associated with the Client.
Where a fixed fee has not been agreed, work will be charged according to the number of units expended by the Solicitor and the Solicitor’s staff. The value of the unit reflects the hourly rate of charge. Time spent charged in units is on the basis that 1 unit is equivalent to 6 minutes. Detailed charges in units for items of work not recorded on a time basis are set out in clause 32, hereto. The unit charge applies until further notice and will be reviewed on 1st January each year. For unusually complex matters or work incurring a high degree of responsibility the unit rate may be increased by up to 50%. For high value transactions a responsibility factor may be charged of up to 0.5% of the capital value or its equivalent.
All fees chargeable under these terms of business will be subject to Value Added Tax at the prevailing rate at the date of performance of any services. Outlays or payments to third parties incurred on behalf of the Client will be charged in addition.
(ii) Any estimate given for fees will be for a probable fee based on the Solicitor’s experience of the general amount of work involved in a typical transaction of the type involved. If the work turns out to be more complex than normal, then the Solicitor’s estimate may require to be amended. The Client will be kept advised of any such changes. Fees are payable, unless by prior arrangement, from funds belonging to the Client that are available to the Solicitor or within 14 days of rendering of the Solicitor’s account, as applicable. The Solicitor will have a lien over title deeds and other papers held on behalf of the Client until payment in full to the Solicitor of all fees and outlays. A lien is the Solicitor’s right to keep all papers, documents, money or other property held on behalf of the Client until all money due to the Solicitor is paid. The Solicitor has that right in accordance with this agreement. A lien may be applied after this agreement ends.
(iii) PRESENTATION OF ACCOUNTS
Where an account is presented to the Client, this will normally be in the form of a fee note indicating the amount of the Solicitor’s fee and the matter to which it relates. If requested by the Client, the Solicitor will give such helpful information as can readily be derived from our records but if the Client insists on a fully itemised account, it will be prepared at the expense of the Client.
Trust and Executry fees will be dealt with in terms of Clause 16.
Where the Solicitor’s note of fee is disputed by the client or where they have agreed to remit the Solicitors charges for independent assessment or adjudication it is agreed that, unless there is a written fee charging agreement (under S61A of the Solicitors (Scotland) Act 1980) in which the actual fee has been agreed, not just the basis on which the fee is to be charged as an hourly rate, the client shall be entitled to refer the Solicitors account for adjudication under the “Legal Fees Determination Scheme” administered by the Law Society of Scotland for the issue of a fee determination certificate. In the event of the Solicitor and the Client seeking a certificate both will be obliged to sign a binding contract with the Law Society of Scotland agreeing to meet the adjudicator’s fee. The adjudicator will have discretion to decide whether the cost of such certificate is to be met by the Solicitor or the client, or both of them and in what proportions. The client agrees that there will be a cancellation fee payable by the parties equally, if a hearing which has been fixed for adjudication is cancelled less than 7 days beforehand. The cancellation fee will be 50% of the normal charge based on the amount of the account as rendered. If the client and the Solicitor wish the adjudication to be based on written submissions the cancellation fee will be payable at the same rate if the request for the certificate is withdrawn more than 14 days after being received by the adjudicator of the Court of Session against the adjudicators decision in the Certificate, but not on a decision to allow or refuse an oral hearing.
In certain circumstances, the Client’s file shall be lodged with an independent official called the Auditor of Court for assessment and adjudication, or “taxation” as it is known. The Auditor of Court will charge a fee for the taxation and this is normally borne by the paying party. Any award of expenses of the taxation is wholly within the discretion of the Auditor.
Taxation is necessary by law and in practice in certain circumstances, such as where the Solicitor acts for a liquidator, Trustee in Bankruptcy, Judicial Factor, Guardian etc.
Where the Client has reached an agreement in writing with the Solicitor as to the fees or charges in respect of any work done, the Solicitor shall not be obliged to concur in any request by the Client for taxation.
(iv) Along with the Solicitor’s fee, the Solicitor will issue a statement detailing financial dealings on the Client’s behalf. This will include outlays which may have been incurred. Where outlays have been incurred, the Solicitor will require repayment of them within seven days of receipt by the Client of a payment request.
(v) The Solicitor may require the Client to settle accounts and repay outlays during the course of transaction. In such a case an interim statement will be issued. Large outlays will require to be paid to the Solicitor before they are due to be paid out by the Solicitor.
