Terms of Business

1. Our Contract:

1.1         Extent

These terms of business of Tolhurst Fisher LLP, as supplemented and/or amended by any relevant Engagement Letter, apply to each Matter we work on for you.

1.2         Variation

No variation of these terms shall be effective unless it is in writing and is signed by one of our Partners.

2. Our Authority and Services:

2.1         Our Authority

2.1.1      You give us full authority to act for you to the fullest extent necessary or desirable to provide the Services. In particular, we may engage barristers and other third parties and otherwise incur on your behalf reasonable expenses of a type which it is necessary or desirable to incur in relation to the Services in question.

2.1.2    If we so require you will contract directly with any third party so engaged by us and assume direct responsibility to them for the payment of their fees and expenses.

2.2         Our Services

2.2.1      The Partner at Tolhurst Fisher LLP named in the Engagement Letter as the “Client Partner” will be the Partner primarily responsible for the provision of the Services. That Partner has complete discretion to deploy such of our lawyers, trainee lawyers, paralegals or other staff as she/he deems necessary or desirable to ensure appropriate delivery of the Services.

2.2.2      We only advise on the laws of England and Wales. If you require advice on the laws of other jurisdictions, we will, with your agreement, instruct lawyers practicing those laws to give such advice, on the same basis as we engage other third parties on your behalf.

3. Your Responsibilities:

You will (so far as you practicably can):

3.1.1      provide us with timely instructions, information and materials necessary or desirable for us to perform the Services for you;

3.1.2      notify us promptly of any changes or additions to instructions, information and materials previously provided by you or on your behalf; and ensure that all information provided to us is complete in all material respects and not misleading.

4. Fees, Expenses and Client Money:

4.1         General

4.1.1      Unless otherwise agreed in the Engagement Letter, our fees will be calculated principally by reference to the time spent by us in providing the Services;

4.1.1.1  at the standard hourly rates applicable to the relevant staff; and

4.1.1.2  shall be recorded in six minute units and each letter, email, telephone call or other activity is counted as a minimum of one unit. Any part-unit of time spent will be rounded up to the next whole unit.

4.1.2      We may, in accordance with professional guidelines, also charge a premium where reasonable to do so to take account of the nature, complexity, value and urgency of the Services and other criteria specified in those guidelines.

4.1.3      The standard hourly rates of each of our lawyers, legal executives, trainee lawyers, and other staff are reviewed from time to time and we will inform you of any changes upon request.

4.1.4      You will pay the expenses we incur in the course of providing the Services (including travel and subsistence expenses, search and filing fees, court fees and barristers’, foreign lawyers’ and other third parties’ fees and expenses). You will also be liable to pay for Internally Provided Services at our prevailing rates and detailed in a schedule available on request. References to “expenses” in these terms of business include Internally Provided Services.

4.1.5      VAT will be charged at the appropriate rate on all fees and expenses.

4.2         Our Bank Details and Cyber fraud

4.2.1      The most efficient way for you to pay money to us is by direct transfer to our Client Account No 00476801 at Lloyds Bank Plc Sort Code 30-97-84, and please ask your bank to quote our matter reference number when sending funds to us.

4.2.3      You must telephone us before sending any money in order to verify our bank account details.

4.2.4      Unfortunately, these days all businesses and individuals are at risk of cyber fraud where sophisticated fraudsters will send bogus emails to clients and others containing their own bank account details in order to unlawfully divert funds to them.

4.2.5      Fraudsters are also able to change emails from clients to us, and alter account details in the same way.  On occasions we will ask you to verify your account details by telephone to avoid this risk.

4.2.6      Our bank account details will not change during the course of a Matter and if you receive what appears to be an email from us notifying you of a change, then you must not act on it as it will not have been sent by us.  Please telephone us immediately if you receive such an email.

4.2.7      We do not accept any responsibility for monies transferred to an incorrect account.

4.3         Payments on Account

4.3.1     We may require you to make a payment to us on account of our fees and expenses at any time and on more than one occasion. Money paid on account which is not subsequently required for fees and expenses will be returned promptly.

4.3.2      We are not obliged to credit payments on account against interim invoices but may do so if you fail to make prompt payment.

