FITZGIBBONS & COMPANY LIMITED
TERMS AND CONDITIONS OF BUSINESS
1) DEFINITIONS AND INTERPRETATION
a) Company means Fitzgibbons & Company Limited, or its agents or third parties instructed by it to act on its behalf in the provision of legal services. “We”, “us” and “our” refers to the Company.
b) Client means a person who contracts with the Company for the provision of legal services and may include the client’s partner, spouse or civil partner. “You”, “your” and “yours” refers to the Client.
c) The Document(s) means Wills, Powers of Attorneys, Trusts and advice as to your options and/or any other legal documents dealing with assets and affairs that we prepare and draft for you, upon your instructions to do so.
d) Legal Services means the drafting and/or execution of legal Documents and includes the time spent advising and gathering information to complete them.
e) Our Professional Body means The Society of Will Writers, Chancery House, Whisby Way, Lincoln LN6 3LQ, being the professional body whose Code of Practice the Company operates and complies with.
f) The Terms means these Terms and Conditions of Business.
g) English law means the law of England and Wales under which the Terms, and the Legal Services provided, are governed and construed.
2) COMPANY’S ROLE
a) When you make an appointment with us, we will write to you to confirm the time and date of your appointment and attach a copy of the Terms to our letter or email. If you have made an appointment on short notice we will provide you with the Terms at the beginning of our appointment with you.
b) At an appointment, we will establish your personal situation and wishes, give appropriate advice as to your options and take your detailed instructions. The provision of such advice may include advice to take further action, which may incur further fees or payments to third parties such as; the courts, other professional advisers or insurance and investment providers. If you do not act on any or all of the advice given you may be asked to sign a declaration to this effect absolving the Company of any liability thus arising.
c) After you have approved the draft version of the Document(s) we offer to meet you again to supervise the signing of the final Document(s) by you (attestation). No charge is made if this meeting is at our place of business but a fee is otherwise payable for this service (the “Attestation fee”). If you do not choose for us to supervise the signing of the final Document(s) and do not return it to us to check, we will send you a remote attestation form which we will ask you to sign and return to us.
d) Where you have paid the Attestation fee, our agent will attend your home (or elsewhere if agreed with us) to supervise the signing of the final Document(s). One such meeting is included in the Attestation fee, but if a meeting cannot proceed for reasons outside of our control or if a further meeting is otherwise required for reasons outside of our control, a further Attestation fee will be payable for this further attendance in addition to the Attestation fee for the first meeting.
e) Any error or omission in the Document(s) made on our part will be corrected free of charge.
f) You have the choice whether to appoint an executor who is a professional (The Company), lay (family member or beneficiary), or both, and should take into account the size and complexity of the estate when deciding. If only a lay, the lay may engage the services of a professional on the death of the client. Where we are appointed as executors and as per Law Society guidelines, our fees for carrying out the administration of the estate could be charged for on an hourly rate basis or a percentage of the estate or both, determined on a case by case basis, taking into account the size and complexity of the estate. Typically, our charges would be in the region of 1% to 2% of the gross estate value plus vat plus disbursements.
g) We will hold and maintain Professional Indemnity Insurance cover of at least £2,000,000 with Barbican Protect arranged by Berkley Alexander Insurance Services and Public Liability cover of at least £5,000,000 with NIC arranged by Towergate Insurance.
h) We will comply with Our Professional Body’s Code of Practice, which is available free of charge upon request from the Company and from Our Professional Body at their address as set out at 1e) of the Terms. Non-compliance with the Code of Practice should immediately be brought to the written attention of Samuel Fitzgibbons, Managing Director of the Company.
3) COMPANY’S LIMITATIONS
a) We are not responsible for the verification of any of the information provided by you in your instructions, particularly with regard to the identity or address of any person identified by you. Information regarding family or business circumstances or the age or condition of any person identified by you is taken at face value and will be relied upon by us.
b) We do not have any responsibility for the future review of the Document(s). The Document(s) will be carefully drafted, based on your instructions and the current state of the English law. The company is under no obligation to advise you of any changes in taxation, legislation or the law generally which may affect you directly or indirectly and/or which might warrant any change to the contents of the documents and no liability can arise from this. Any changes in the personal circumstances of you or anyone named by you in the documents, or any change in the law, should be considered by you. These changes might include, but are not limited to births, marriages, death, incapacity, divorce, insolvency or a material change in financial circumstances. It remains your responsibility to seek further advice if necessary.