(vi) Except by prior arrangement in writing, or if Legal Aid or Legal Advice and Assistance is granted, the fees to be charged by the Solicitor will be charged at the rate per unit of £200 per hour. Where an unqualified assistant or paralegal is carrying out work on behalf of the client the charge shall be at the rate of £100 per hour.
(vii) The Solicitor will hold funds held on behalf of the Client in the Solicitor’s Client Account with the Bank of Scotland plc. Where the Solicitor receives or holds money on behalf of the client no interest will be payable to the client except in the circumstances previously noted. The Solicitor recommends that the Client does not leave large sums of money deposited with the Solicitor unless they are required in connection with the transaction the Solicitor is dealing with, or are payments made to account of anticipated fees or outlays. The Financial Services Compensation Scheme may apply and the current limit of cover is £85,000.00.
(viii) A Bank Transfer or CHAPS payment instructed by the Client or required by contract or a Mortgage Lender shall entitle the Solicitor to recover from the Client a charge of £35 plus VAT, at the standard rate, for each Bank Transfer to cover the Bank charges and Solicitor’s costs.
(ix) The Solicitor shall be entitled to receive commission or interest payments from Banks based on aggregate cash balances held across all Client Accounts and any such commission payments or interest shall be remuneration of the Solicitor and the Client shall not be entitled to a breakdown or details of any such payments received by the Solicitor. The Solicitor shall not be obliged to account to the Client for any net interest received unless the interest is likely to be in excess of £100. The gross rate of interest, prior to deduction of tax, to be paid to the Client for funds invested by the Solicitor on behalf of the Client, shall be 1% below the base rate of the Royal Bank of Scotland or such other rate as shall be notified to the Client from time to time. Furthermore the Client will accept that the Solicitor is entitled to employ individuals or companies to market and promote the Solicitor’s services and the Solicitor shall be entitled to pay administration, consultancy or commission charges to such individuals or companies in respect of marketing and promotion services provided to the Solicitor and the Solicitor shall not be obliged to provide details of any such payments or consultancy fees or details of agreements with such individuals or companies having regard to confidentiality which such agreements may provide. Where commissions or volume commissions are paid to the Solicitor for volume business introduced to third party service providers (e.g. Searching Companies, Surveyors etc.) the Solicitor shall be entitled to such payments without any requirement to account to an individual Client and such payments will be treated as remuneration to the Solicitor with a view to the reduction of administration, postage and practice administration costs.
(x) The Solicitor will issue their account either at the end of a transaction or at intervals. The Client can make payments in advance by direct deposit to our client account, internet banking, standing order, or credit or debit card. Payment is due within fourteen days of the date of account. If the account is not paid within this time, the Solicitor will be entitled to charge interest on the amount overdue at 8% per annum above the current Royal Bank of Scotland Base Rate. If the Client does not pay the Solicitor’s account timeously, the Solicitor reserves the right to stop working for the Client and to charge the Client for the full amount of work the Solicitor has done for the Client.
15. RESIDENTIAL CONVEYANCING TRANSACTION
In each transaction, where appropriate, we will do the following:-
- advise on the financial aspects of the transaction;
- negotiate the “deal” on the most advantageous terms that can be agreed;
- advise on the meaning and effect of the terms of the contract or missives;
- advise on the scope and extent of services provided by Chartered Surveyors;
- instruct and arrange any necessary valuations/surveys at a preferential rate of charge; (to a maximum of three);
- prepare and submit up to three offers;
- examine title and provide you with a report on relevant matters;
- advise you on the advantages/disadvantages of inserting a survivorship destination in the title to be granted in your favour; In conveyancing transactions, no contractual survivorship destinations (otherwise known as special destinations) shall be incorporated in the Client’s title without a written instruction from the Client.
- draft and prepare Affidavit, Declaration, Consent, Renunciation and a Disposition, Standard Security and Discharge and record all necessary documentation;
- order Extracts, copy titles and Local Authority Property Enquiry Certificates;
- draft and prepare Assignation and Retrocession of a life assurance policy and serve formal Notice of Intimation of same;
- intimate change of ownership to the Council Tax Authority;
- obtain Redemption Statement and redeem amount due to holder of first charge. It is the responsibility of the Client to continue all payments due to the lender until the mortgage/secured loan is redeemed (see Clause 21) and any direct debit or standing order should not be cancelled until the lender has confirmed redemption;
- submit Report on Title to lender;
- obtain or inspect Interim Reports in the Sasine, Personal and Charges Register (including Searches in the Computerised Presentment Book) or the Land Register, as appropriate;
- provide detailed Statement of Account and Fee Invoice;
- invest any cleared funds held upon your behalf in accordance with the Accounts Rules of the Law Society of Scotland;
- deal with your reasonable enquiries in connection with the above.