4.4         Quotations and Estimates

4.4.1      The provision of figures (orally or in writing) from time to time for the likely cost of a piece of work is an estimate only and does not constitute a contract to carry out the work at that cost.

4.4.2      The provision of a written quotation for work constitutes an offer to carry out the work at that cost and does not become a contract until you accept the quotation or a defined part of it.

4.4.3      Unless stated in writing to the contrary, any quotation or estimate does not include any expenses or VAT.

4.4.4      Where we carry out work which falls outside the scope of an accepted quotation (or of an estimate which is subsequently incorporated into a contract between us) we may charge fees at our standard hourly rates, in addition to the quoted or estimated fee. We may also charge additional fees on the same basis for work within the scope of such a quotation or estimate which is made more time-consuming, onerous or urgent as a result of:

4.4.4.1  Circumstances or information which we did not know or could not reasonably have anticipated at the time of the quotation or estimate (whether or not you were aware of them/it); or

4.4.4.2  Your, or your agents’, acts or omissions.

4.5         Custody of Client Money

4.5.1      If we hold money on your behalf, we will place it in a bank account designated for clients’ money (‘client account’). An amount in lieu of interest will be credited on your funds held in our client account where the amount calculated is over £100. We normally calculate interest by reference to 1/4% below the rate of interest given to us on our client account which includes our administration costs.

4.5.2    There is a facility to open designated accounts which can offer better rates, but these are subject to a minimum of £250k and have notice periods.

4.5.3     If for any reason you wish to ‘opt out’ of any interest being payable on a matter or range of matters please ensure this is made clear and in writing to us when accepting our terms and conditions.

4.5.4      Tolhurst Fisher LLP’s main bankers are Lloyds Bank Group. Should you suffer loss of money held in our client account due to failure of any bank it is unlikely that we will be liable for that loss.

4.6         Commissions

If we receive a commission from a third party arising from work we are doing for you, we will credit you with that commission unless you have agreed otherwise.

4.7         Conveyancing Additional Fees

Supplements

Additional Fees

5. Our Invoices:

5.1         Frequency of Invoices

5.1.1    Unless otherwise agreed in the Engagement Letter, we will be entitled to invoice you in respect of our fees and expenses monthly, on completion of each Matter or upon a Matter becoming abortive. At the end of our financial year we shall be entitled to bring up to date our invoicing in respect of all your then unbilled work.

5.1.2      Unless otherwise stated, monthly or other interim invoices are a final account of our fees for all work done during the period to which they relate. You agree that we may bring proceedings on interim invoices which are not final bills where we have provided the Services and the amount of the invoice does not exceed the cost of the Services provided at the applicable hourly rates.

5.1.3    There may be a delay in invoicing expenses incurred on your behalf pending our receipt of the relevant invoices from suppliers and invoices are not a final invoice in relation to expenses.

5.1.4     Should a Matter become abortive, then we will render an invoice of our costs based calculated principally by reference to the time spent by us in providing the Services at the standard hourly rates applicable to the relevant staff and any disbursements incurred.  Those costs and disbursements will not, in any event, exceed the initial estimate, or any increase in that estimate that has been confirmed to you.

5.2         Payment Terms

You will pay our invoices within the Credit Period in the currency in which they are expressed, without any deduction, set off or counterclaim. We may charge interest on sums outstanding from the end of the Credit Period until the date of payment. The rate we will apply is the same rate as that which applies from time to time to judgment debts under the Judgments Act 1838.

5.3         Suspension of Services

If you do not pay any invoice by the end of the Credit Period, or a sum on account within seven days (or such longer period as we may specify) of our demand, we may suspend or terminate the provision of all or any Services (and instruct any third parties engaged by us to suspend the provision of their services) and may invoice you for all accrued fees and expenses.

5.4         Third Party Payments

In some circumstances, you may have a right of recovery or indemnity against a third party in respect of all or part of our invoices, but we are not permitted to issue a VAT invoice to any person other than you in any circumstances. You remain liable to us to pay our invoices notwithstanding such a right.

5.5         Right to Retain Money, Documents and Property

As a contractual right, in addition to any right to retain money, Documents and property available to us under the general law (lien), we have the right to retain your money, Documents and property (whether held in relation to the Services for which payment has not been made or any other Services) until you have paid us in full.

