Transferring Australian Court Orders to the UK

1. Introduction

This document contains the standard Terms of Business of Christopher Burgon Solicitors English Judgments and should be read in conjunction with any accompanying correspondence that gives further specific information about your case.  This is an important document which you should keep for future reference.  We will request you to sign and date a copy of the letter accompanying these terms and return it to us immediately but, your continued instructions of this firm, after receipt of a copy of this document and accompanying letter will be taken as acceptance of their terms.

2. Your Instructions

We will identify your objectives and agree with you the work we will carry out, what is excluded from our remit and what is to be undertaken by others. We will confirm this in writing.

You must give us clear and full instructions, all relevant documents and details of any time limits, other constraints or commercial considerations at the outset, so that we have a clear understanding of your objectives for each transaction or case. We will agree these with you and explain the key issues. In litigation cases we will recommend a strategy for achieving your objectives.

We will advise you on the cost/benefit of any course of action you wish to pursue.

3. Christopher Burgon Solicitors Personnel

You will be given details of the person with day-to-day responsibility for the work and details of their level of experience and expertise.

We aim to allocate all tasks to the appropriate member of staff.

If it becomes appropriate to involve other personnel you will be advised and where possible this will be discussed with you. Sometimes we may need to involve other staff, for example to carry out court work at short notice, or due to illness, and we may involve junior lawyers and other staff in specific tasks subject to supervision. We would not expect pre-agreement with you in those circumstances.

4. Equality and Diversity

We are committed to promoting equality and diversity in all of our dealings with clients, third parties and employees.  Please contact one of our staff if you would like a copy of our Equality and Diversity Policy.

5. Communicating with You

We will communicate with you in a way appropriate to the urgency or circumstances at the time.  You should advise us of any special instructions you may have in regard to delivery of correspondence, emails, facsimiles or telephone calls.  Our normal hours of business are between 9.30am and 5.30pm Monday to Friday.  Messages can be left outside these hours and we can arrange an appointment at other times if this is essential.

6. E-Mail Communications

We regularly communicate by e-mail.  This may include correspondence, documents or other information. Whilst we have normal levels of security in place, you must be aware that email carries particular risks e.g. non-delivery and security breaches.  We protect our computer systems with suitable security and expect you to do the same.  By agreeing to our terms you are also consenting to our use of emails in this way unless you specifically exclude your consent by notifying us in writing.

7. Estimate of Our Costs

For each case we will provide an estimate of our fees. We will also provide an estimate for any likely significant disbursements e.g. Counsel’s fees and expert’s fees.  We will not instruct any expert without your agreement to the fee estimate.

We make every effort to ensure our costs estimates are as accurate as possible, although particularly in litigation matters it can be difficult to predict the costs, especially at the outset. We may therefore provide an estimate within a range or for a stage of the work. If so, we will provide revised estimates as the case progresses and/or for subsequent stages and at least every six months in any event.

We will provide a revised estimate if the case changes significantly.

Our estimates are based on the information you provide to us. We may need to revise them if additional information comes to light.

If you want to set a limit to our costs and/or disbursements for a particular transaction or case, please let us know and we will not exceed the limit agreed without your prior approval.

For monthly-billed matters we will usually confirm the overall costs incurred position against the current estimate on a monthly basis, when sending the monthly bill. If you have any special requirements for costs information please let us know and we will agree appropriate arrangements.

If for any reason we do not complete the work originally envisaged, we will charge you for the work done and expenses incurred.

8. Our charges

Our standard arrangement is to charge you based on the time we have spent on your case.

We will agree our hourly charging rates with you at the outset. They are subject to annual review on 1 January.

We will advise you of any changes in advance of effecting them.

Our rates may vary for different specialisations and types of work. If we agree a rate for a particular type of work and you later instruct us for different type, we will agree the new rates with you.

We also charge for expenses we have incurred on your behalf (sometimes called disbursements) (including Counsel, Experts and Cost Draftsman’s fees if applicable), and VAT where applicable.

Time is charged for legal advice and research, correspondence, telephone calls, reviewing, preparing and drafting documents, attending meetings and court hearings (including travel time) and all other time incurred on each transaction, including the preparation of attendance notes and memoranda, supervision, file reviews and collating and preparing documents and general file administration. Where significant periods of time are spent on a matter, the entire time period will be recorded and charged without deduction for minor interruptions.

We may agree a fixed fee for particular transactions. If so it will be based on the following assumptions, in addition to any specific assumptions set out in the matter engagement letter.

Disbursements, expenses and VAT are payable in addition.

There will be no substantial renegotiation of terms once we have commenced our work.

The transaction will be concluded reasonably and in accordance with the scope of work and specific actions agreed.

In certain types of claims we may be prepared to act for you under a Conditional Fee Agreement.  We will discuss the suitability of this type of funding with you.

If for any reason we do not complete the entire transaction, we will charge you for the work done and expenses incurred.

9. Payments and monies held on account

We reserve the right to request money on account of costs in advance of billing. If such a request is not met or our fees remain outstanding, we are entitled to cease acting and remove ourselves from the court record in any proceedings.

If it becomes necessary to incur significant disbursements (for example Counsel’s fees) we reserve the right to ask you to make a payment to us on account of those disbursements before we incur them. We will not incur such disbursements without first agreeing them with you.

10. Invoicing and Payment

Invoices will be delivered at intervals agreed with you.  The frequency of invoices will depend on the type of matter and may either be on a monthly basis or at the end of the matter.