- Obtain a Title Sheet from the Registers of Scotland and a Fee of £10.00 plus VAT shall be due by the client in respect thereto.
We will not however do the following:-
- advise on specific matters of taxation such as Capital Gains Tax or Income tax.
- advise on environmental issues
- An additional fee may be charged where the transaction involves one or more of the following:-
- if more than one loan is secured or to be secured over the property;
- if you or other parties to the transaction are inhibited, sequestrated etc;
- if there are insufficient funds to pay the price or discharge existing loans and debts;
- if the property is affected by a Common Repair Scheme, a Statutory Notice or other Order calling for repairs to the property or the building of which it forms part;
- if the title to the property is not in order;
- if the property is affected by planning or other proposals in the vicinity of the property;
- if the other party to the transaction does not fulfill his or her obligations under the contract;
- if parties with whom we communicate during the ordinary course of the transaction fail to respond within a reasonable period of time;
- if we are involved in work in connection with problems which arise after the date of settlement;
- if we are required to provide advice in respect of the preparation of any Minute of Agreement on joint ownership;
- if the transaction involves bridging finance;
- if the transaction requires an exceptional degree of expedition;
- if we are required to instruct and arrange more than three valuations/surveys;
- if we are required to prepare and submit more than three offers;
- if we prepare the Land and Buildings Transaction Tax Form on your behalf. By signing the draft Land and Buildings Tax Form you hereby authorise us to submit the Land and Buildings Transaction Tax Form following completion of the relevant transaction;
- if the property is affected by technical issues such as timber specialist reports or alterations;
- We require you to meet the outlays which we incur on your behalf as and when these are incurred, and we will advise you accordingly. We reserve the right to deduct all fees and outlays due to us from any balance of funds held by us on your behalf.
- We require settlement of our fee plus VAT and outlays prior to the date of entry unless there are sufficient mortgage funds or sale proceeds from which they will be deducted.
- A fee will be charged for work done upon your behalf. Where the proposed transaction dues not proceed we reserve the right to charge a fee for work done to that point.
- Financial transactions carried out upon your behalf will be effected only when we hold cleared funds. It is our policy to require payment prior to settlement of your own contribution towards the price and any fees and outlays into our firm’s client account by means of CHAPS transfer, or alternatively by means of a cleared Building Society cheque or Bankers’ draft at lease one working day prior to the date of entry. See also Clause 21.
- Where it is necessary in a transaction to submit a Land and Buildings Transaction Tax Return (including Additional Dwelling Supplement) to Revenue Scotland it is a client’s responsibility and not ours to ensure that this Return is completed honestly and accurately and by signing the Return you authorise us to submit same to Revenue Scotland immediately following upon completion of the Transaction and make payment of any tax shown as due from funds you have provided and accept that it has been correctly prepared from information provided by you. Land and Buildings Transaction Tax (including Additional Dwelling Supplement) is a self-assessment tax and it is up to clients to honestly declare their liability.
16. TRUST AND EXECUTRY WORK. The Solicitor’s fee for Executry, Trust and management of financial affairs or related works will, unless a fixed fee is agreed at the outset, be assessed by a professional law accountant who will fix the Solicitor’s reasonable charge based on the hourly rate of the Solicitor and his staff and having regard to the work carried out as provided herein and the additional Executry/Trust Schedule. The fee for assessment or certification of a reasonable fee will be paid by the Client. This will apply unless a fixed fee has been agreed in writing. It is our practice to take an interim fee once Confirmation has been obtained.
17. COURT WORK. Where a Client who is not eligible for or is refused Legal Aid instructs the firm in connection with pursuing or defending civil court proceedings or defending criminal court proceedings the Client will pay an initial payment of £350.00 to the Solicitor to account of their fees and outlays. The Client will then complete a standing order mandate and thereafter will instruct their bank/building society to implement the mandate for further payment to account of the fees and outlays due to the Solicitor. Should the initial payment to account of fees and outlays not be paid when requested or the standing order mandate not be implemented the Solicitor reserves the right to decline instructions from the Client or to cease acting on behalf of the Client. The Client accepts and agrees that any recovery of money or property where Legal Aid has been made available is subject to Legal Aid Board recovery regulations.