6. Conflict of Interest:

6.1         Definition

“Conflict of Interest” means any situation where:

6.1.1      we owe (or, if we accepted your instructions, would owe) separate duties to act in the best interests of two or more clients in relation to the same or a related Matter, and those duties conflict, or there is a significant risk that those duties may conflict; or

6.1.2      our duty to act in your best interests in relation to a Matter conflicts, or there is a significant risk that it may conflict, with our own interests in relation to that or a related Matter; or

6.1.3    we have confidential information in relation to a client or former client, and you wish to instruct us on a matter where that information might reasonably be expected to be material; and

6.1.4      You have an interest adverse to our other client or former client, and for the purposes of this paragraph “you” does not include Associated Entities.

 6.2        Similar Activities

Subject to paragraph 6.3, we may act for parties engaged in activities similar to or competitive with yours.

 6.3        Third Parties

Subject to paragraph 6.5, once we have agreed to act for you in relation to a Matter we will not act for a third party in relation to the same Matter if there is a Conflict of Interest between that third party’s interests and your interests.

6.4         Instructions Creating a Conflict of Interest

We may decline to act for you where accepting your instructions would create a Conflict of Interest or cause us to break an existing agreement with a third party.

6.5         Consent

Where our professional rules allow, and subject to satisfying the requirements of those rules (for example by implementing an information barrier), we may act for you and another client where a Conflict of Interest would otherwise exist provided that we have the consent of both parties. We do not require your consent to act against an Associated Entity.

 6.6        Cessation of Services

If, whether through a change in circumstances or otherwise, we find that we have agreed to provide Services to you in circumstances which give, or could give, rise to a conflict of interest we will discuss with you how to deal with the conflict and may, except as provided in paragraph 6.5, be obliged to stop providing Services to you and/or to all other clients affected by the Conflict of Interest.

7. Information and Confidentiality:

 7.1       Information about You

7.1.1    We may use the information which you provide, or which we obtain through our dealings with you, for the provision of Services and may give it on a confidential basis to our Partners, employees and agents. We may use it to administer your account with us, including tracing and collecting any debts.

7.1.2    We are a registered data controller under the Data Protection Act 1998.

7.1.3      We may also use it to ensure the safety and security of our premises (where we may also use CCTV); for fraud prevention purposes (including verification checks for our money laundering obligations); to assess client satisfaction (such as by asking you to participate in surveys); and to help improve our services generally.

7.1.4      We may also use it to contact you by letter, telephone, e-mail or otherwise about our services and about events such as seminars and conferences and to send you briefings and similar material. By signing and returning a copy of any Engagement Letter you are agreeing that we may use your contact details and information in this way. If you do not wish to be contacted, please tick the box provided before returning the copy of the Engagement Letter.

7.2         Our Duty of Confidentiality

7.2.1      We will treat any information which is confidential to you and which we obtain as a result of acting for you as strictly confidential, save:

7.2.1.1 for the purpose of acting for you; or

7.2.1.2  for disclosures to our accountants, auditors or other advisers or for the purposes of our professional indemnity insurance; or

7.2.1.3  as otherwise required by law or other regulatory authority to which we are subject.

7.2.2      We may refer publicly to your name as a client of ours, provided we do not disclose any information which is confidential to you.

7.2.3      We shall be under no duty to disclose to you (or take into account in the course of providing the Services) any information acquired by us in acting for any other client or any information in respect of which we owe a duty of confidentiality to a third party.

7.3         Your Duty of Confidentiality

7.3.1      Our advice and other communications with you are confidential and may not, without our consent, be disclosed by you to any third party (other than to your employees and agents who require access and who do not disclose it further) or otherwise made public except as required by law or other regulatory authority to which you are subject.

7.3.2      If, as a result of our acting for you, you acquire any information in respect of which we notify you that we owe a duty of confidentiality to a third party, you will keep it confidential and not use it without our consent.

8. Custody, Retention and Transfer of Documents:

8.1         We will, at your request, either during the provision or after completion of any Services, release to you or to your order Your Documents and Documents Held For You, provided that we are not at the time exercising our right to retain documents pending payment of outstanding fees and expenses or are prevented by any court order, undertaking or other legal constraint from doing so. We may copy all of Your Documents and Documents Held For You before releasing them.