c) Whilst every reasonable care will be exercised in providing the Legal Services, we are not liable for any losses arising in any way from acting on your instructions unless they are caused by our own fraud or negligence and subject to the limitations set out in this clause 3.
d) We exclude all and any liability for damages, claims, actions, proceedings, demands, awards, compensation, costs, expenses and all other losses and/ or liabilities which exceed the amount covered by our professional indemnity insurance from time to time. This limit applies to the level of claim and not the value of the transaction or work to which a claim may relate.
e) We exclude, to the extent permitted by law, any and all liability for any damages, claims, actions, proceedings, awards, compensation, costs, expenses and all other losses and/ or liabilities to third parties who are not a client of ours in relation to the relevant matter.
f) You agree not to bring any claim in respect of loss and/ or damage suffered by you arising out of and/ or in connection with the services provided by us (including but not limited to negligence or non-performance of the services by us) against any director, shareholder, employee, agent or consultant of the Company. This restriction will not operate to exclude the liability of the Company for the acts and/ or omissions of any director, shareholder, employee, agent or consultant of the Company. It is agreed that any director, shareholder, employee, agent or consultant of the Company will have the right to enforce this clause under the Contracts (Rights of Third Parties) Act 1999.
g) You agree to indemnify us and keep us indemnified against any damages, claims, actions, proceedings, awards, compensation, costs and expenses and other losses and/ or liabilities which arise from a third party obtaining from you any aspect of the advice provided by us, unless we have agreed in writing to accept liability to such third party or the third party was a client of ours in relation to that advice.
h) All third party rights are excluded and no third party may enforce the contract between yourself and us unless we expressly agree in writing to the contrary.
i) Each of the limitations and/ or exclusions contained in the Terms is deemed to be repeated and apply as a separate provision for each of liability in contract (including material/ fundamental breach), liability in tort (including negligence), liability for breach of statutory duty and liability for breach of common law except our cap on liability which applies once to cover all of these bases of liability.
j) We are not liable for any loss arising out of failure to properly execute the Document(s) under English law unless the execution has been supervised in person by an agent of the Company.
k) We will not give detailed tax or investment advice, we can only comment on these matters in a generic way. Advice on these matters should be sought from a qualified professional in the relevant field.
l) The limitations set out in this clause 3 do not limit and/ or exclude our liability for death or personal injury due to our negligence, liability of our fraud and/or any other liability of ours which it is not permitted to limit and/or exclude as a matter of applicable law.
m) All correspondence between us, our agents and you will be by first or second class post or email at the relevant addresses. Any signed Document(s) will be sent to you by Recorded or Special Delivery by Royal Mail or by Courier (arranged and paid for by you). We will charge you a fee of £5 for Recorded or £10 for Special Delivery (or the actual cost if greater). We will not be liable for any loss arising from non-delivery of post or email, or any loss of documents beyond our control.
n) We reserve the right, at our absolute discretion, to decline to provide Legal Services to you. Where we do so, we will issue a refund when we notify you of our decision. If you instruct us to act contrary to our advice we may ask you to sign a disclaimer and waive any liability arising from following your instructions.
4) YOUR RESPONSIBILITIES
a) In order to give you appropriate advice and draft Document(s) effectively you must disclose all relevant information and give full answers to all queries when we take your instructions. We cannot be held liable for any losses resulting from wrong or incomplete information given to us. It is your responsibility to check the information recorded for accuracy and completeness before it is submitted to us and you will be asked to sign to this effect.
b) You must check any draft Document(s) sent to you thoroughly including to confirm the names and addresses are accurate and that they correctly reflect your wishes. You may contact us for advice and support by telephone on 020 8681 8451.
c) If you do not receive the draft Document(s) within the timescales below you must notify us.
d) We can provide you with an addressed envelope for the return of Document(s) that we have prepared but you are responsible for the safe delivery of any Document(s) to us, by whatever suitable means you choose, and where necessary at your own expense, and for arranging suitable insurance. We will not accept any responsibility for loss in transit to us. We will acknowledge safe receipt of executed wills, but not their completeness or content, which remains your responsibility.
e) You will pay the agreed fee for the Legal Services on the date we receive your instructions, usually at our first appointment with you.
f) If you have made an appointment with us but cancel it on less than 24 hours notice or if upon us attending the appointment, it cannot proceed for any reason beyond our control, a fee calculated on a time spent basis (chargeable at a rate of £100 plus VAT per hour.A typical estimate of travel and meeting time is 1 to 3 hours) or £35 plus VAT whichever is the greater will be incurred by you.
g) If you have arranged an attestation visit by our agent, you should arrange for witnesses and attorneys (if required) to be present with you at the agreed time and place.
h) In order for us to comply with Money Laundering Regulations you must provide us with acceptable proofs of identity and address, upon our request.
i) Your continued instructions will amount to an acceptance of the Terms.