18. LEGAL ADVICE & ASSISTANCE IN CIVIL AND CRIMINAL MATTERS. The Client has been advised by the Solicitor that Legal Advice & Assistance may be available to them through the Legal Aid Legislation subject to their financial status. Where the Solicitor is satisfied that the Client is eligible for Advice & Assistance but the Client has declined to accept the Advice & Assistance the Client will be responsible for payment of legal fees and outlays in accordance with the above paragraphs 14, 15 and 16.
Where the Client has been granted Legal Advice & Assistance subject to a contribution, the Solicitor shall be entitled to payment of the contribution before they commence acting. If the Solicitor agrees to accept payment of the contribution by instalments the Solicitor will not commence acting until the first instalment has been paid. Should the Client fail to pay the contribution in full the Solicitor reserves the right to cease acting on behalf of the Client without prejudice to any right to recover the balance of the contribution.
Where the Advice & Assistance expenditure limit has been reached and an application for increase in the limit has been refused by the Scottish Legal Aid Board, the Client acknowledges that should instructions be provided to the Solicitor to carry our further work having been informed of the refusal, the Client is liable to make payment for the further work in accordance with paragraphs 14, 15 and 16.
19. CIVIL LEGAL AID. If the Client requires work to be done in connection with a civil court matter and such work is to be done under the Scottish Legal Aid Board’s special urgency provisions and it has been calculated by the Solicitor that the Client will be likely to have to pay a Legal Aid contribution, the Client must pay such contribution as assessed by the Solicitor, to the Solicitor before commencement of the work.
If Legal Aid is granted the Client accepts that it is their responsibility to inform the Scottish Legal Aid Board of any change in their financial circumstances or change in address. Should Legal Aid be withdrawn the Client accepts that the Solicitor is entitled to withdraw from acting on behalf of the Client should the Client not make an acceptable arrangement with the Solicitor for payment of further fees and outlays to be incurred.
The Client will as soon as possible complete, sign and return to the Solicitor any financial information forms or other documents, which the Solicitor may require to lodge with the Legal Aid Application. The Client acknowledges that failure to do so may prevent Legal Aid being granted.
Any work done under the special urgency provisions or prior to the grant of a Legal Aid Certificate may, if not covered by a Legal Advice & Assistance Certificate, be charged for by the Solicitor in accordance with paragraphs 14, 15, 16 and 17.
20. RECOVERY OF PRINCIPAL SUMS AND EXPENSES IN CIVIL LITIGATION. The Client understands that the Solicitor cannot guarantee recovery of any principal sum or expenses awarded by a Court or other Tribunal in the Client’s favour. The Client understands that if he is awarded expenses against his opponent in any Court action these expenses may not be as much as the fees which the client is liable to pay to the Solicitor. The balance may be taken by the Solicitor out of any payment received on behalf of the Client. If the opponent has Legal Aid the court may refuse to make him pay expenses even if the Client’s case is successful. This paragraph may apply whether the Client receives Legal Aid or is funding the litigation privately. The Client (if not receiving Legal Aid) remains liable to pay the Solicitor’s fees whether or not any sum awarded to him is recovered.