8.2         We may at any time scan, microfilm, or otherwise make electronic copies or images of any Documents (other than Documents held in safe custody), destroy the originals and thereafter hold the Documents only in such copy or image form. Unless expressly agreed otherwise in writing we will keep all Documents whether in original, copy or imaged form for a minimum of 6 years, after which we may destroy them and any copies or images of them.

8.3         We may agree to store title deeds, wills and other especially valuable documents in safe custody for you if you require and, if we do, we will not, without your consent, destroy any such documents.

8.4         We do not accept responsibility for the loss or damage of any item which we hold on your behalf unless we expressly agree in writing to the contrary.

9. Intellectual Property Rights:

9.1.        Copyright

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-sublicensable licence to use such documents or other works solely for the Matter to which the Services of developing or generating them relate and not otherwise. If you do not pay us in full for our Services in relation to that Matter in accordance with paragraph 5.2 we may, on giving you notice, revoke that licence and only re-grant it to you once full payment has been made.

9.2         Opinions from Barristers and other Third Parties

9.2.1      We may retain, for our subsequent use, a copy of the advice or opinion of any barrister or other third party given in written form (or any note of any advice or opinion) obtained in the course of providing the Services. Any barrister or other third party will be instructed on the basis that any such advice or opinion will be so retained.

9.2.2      If we retain a copy of any advice or opinion in this manner we will take all reasonable steps to conceal information (such as names, addresses or descriptions) which might reasonably enable you to be identified.

10. Joint Instructions:

10.1       Where we agree to work on a Matter for more than one client jointly, the rights and obligations of the joint clients to us in relation to the Services will be several (save for obligations to pay money to us, which will be joint and several).

10.2      Each joint client irrevocably permits us to disclose to any other of the joint clients at any time any information which we would otherwise be prohibited from so disclosing by virtue of our duty of confidentiality. If any joint client ends this permission during the provision of the relevant Services, or if a Conflict of Interest otherwise arises between joint clients, we may suspend or terminate the provision of Services related to that Matter to one or more of the joint clients.

10.3       If any joint client asks us to transfer documents we will deliver Your Documents to, or to the order of, the joint client who delivered them to us. We will retain any Documents Held For You and will supply copies to each joint client, making the originals available at one of our offices for inspection by any joint client on reasonable prior written notice.

11. Liability

11.1       Duty of Care

11.1.1    We will use reasonable skill and care in the provision of the Services. Where we make an assessment for you, either expressly or by implication, of the likely level of risk associated with different potential courses of action, you accept that such assessment is made relying only upon the information and documents then available to us and cannot, therefore, be definitive.

11.1.2    Accordingly, such an assessment should only be used as one element in the making of any practical or commercial decision. You accept that the magnitude or acceptability of a risk is a matter for you.

11.2       Third Parties

11.2.1    The Services are provided to and for the benefit of you as our client and you alone. No other person may use or rely upon the Services nor derive any rights or benefits from them. The provisions of the Contracts (Rights of Third Parties) Act 1999 are to that extent excluded.

11.2.2    Tolhurst Fisher LLP alone will provide the Services and you agree that you will not bring any claim whether in contract, tort, under statute or otherwise against any Partner, or any consultant to, or employee or agent of Tolhurst Fisher LLP or any service company owned or controlled by or on behalf of any of the Partners and those Partners, consultants, employees and agents shall be entitled to rely on the terms of this agreement insofar as they limit their liability.

11.3       Drafts

Where we provide draft or provisional advice or other materials, that advice or those materials are not to be relied upon as constituting our final view.

11.4       Current Law

The Services are provided in accordance with professional practice requirements and the proper interpretation of the law, as each exists on the date on which the relevant Service is provided. If there is any change in such requirements or the law, or their interpretation, after the relevant Matter has been concluded (or before that time but which could not reasonably be known by us at that time), we have no responsibility to notify you of, or of the consequences of, the change.

11.5       Communication

11.5.1    We shall communicate with you at the postal and email addresses and the telephone and fax numbers which you publish unless you ask us to use other addresses and numbers. You will notify us if you regard any communications from us as particularly confidential and the means by which you require us to make such communications and we shall have no liability to you arising out of your failure so to notify us.