5) FEES AND PAYMENT
a) Our fees will be as agreed with you prior to us carrying out any work.
b) Our fees are due and immediately payable with your instructions, as we charge fixed fees to cover; travel time, meeting time, advice and expertise, drafting time and administration. We may at our absolute discretion agree to payment in two parts or by credit agreement (subject to minimum deposit and other conditions). Payments may be made by cheque, credit or debit card, credit agreement or cash (at our absolute discretion and subject to the current Money Laundering Regulations).
c) In certain circumstances the nature of the work we are instructed to do may change. In such circumstances we cannot incorporate this additional work into our fixed fees and so we will need to charge additionally for such work, which will be charged for on a time spent basis. However, please note that, we will agree any additional fees with you before commencing any work and will attempt to agree fixed fees wherever possible. Our fees are £150 plus VAT per hour for each hour of work carried out by a director of the Company and £100 plus VAT per hour for each hour of work carried out by any other employee for the Company. These rates will apply from now until 1st July 2020. all work will be charged in units of 1/10th of an hour (i.e. 6 minute units). Should you prefer to be charged on a time spent basis from the outset we require you to make this request in writing.
d) Ancillary legal services provided through a third party, such as first registration of a property, dealing with a leasehold property, deeds of gift or deeds of variation may incur an additional fee and/or registration or court fees.
e) If part of the fee paid to us is for services provided by a third party, we will receive that part from you as your agent and forward it to them.
f) We may pay part of your fee to a third party by way of a marketing fee, or we may receive a fee for introducing you to a third party who subsequently provides services to you. Details of these payments are available to you upon written request.
a) If you have requested us to prepare a Will, the timescales at 6a)i) to iii) take effect immediately upon you providing all the information required to complete the agreed instructions following the end of the cancellation period (see clause 12 for terms).
i) Dispatch of Draft documents – 10 working days
ii) Dispatch of executable documents after drafts are approved – 10 working days
iii) Dispatch of executable documents if drafts are not supplied – 14 working days
b) If you have requested personal delivery of your final Document(s) this will be arranged on a mutually agreed later date and will be subject to a fee to be agreed.
c) For more complex Document(s), or where we may have to rely on an external body or Government Department or Agency to provide us with necessary information, or where work is carried out by a third party, we cannot confirm set time periods but will keep you informed and produce the Document(s) as soon as is possible.
d) If we fail to meet these timescales, you may cancel the contract by writing to us, or decide to renegotiate the contract between us.
e) We will not accept liability for any consequences arising from (i) delay on your part; or (ii) delay on the part of a third party who we have advised you will need to assist in order that we can provide the Legal Services or (iii) the supply of incorrect information in the first instance.
7) FAST TRACK
If you require the Document(s) within 3 working days of us taking your instructions and/or instruct us to commence work prior to the expiration of the 14 days cancellation period you must pay our fees in full and your cancellation rights end as soon as we commence drafting the Document(s). A charge will be made for this service.
8) DATA PROTECTION AND CONFIDENTIALITY
a) All information disclosed to us will remain confidential and secure, except as below.
b) We may need to collect, use, share and store personal and financial information about you and others. This may have been provided by you or obtained from third parties such as HM Land Registry, fraud prevention agencies or others.
c) We may need to provide important information and guidance to parties named in the Document(s) but we will not do so without your express permission.
d) We will not pass your personal information to any external party without your express permission unless required to do so by operation of the law.
e) Where you provide us with personal and financial information relating to others, for example; family members, dependants, joint asset holders, beneficiaries, professional advisers and executors or trustees, you confirm that you have their consent or are otherwise entitled to provide this information to us and we can use it in accordance with the Terms.
f) We will retain such personal information after the termination of any services or products supplied to you for the periods specified or permitted for legal, regulatory, fraud prevention, financial or legitimate business purposes.
g) We may record or monitor telephone calls or electronic communications, including emails between us to check your instructions and ensure we are meeting our service standards.
h) You accept that internet or electronic communications are not necessarily secure unless they are encrypted and we are not responsible for any interception or misuse of such data.
i) A copy of the information we hold about you may be requested in writing from our Data Protection Officer at our registered address. The fee permitted by appropriate law or regulation may be charged for providing this information.