21. PAYMENT OF FUNDS TO SOLICITOR and RELEASE OF FUNDS to CLIENTS In property or commercial transactions or in matters requiring the Solicitor to issue funds or payment to a third party the funds will be provided by the Client to the Solicitor by CHAPS bank transfer one working day prior to the date the funds are required by the Solicitor to ensure that cleared funds are available to the Solicitor. The Solicitor shall, if requested, provide details of the Client account for the transfer of funds. In the event that any payment to the Solicitor is made by BACS transfer or by cheque the BACS transfer or cheque payment shall be paid to the Solicitor no later than 7 working days prior to the date the funds are required by the Solicitor. In the event that cleared funds are not held by the Solicitor, the Solicitor shall not be obliged to make payment to any third party until such time as the funds are received and cleared in the Solicitor’s client account. Settlement of house purchase transactions are normally settled by way of Solicitor’s cheque and although payment is guaranteed under Law Society rules the funds relating to the purchase are required to clear into the Solicitors client account in the usual way and the Solicitor will not hold cleared funds and is unable to release the funds or to redeem a mortgage or other secured loan until such time as the funds are cleared to the Solicitor’s client account. The Client accepts and acknowledges that they will receive within five workings days the proceeds of any sale or remortgage transaction by way of Solicitor’s cheque and that a mortgage or other secured loan will not be redeemed until five working days have elapsed. If the Solicitor holds cleared funds the Solicitor, if requested by the client prior to 12 noon on the date the funds clear, shall transfer the funds to the client by CHAPS subject to the client providing their Bank details and the client agrees to settle any Bank transfer charges in this regard (see paragraph 14 (VIII). In the event that funds are payable to spouses or parties with a joint interest (e.g. joint owners of property) any sums or payment due to such clients will be settled in joint names of the joint owners unless acceptable and satisfactory written instructions are obtained from all clients instructing that the payment is to be payable to one party alone or to a third party. In such cases the funds are the property of the client and the Solicitor is prohibited from making payment to one party without the written consent of the other individuals who have joint title. In commercial transactions the sale price of any property will again be settled by Solicitors cheque unless written instructions are provided to the Solicitor, prior to conclusion of missives, that payment is to be settled by bank transfer. The Solicitor shall not be obliged to complete any property transaction unless the solicitor holds in cleared funds the full purchase price, stamp duty land tax and the Solicitors charges including registration dues for the registration of the clients title and/or security and all other out of pocket expenses incurred by the Solicitor. The Solicitor shall not be obliged to accept any cash payment from or on behalf of a client having regard to the Money Laundering Regulations to which the Solicitor is subject. In cases where the Client instructs payments to a party resident overseas the payment shall be made in the currency appropriate to the recipients residence and the Solicitor shall not be liable for any loss due to exchange rate fluctuations.
22. CONFLICT OF INTEREST. The Solicitor is not entitled to act in a conflict of interest situation. The Solicitor may act for existing clients of this firm and is entitled to act in terms of the Solicitors (Scotland) Practice Rules in appropriate circumstances. However, in these circumstances the Solicitor would not act on behalf of both parties if any conflict of interest or dispute between them was foreseeable. If such a conflict does arise then the Solicitor shall require both parties to seek separate legal advice. This shall be done in the best interests of both parties so as to ensure complete impartiality. In circumstances where the Solicitor acts for more that one client and funds are to be paid to another client of the Solicitor the signing of these terms of business shall be deemed to be written authorisation to the Solicitor to transfer funds between the ledgers of their respective clients where appropriate23. CLIENT FILES AND DOCUMENTS. Any files created by the Solicitor on behalf of the client shall be the property of the Client and shall be retained by the Solicitor. The Solicitor’s drafts and working papers shall be the property of the Solicitor. The Solicitor shall be entitled at any time to convert the file of the Client to a digital or paperless format unless written instructions to the contrary are provided prior to such conversion. Court records or files for general business shall be retained by the Solicitor for a period of Five years from the date of any instruction. Files for transactions comprising a sale or a remortgage of heritable property shall be retained by the Solicitor for a period of Two years only from completion and for files relating to the purchase of heritable property these shall be retained for a period of Ten years. Files for Wills, Trusts and Executry business shall be retained for a period of Ten years. The Solicitor shall be entitled to destroy a file after expiry of the stated periods.
A paper or digital file may be collected by the Client from the Solicitor on the Client giving not less than Fourteen days written notice of their requirement to uplift the file and such file shall be released without charge. In the event that an instruction or Mandate is received from a Client or Agents authorised by mandate to send or post a file in paper or digital format to the Client or any third party an administration fee of £35 plus VAT [or such other charge normally charged by the Solicitor as applicable at the time of such instruction] will be rendered to cover additional time of the Solicitor, administration and postage costs. No files or papers will be released to the client or mandatory without payment in full of any charges for fees and outlays payable to the Solicitor [see also paragraph 14]. The Solicitor reserves the right to make a charge for retrieving stored papers or Deeds in relation to matters which have been concluded based on the time the Solicitor spends on reading papers, writing letters or other work necessary to comply with the Clients additional instructions.
The Solicitor also reserves the right to make a charge to cover the cost of administration and postage if the client asks the Solicitor to send a file of papers or any Deeds or other documents that the Client has left with the Solicitor to the Client or to another firm of solicitors by post.