11.5.2    Subject to any notification you may make to us under the previous paragraph, we shall not be required to encrypt, password-protect or digitally sign any e-mail, or attachment, sent by us. We shall not be responsible for any loss or damage arising from the unauthorised interception, re­direction, copying or reading of e-mails, including any attachments.

11.5.3    We shall not be responsible for the effect on any hardware or software (or any loss or damage arising from any such effect) of any e-mails or attachment which may be transmitted by us (save to the extent caused by our negligence or wilful default).

11.6       Deadlines

We will try to meet any deadline we agree with you for the performance of any Services but, unless we agree otherwise in writing in relation to any time, date or period for delivery or performance by us, time shall not be of the essence.

11.7       Limit of Instructions

The extent of your instructions, and the work we will undertake, is limited to the legal aspects of the Matter.  We will not be advising you on any non-legal aspects of it, nor on any insolvency, regulatory, accounting, tax or commercial matters, nor the commercial benefit, merits  or otherwise of the Matter.

12. Proportionate Liability:

If you accept or have accepted any express exclusion and/or limitation of liability from any of your other professional advisers, our total liability to you arising out of the Services will not exceed the net aggregate of the amount for which we would otherwise have been liable after deducting any amount which we would have been entitled to recover from such adviser as a matter of law whether pursuant to statute or otherwise, but are prevented from doing so as a result of any such exclusion and/or limitation of liability.

13. Exclusion:

We shall not be liable for:

13.1       any loss, damage, cost or expense arising from any breach by you of your agreement with us or any act or omission of any other person; or

13.2       any advice or document subject to the laws of a jurisdiction outside England and Wales; or

13.3       any advice or opinion given to you by any third party (whether or not nominated or recommended by us)

14. Loss of Profit:

We shall not be liable for any indirect loss or damage or any loss of profit, income, production or accruals arising in any circumstances whatsoever, whether in contract, tort, under statute or otherwise, and howsoever caused (including but not limited to our negligence or non-performance).

15. Limitation:

The aggregate liability of Tolhurst Fisher LLP and any service company owned or controlled by or on behalf of any of the Partners, and of all Partners, consultants to and employees and agents of Tolhurst Fisher LLP and any service company owned or controlled by or on behalf of any of Tolhurst Fisher LLP or the Partners in any circumstances whatsoever, whether in contract, tort, under statute or otherwise, and howsoever caused (including but not limited to our negligence or non-performance), for loss or damage arising from or in connection with the Services provided shall, in relation to each Matter, be limited to the sum specified in the Engagement Letter, or, if no sum is specified, the sum of £3 million.

16. Exceptions:

Nothing in this agreement exempts us from liability arising from our fraud or reckless disregard of our professional obligations; or from our negligence resulting in death or personal injury; or where, in the case of a contentious business agreement, law or regulation prohibits the exclusion of such liability.

17. Termination:

17.1       Completion of Services

Any agreement between you and us for the provision of defined Services ends on the completion of the provision of those Services. An open-ended agreement for the provision of Services ends six months after the last date on which we provided Services to you. Unless new or different terms are agreed, our acceptance of instructions to perform Services for you subsequent to the ending of any agreement gives rise, from the time of acceptance of the instructions, to a new agreement on these terms. If we provide you free of charge with any seminar, information, or other document after the ending of an agreement such provision does not give rise to a new agreement.

17.2       Early Termination

17.2.1    Either you or we may terminate the provision of all or any of the relevant Services at any time by giving written notice to the other. We will not do this without good and substantial reason, such as:

17.2.1.1The threat or risk of violence, injury or other danger to the physical, psychological or moral   well-being of any of our personnel; or

17.2.1.2 The discovery or creation of a Conflict of Interest; or

17.2.1.3 Your requesting us to break the law or any professional requirement; or

17.2.1.4 The relationship of trust and confidence necessary between solicitor and client ceasing to  exist between us; or

17.2.1.5 Your failure to pay to us any amount due, or money on account requested; or

17.2.1.6 Your insolvency; or

17.2.1.7 Your failure to give us adequate instructions; or

17.2.1.8 Our being forbidden to act by the Serious Organised Crime Agency; or

17.2.1.9 Our reasonable belief that our continuing to represent you may cause damage to the professional or personal reputation of our firm or any of its personnel; or

17.2.1.10  Any other breach by you of these terms.

17.3       Rights on Early Termination

17.3.1    On early termination, by either you or us, you will remain liable to pay all fees and expenses incurred before termination and due under our contract or due on the basis of the time spent at our usual hourly rates, whichever is the less, together with any further fees and expenses for work necessary to transfer our files to another adviser of your choice.