9) CLIENT CARE AND COMPLAINTS PROCEDURE
a) We are committed to providing you with a high quality service; we will therefore communicate effectively with you and keep you informed of progress. Our personnel are all aware of and trained in our client care policies and procedures.
b) We operate a complaints procedure whereby any issues that cannot be resolved with your named contact should be referred in writing to The Managing Director, Fitzgibbons & Company Limited, 266 Selsdon Road, South Croydon, Surrey CR2 7AA . Any such complaint will be acknowledged in writing within 10 working days of receipt. A full investigation will be undertaken and our written findings communicated to you within a further 28 days.
c) If a complaint is not resolved to your satisfaction, you may refer it in writing to the Society of Will Writers, Chancery House, Whisby Way, Lincoln LN6 3LQ.
d) If you are not satisfied with our decision or that of the Society of Will Writers (or if you choose not to refer your complaint to them), you may take legal advice as to your rights.
e) The above does not affect your statutory rights to other forms of redress.
10) FORCE MAJEURE
The Company shall not be held liable or deemed to be responsible for any delays or failure in performance under the Terms resulting from acts beyond its control, including but not limited to: Acts of God, acts or regulations of any government or supranational authority, war or national emergency, terrorist activities, industrial action, accident or fire.
11) LEGAL NOTICE
Any provision of the Terms declared void or unenforceable by any competent authority or court shall, to the extent of such invalidity or unenforceability, be deemed severable and the other provisions shall continue unaffected.
12) NOTICE OF RIGHT TO CANCEL
a) The Client has the right to cancel the Legal Services within the Cancellation Period as determined by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
b) The Client has the right to cancel the Legal Services within 14 Calender Days of instructing the Company (“the Cancellation Period”)
c) The Client may be required to pay for Legal Services provided if provision of the Legal Services has commenced with the Client’s written agreement prior to the end of the Cancellation Period.
d) Cancellation Notices must be sent to the Company at the following addresses:
(i) A Cancellation Notice sent by post or delivered by hand must be sent to: 266 Selsdon Road, South Croydon, Surrey CR2 7AA; and
(ii) A Cancellation Notice sent by email must be sent to: email@example.com
e) Cancellation Notices shall be deemed served upon the Company:
(i) In the case of a Cancellation Notice sent by post, at the time of posting; and
(ii) In the case of a Cancellation Notice sent electronically, on the day it is sent.
f) Use of the Cancellation Form is optional; however all Cancellation Notices, in whatever format, must be in writing and must contain all information included in the Cancellation Notice attached to your receipt.
a) If you choose to exercise the Right to Cancel in accordance with Clause 12 above, the provisions of this Clause 13 shall apply in determining any refund to which you may be entitled.
b) You must inform the Company you wish to exercise the Right to Cancel within the period required by Clause 12.
c) If the provision of Legal Services has commenced, at your written request, prior to the giving of notice by you and the end of the Cancellation Period, the Company shall remain entitled to any monies constituting the value of such Legal Services.
(i) Where the Client has already made payment to the Company, any refund issued shall be less the relevant sum determined under sub-Clause 13(c).
(ii) Where the Client is yet to make payment to the Company, the sum due from the Client shall be adjusted accordingly
(iii) The Company will inform the Client in writing of the relevant calculations involved in determining sums deductible or payable under this Clause 13.
d) If the provision of Legal Services has commenced prior to the giving of notice by the Client and the end of the Cancellation Period without the Client’s written request, the Company shall not be entitled to any monies constituting the value of such Legal Services.
e) If the Client requires their Documents urgently and require that the Company commence work prior to the expiration of the Cancellation Period the Client can agree to waive their rights under the Regulations by Ticking the relevant box on their instruction form. This will mean that they will be required to pay for any work completed should they decide to reinstate their right to cancel within the 14 days. This should be provided in writing.