24. TITLE DEEDS AND WILLS. The Solicitor, at their discretion, may hold Wills and Title Deeds on behalf the Client. No charge shall be provided for such service unless written notification is intimated prior to the commencement of such charge. The release of Wills and Title Deeds to the Client or third parties shall be subject to an administration fee of £35 plus VAT (or such other charge normally charged by the Solicitor at the time of such instructions) with regard to the release of such Wills and Title Deeds. After completion of any title registration application Title deeds subject to a mortgage or security are normally held by a mortgage Lender or their agents in accordance with the terms of any advance or offer of loan although some lenders no longer do so. Prior title deeds may be retained by the Solicitor or destroyed or disposed at the discretion of the Solicitor.
25. CONDUCT OF INVESTMENT BUSINESS. The Solicitor shall not provide the Client with any investment advice. In the event that the Client wishes any investment advice and on the request of the Client the Solicitor shall, on behalf of the Client, obtain the advice of a Specialist Financial Adviser (e.g. a Stockbroker) and then communicate the advice to the Client but shall provide no comment on such advice. The Client accepts that this activity does not fall within the definition of investment advice/management and shall not be deemed to be the advice of the Solicitor and the Client will be responsible for any charges or costs in this regard. If required by Law Society regulations, the Solicitor will issue an incidental Investment Business Terms of Business Letter which will allow the Solicitor to carry out incidental investment business such as the sale of shares and arrangement of Bonds of Caution or Buildings/Home Insurance in executry/guardianship matters.
26. CLIENT’S OBLIGATIONS. The Client shall respond within a reasonable time to any request by the Solicitor for information, documents or instructions which the Solicitor may reasonably require. This is particularly important in conveyancing transactions and court actions where stringent time limits can operate. In the event that the Client fails to provide instructions, information or documents with a reasonable time then the Solicitor shall be entitled to withdraw from acting and seek recovery of any charges to the date of the withdrawal. The Client shall ensure that he communicates regularly with the Solicitor and that he is available to sign Stamp duty land tax returns, security documents, transfer documents and Affidavits required by the Solicitor to effect any instruction. The Solicitor does not accept liability for financial loss due to the Client’s failure to sign such documents.
27. TAX. The Client will be responsible for payment of any Land and Building Transaction Tax in any purchase or Lease transaction at the rate in force at the time of completion of the transaction. The Client, where obliged by law to complete and submit a Land Transaction Return, will provide same without delay, together with all relevant information requested by the Solicitor, to complete the Return. Failure to submit, complete or correct an erroneous Return may result in a penalty and the Solicitor will not be liable for any penalty where any failure to act or complete accurately the Return documents is attributable to the client. If the Solicitor completes any tax form on behalf of the Client, the Solicitor does so on the basis that the Solicitor is assisting the client to complete the form, and it is the Client’s responsibility to check that the information included in the form is complete and correct, before the Client signs such form. The Solicitor shall not provide any Tax advice unless this is specifically agreed in writing and the Client is required to consider the tax consequences of any transaction and, if appropriate, seek advice from an Accountant or Tax advisor and timeously report such advice to the Solicitor if this has a bearing on the work/transaction instructed.
28. GENERAL. The Solicitor holds indemnity insurance in respect of any one claim for negligence/financial loss up to a limit of £2,000,000. The Client accepts that this will be the upper limit for any financial claim against the Solicitor unless prior written agreement has been obtained.
29. MARKETING As part of the Solicitor’s policy of keeping the Clients up to date with relevant news and information the Solicitor may use the details the Client has provided to send marketing material. This may be, but not limited to postal mail shots, telephone calls or electronic mail. If the Client does not wish to receive marketing information from us, the Client should let the Solicitor know in writing. The Client’s details will not be passed to any third party.
30. THE CONSUMER CONTRACTS (INFORMATION CANCELLATION AND ADDITIONAL CHARGES) REGULATIONS 2013 If the Client’s instructions to the Solicitor have not been given at a face to face meeting the Client would generally have the right to cancel those instructions without any cost to the Client within fourteen working days of these instructions being received by the Solicitor. The Client is usually able to cancel the agreement either by delivering a note cancelling your instructions to the Solicitor by sending it by post, fax or email.
The Client may not however cancel the agreement once the Solicitor has, with the Client’s permission, started to do the work on behalf of the Client. The Solicitor’s service to the Client will start immediately upon the Solicitor’s acceptance of the Client’s instructions by telephone, fax, post or email during which time the fourteen day period will not apply.