17.3.2   All our rights set out in these terms shall continue to apply even if we terminate the agreement.

18. General

18.1       Financial Services and Insurance Mediation

18.1.1    When we provide Services to you we are acting as your legal adviser. We are not authorised by the Financial Services Authority under the Financial Services and Markets Act 2000. Where we provide Services to you in relation to a Matter which involves or relates to an investment, those Services may involve us in carrying on regulated investment activities. We can undertake those activities, but only on a limited basis where an exemption to that Act applies, including where those activities are closely linked to legal work we do for you.

18.1.2    Nothing that we say or do should be taken as advice on the merits of any investment activity (whether under the Financial Services and Markets Act 2000 or otherwise). No communication from us will constitute or should be regarded as an invitation or inducement to engage in any investment transaction or other activity or to exercise any rights conferred by any investment. You are solely responsible for any decision you take to negotiate or enter into a proposed transaction and should do so based on your own assessment of its merits and risks. If you are in doubt over any of these matters you should seek advice from an appropriately qualified financial adviser. We are not authorised by the Financial Services Authority. However, we are included on the register maintained by the Financial Services Authority so that we can carry on insurance mediation activity, which is broadly the advising on, selling and administration of insurance contracts. This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by the Solicitors Regulation Authority. The register can be accessed via the Financial Services Authority website at www.fsa.gov.uk.

18.1.3    The Law Society is a designated professional body for the purposes of the Financial Services and Markets Act 2000, but responsibility for regulation and complaints handling has been separated from the Law Society’s representative functions. The Solicitors Regulation Authority is the independent regulatory body of the Law Society and the Legal Ombudsman is the independent complaints-handling body of the Law Society. If you are unhappy with any investment advice you receive from us you should contact either of those bodies.

18.2       The Proceeds of Crime Act 2002

18.2.1    We may require you to provide evidence of your identity or the identity of other connected parties so that we may comply with our obligations under the Proceeds of Crime Act 2002 (POCA).

18.2.2    Under the provisions of POCA, we may be required to make a report to the relevant authorities if at any time we become aware of or suspect (whether from you or any other person) the existence of the proceeds of crime in relation to any Services on which we are engaged. Our obligation to make such a report will, in certain circumstances, override our duty of solicitor/client confidentiality and we may not be permitted to inform you whether or not we have made, or might intend to make, such a report.

18.2.3    We may terminate the provision of any Services to you, or be instructed to do so by the relevant authorities, if you fail to comply with your obligation to provide evidence of identity or we suspect that you or any other party connected with you or with the Matter is involved in activities proscribed by POCA.

18.3       Force Majeure

18.3.1    Neither you nor we shall be liable for any failure to perform, or delay in performing, any obligations (other than payment and indemnity obligations) if and to the extent that the failure or delay is caused by Force Majeure and the time for performance of the obligation, the performance of which is affected by Force Majeure, shall be extended accordingly.

18.3.2    If the party claiming relief under this paragraph is prevented by Force Majeure from wholly or substantially performing its obligations under any agreement for a continuous period of more than 28 days the other party shall be entitled to terminate that agreement immediately by notice to the party claiming relief under this paragraph. Neither party shall be liable to the other because of such termination but you shall remain liable to pay all fees and expenses incurred before termination as provided in paragraph 17.3.

18.4       Severability

Each of these terms shall be severable and distinct from the others and if any term is held to be illegal, invalid or unenforceable, in whole or in part, the remaining terms shall not be affected.

18.5       Equal Treatment

Consistent with our internal policies and procedures, we will not discriminate in the way we provide our Services on the grounds of race, colour, religion, nationality, ethnic origin, sexual orientation, gender, age, disability or marital status.

19. Complaints Procedure:

19.1       Scope

Subject to paragraph 19.3, all claims, complaints and disputes arising out of or in connection with the Services (“Complaint”) will be resolved pursuant to this paragraph.

19.2       Procedure

19.2.1    All Complaints will in the first instance be referred to the Client Partner named in the Engagement Letter who will attempt to resolve the issue promptly.

19.2.2   If the Client Partner is unable to resolve the Complaint or if you feel unable to discuss the Complaint with the Client Partner, we will, on your request, appoint a Partner not previously involved in the matter to endeavour to resolve it with you. In the first instance you should contact Nigel Holdcroft who is our nominated complaints partner or, if this is not appropriate, Charles Latham our senior partner.

19.2.3   If we have been unable to settle any complaint using our internal complaints process, you have a right to complain to the Legal Ombudsman, an independent complaints body, established under the Legal Services Act 2007, that deals with legal services complaints. The Legal Ombudsman expects complaints to be made to them within one year of the date of the act or omission about which you are concerned or within a year of you realising there was a concern. However please note that the Legal Ombudsman also requires you to refer your concerns to them within six months of our final response to you. Alternative complaints bodies exist which are competent to deal with complaints about legal services should both you and our firm wish to use such a scheme and on request we are happy to provide details of these bodies and discuss whether, in the circumstances of any particular complaint, they are appropriate.

19.3       Mediation

As a further alternative if and to the extent that any complaint has not been resolved under Paragraph 19.2 it may be referred to mediation by a sole mediator agreed between us and you or, in default of agreement, appointed by The Centre for Effective Dispute Resolution.

19.4       Exclusions

19.4.1    We shall not be obliged to comply with paragraph 19.3 in relation to any Complaint in which we seek:

19.4.1.1 an order or award (whether interim or final) restraining you from doing any act or  compelling you to do any act; or

19.4.1.2 a judgment or award for a liquidated sum to which there is no arguable defence (provided that the exception shall cease to apply and the Complaint may be referred to arbitration on the application of either party if the court decides that you should have permission to defend the claim); or

19.4.1.3 the enforcement of any agreement reached or any binding order, award, determination or decision made pursuant to paragraph 19;

19.4.1.4 nor shall anything in this paragraph inhibit us at any time from serving any form of demand or notice or from commencing or continuing with any bankruptcy, winding up or other insolvency proceedings.

19.5       Referral to Regulator

If, having followed the procedure set out in paragraphs 19.2 and 19.3, you are not satisfied that the Complaint has been resolved, you may refer the Complaint to the body or bodies for the time being charged with the regulation of solicitors. As of the 6th October 2010, the Law Society has delegated responsibility for handling complaints about solicitors including, where appropriate, complaints about an invoice to the Legal Ombudsman whose contact details are set out below.

Legal Ombudsman

PO Box 6806

Wolverhampton WV1 9WJ

Tel: 0300 555 0333

e-mail: enquiries@legalombudsman.org.uk

Web: legalombudsman.org.uk

There may also be a right to object to an invoice by applying to the court for an assessment of the invoice under Part III of the Solicitors Act 1974.

20. Law and Jurisdiction:

The terms on which we provide Services to you are governed by and shall be construed in accordance with English law. You and we each agree to submit to the exclusive jurisdiction of the English courts, provided that we may in our sole and unfettered discretion commence proceedings against you in any other court.

21. Provisions relating to Litigation and other work in relation to disputes:

This paragraph contains further contractual provisions and important information which we are professionally obliged to give you where the Matter relates to litigation or the resolution of disputes by other means (including a non-contentious Matter which becomes contentious, or gives rise to further instructions on a contentious Matter).

21.1       Costs Risk

In litigation, the Court may decide to order one party to pay the costs of the other. The Court usually orders the unsuccessful party to pay all or a part of the successful party’s costs although there is no certainty about this. The successful party usually recovers a proportion of its costs from the unsuccessful party although there is no certainty about this. You should be aware that:

21.1.1    If you make an interim application to Court which does not succeed you may have to pay the other side’s costs, usually within two weeks

21.1.2    If you lose the case you will have to pay the other side’s costs and it is not usually possible for you to withdraw from the case without dealing with the issue of those costs

21.1.3    Costs awarded have to be proportionate to the value of the dispute and, in the ordinary course, recovered costs rarely exceed 60-70% of actual expenditure

21.1.4    You will still be liable to pay our invoices in full even if the other party fails to pay the costs awarded to you by the Court

21.1.5    Issues which the Court may take into account in assessing the costs payable or recoverable include:

21.1.5.1 Efforts made before and during the proceedings to try to resolve the dispute, including the appropriate use of mediation and other alternative dispute resolution procedures.