By signing and returning this document the Client agrees that, to avoid any delay in the transaction, the Solicitor may start work on behalf of the Client straight away and the Solicitor does not have to wait for the cancellation period to expire. If the Client subsequently instructs the Solicitor on another matter, you accept that your right to cancel your instructions under such Regulations will not apply.
31. Detailed charges in units for items of work not recorded on a time basis are set out below:- the following unit charges may be used in any account or for part of an account not recorded on a time basis.
Deeds, documents intended to have contractual effect, court writs (other than simple debt recovery), court pleadings, motions, statements and accounts, inventories (other than inventories of writs) and relative schedules, memorials for opinion are all chargeable at 5 units per sheet (a sheet is 250 words or part thereof).
Where a pro-forma document has been used and variables or standard clauses inserted, the rate for that part of the document will be 3 units per sheet.
Other papers to include transfers, minutes of meeting, statements, routine motions, simple debt recovery court writs will be charged at 3 units per sheet. Intimations and certificates thereof will be charged at 1.25 units.
No charge will be made if the number of copies made in the whole matter is 20 or less. Where the number of copies is more than 20, all copies will be charged at 0.02 units per page.
Time spent will be charged at 12 units per hour. All other time will be charged at 10 units per hour. Units of time are indivisible unless otherwise stated.
Normal letters, faxes and e-mails and letters with cheques will be charged at 1.25 units per page (a ‘page’ is 125 words or part thereof). Formal letters (i.e. acknowledgements/confirmatory letters) and circulars will be charged at 0.50 units. Letters of a similar nature (i.e. the same letter going to several people), for a second and subsequent letter irrespective of length, the rate will be 0.50 units per page.
For the first 6 minutes or part thereof will be 1 unit. Calls of over 6 minutes will be charged on a time basis. Formal telephone calls (acknowledging/confirming) will be charged at 0.50 units.
Recording Writs, completion of Application for Registration Form, presentation of writ, receiving writ or an extract will be charged at 3.25 units.
Quick copies and Extracts where ordered after the date of recording will be charged at 2.25 units (where extracts of several deeds are ordered at the same time 2.25 units will be charged for the first and 1 unit for each of the others). Registers Direct Title Sheet will be charged at £10.00 plus VAT.
Lending/delivering titles and other papers – 2.25 units
Inventory per sheet – 1 unit
Notarial Certificates and attestations and similar acts including notarising court affidavits – 3 units (this fee does not include the drawing or the revising of the documents)
Notarial copies per sheet – 1 unit
Where deeds are revised by us, the fee will be one half of the drawing fee otherwise specified in this schedule.
32. The Solicitor’s aim is to provide an efficient service, but if the Client is unhappy about any aspect of the business conducted, then the client should discuss the Client’s concerns, in the first instance, with the Solicitor dealing with the Client. However, if that would cause the Client difficulty or embarrassment the Client should speak to the supervising partner or any of the partners, whose names appear on the Solicitors notepaper, or the complaints/conciliation partner. If the matter cannot be resolved then the Client is entitled to refer it to the Scottish Legal Complaints Commission, The Stamp Office, 10-14 Waterloo Place, Edinburgh, EH1 3EG www.scottishlegalcomplaints.com. If a complaint is to be made to the Scottish Legal Complaints Commission (hereinafter referred to as SLCC) within 36 months of the service ending, or within 36 months of the date when the client could reasonably have been made aware of the matter. If the client makes a complaint after the 36 months deadline has passed, it is unlikely that the SLCC will be able to consider the complaint unless there are exceptional circumstances.
33. ALTERNATIVE DISPUTE RESOLUTION (ADR) 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 this firm you should contact the firm’s Client Relations Manager.
34. THE EU ODR Regulation 524/2013 may apply to specific client transactions. In the event of a complaint arising then the complaints/conciliation Partner should be contacted and the client can refer the complaint to the EU DDR Platform at htt;://ec.europa.eu/consumers/odr
These terms of business shall be binding for instructions provided prior to their issue or for any reason the Client fails to return these terms of business after issue by the Solicitor and the Client fails to intimate that these terms and conditions are unacceptable and the instruction to the Solicitor is terminated in writing.
TERMS OF BUSINESS
(Version 29th May 2018)
BAIRD & COMPANY LAWYERS & ESTATE AGENTS LLP
TEL: 01592 759555
I/We acknowledge receipt, understand and accept the attached terms of business.
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