21.1.5.2 The effects of payments into court and offers of settlement;

21.1.5.3  The complexity and size of the Matter and the difficulty or novelty of the questions raised;

21.1.5.4  The skill, effort, specialised knowledge and responsibility involved;

21.1.5.5 The time spent;

21.1.5.6 The place and circumstances in which the work was done.

21.1.6   If the other side is or becomes legally aided it is highly unlikely that you will recover your costs even if you are successful.

21.1.7    If you are unsuccessful, or the court so orders for some other reason, you may be ordered to pay the other side’s costs. We will discuss with you whether the likely outcome will justify the expense/risk.

21.2       Funding

21.2.1    Legal expenses insurance may be included in your contracts of insurance and you should check your policies to see if you are covered. Your policy may cover your costs and/or your liability to pay the other side’s costs. If you believe you are covered, please discuss this with us so that we can assist you in notifying your insurer. If you do not have legal expenses insurance, you may be able to purchase insurance to cover you in the event that you have to pay the other side’s costs.

21.2.2  A conditional fee agreement is an agreement whereby we would be entitled to charge you an increased fee if you were successful, and would charge you no fee or a reduced fee if you were not successful. You might be able to take out an insurance policy to cover you in the event that you were ordered to pay the other side’s costs. You would usually be able to recover this insurance premium and any sums you paid to us from the other side if you were successful. Not all Matters are suitable for this type of conditional fee arrangement but we are happy to discuss this further with you at your request.

22. Defined Terms:

In these terms of business:

“Tolhurst Fisher LLP” means Tolhurst Fisher LLP a limited liability partnership incorporated in England & Wales with registered number OC326898 whose registered office is at Trafalgar House, 8-10 Nelson Street, Southend on Sea, Essex SS1 1EF and any successor practice and any service company owned or controlled by or on behalf of Tolhurst Fisher LLP or any of the Partners;

“Associated Entity” means (where you are a body corporate) your shareholders, directors (as individuals not acting together as the board), officers and employees, subsidiaries, parent company, and subsidiaries of a parent company, and (where you are a trade association) your individual members;

“Credit Period” means the period of seven days from the date of our invoice for our fees and/or expenses;

“Documents” means Documents Held for You, Our Documents and Your Documents;

“Documents Held For You” means documents we create or receive on your behalf (including communications from or with third parties, notes of conversations and meetings, draft and final documents, and instructions to and opinions of barristers);

“Engagement Letter” means, in relation to any Matter, the letter (or other agreement) recording the basis of our engagement;

“Force Majeure” means any circumstance beyond the reasonable control of the party affected by it and includes telecommunications failure, power supply failure, terrorism, fuel strikes, severe weather, computer breakdown, failure of suppliers to meet delivery requirements, industrial disputes and absence of personnel due to illness or injury.

“Internally Provided Services” means ancillary services (including, but not limited to photocopying, document scanning and catering) supplied by us for which you will be liable to pay. A list of Internally Provided Services and our current charges in respect of them is available on request.

“Matter” means any specific transaction, dispute or issue in relation to which you ask us to provide Services whether or not it has been defined in an Engagement Letter or other agreement;

“Our Documents” means documents (other than Documents Held for You) which we create or receive for our benefit (including copies of our letters to you, your letters to us, notes of telephone conversations and meetings with you for which we have not charged you, and our preliminary drafts, research materials and internal notes);

“Partner” means a member of Tolhurst Fisher LLP. We use the word ‘Partner’ to refer to a member of Tolhurst Fisher LLP or to a non member who is an employee or consultant with equivalent standing and qualifications. This should not be construed as indicating that the Partners of Tolhurst Fisher LLP are carrying on business in partnership for the purpose of the Partnership Act 1890. A list of members and non members designated as Partners is available for inspection at the firm’s registered office;

“Services” means all services we provide to you in relation to the relevant Matter;

“We”, “us”, and “our”, means or refers to Tolhurst Fisher LLP;

“Your Documents” means documents which you give or lend to us to enable us to provide Services;

“You” includes the addressee of the relevant Engagement Letter and any other person identified in the Engagement Letter as our client and “your” shall have a cognate meaning.