Payment is due on presentation of our invoices. Where amounts invoiced remain unpaid, from 28 days after the delivery of our invoice, we reserve the right to charge interest on those amounts at either 4% above base rate or the current rate payable on judgment debts (whichever is the higher)

We are entitled to settle your account from monies received or held on your behalf and to exercise a lien to retain your papers or other property held by us until payment is made.

If any invoice is not paid when due or if funds are not paid on account within seven days of a request, we reserve the right to give notice to you to decline to act further and to deliver an invoice for the full amount of work carried out to that date.

If you have any query regarding an invoice you should contact the person with overall conduct of your case straight away.  You have the right to object to the invoice submitted to you and to apply for an assessment of our bill under Part III of the Solicitors Act 1974.

11. Payment of fees by Third Party

Notwithstanding any agreement that may have been reached in a particular case that a person other than you is to be responsible for the payment of our fees on your behalf, you will remain primarily responsible for our fees.  If you instruct us on litigation you need to be aware of the following points of principle, on which we will also provide more detailed advice at the time.

You must tell us about any legal expenses or other insurance that you may have which might cover either our costs or your potential liability for the other party’s costs. If you do not have cover you may wish to consider obtaining it. We are happy to discuss this and other methods of funding with you.

If you succeed in litigation and obtain an order that your costs are to be paid by another party, we will take reasonable steps to recover those costs. However, if for any reason, such as financial difficulties, your opponent does not pay those costs, your liability for our costs remains.

Even if successful and in receipt of a favourable costs order, you are usually only able to recover a proportion of our costs from your opponent.  The court will decide this proportion through a procedure known as an “Assessment”.  For example, on occasions there may be more than one member of staff present at a meeting (e.g. a senior and assistant solicitor). The decision for both members of staff to attend will have been taken by us and you on the basis of providing the most effective service to you. However, a court may not agree with this decision and not allow all of the costs incurred and only order the other side to pay the cost of one member of staff attending such meetings.

If you are unsuccessful in litigation, it is likely that the court will order you to pay your opponent’s costs in addition to our costs. Your opponent’s costs are also subject to Assessment and you will therefore have an opportunity to review and if appropriate, ask the court to reduce those costs.

If another party obtains Legal Aid at any stage it is unlikely that you will recover costs even if successful. If this happens we will discuss the implications with you.

12. Legal Aid

If you have a relatively low income and/or do not have large savings or other assets and/or are in receipt of means tested benefits you may be eligible for legal aid.  If you believe that you may be eligible, please let us know and we will look into this with you further.

13. Limitation of Liability

Our liability to you for a breach of this retainer shall be limited to £3,000,000 (three million pounds) or such other higher amount (if any) as is expressly set out in the letter accompanying these terms of business.  We will not be liable for any consequential, special, indirect or exemplary damages, costs or losses or any damages, costs or losses attributable to lost profits or opportunities.

You also agree that you will not bring any claim arising out of this retainer against any individual member or employee of Christopher Burgon Solicitors.

These limitations apply only to the extent that they are permitted by law.  In particular they do not apply to any liability for death or personal injury caused by negligence.

We may be prepared to agree a higher limit of liability for certain transactions, in which case higher fee rates may apply. Please discuss any variations with the person dealing with your case. Any agreement relating to our limit of liability must be confirmed in writing.

We carry Professional Indemnity Insurance which covers all areas in which we undertake work.  Our Insurers are W.R. Berkley Syndicate Management Limited 14^th Floor, 52 Lime Street, London EC3M 7AF.

14. Anti-Money Laundering Procedures

14.1         Proof of Identity

In order to comply with the law on money laundering we need to obtain evidence of your identity and proof of your address.   We will need to see your passport or photo driving licence and an original utility bill issued in the last three months showing your name and private address.  In the case of a company client we will also need to see the original or certified copy Certificate of   Incorporation and proof that you are an officer or shareholder with authority to give instructions on behalf of the business.

14.2         Confidentiality

Solicitors are under a professional and legal obligation to keep the affairs of clients confidential.  This obligation, however, is subject to a statutory exception:  recent legislation on money laundering and terrorist financing has placed solicitors under a legal duty in certain circumstances to disclose information to the National Crime Agency.  Where a solicitor knows or suspects that a transaction on behalf of a client involves money laundering, the solicitor may be required to make money-laundering disclosure.  If this happens, we may not be able to inform you that a disclosure has been made or the reasons for it.

Please note that our work for you may require us to disclose information to third parties such as expert witnesses and other professional advisers.  We will not disclose any information to any other third-party without your permission or a court order.  It is important if you wish for us to discuss your matter with friends or family that you provide us with your express authority.

14.3         Cash

Our firm’s policy is not to accept substantial cash payments from clients.  If cash is paid directly into our bank we reserve the right to charge for any additional checks we deem necessary regarding the source of the funds

15. Tax Advice

Sometimes work that we do for you may involve tax implications or necessitate the consideration of tax planning strategies.  We do not normally advise on tax implications of a transaction that you instruct us to carry out, or the likelihood of them arising.  If you have any concerns in this respect, please raise them with us immediately.  If we can undertake the research necessary to resolve the issue, we will do so and advise you accordingly.  If we cannot, we may be able to identify a source of assistance for you.

16. Regulation

We are regulated by the Solicitors Regulation Authority,

We are not an authorised body under the Financial Services and Markets Act 2000 but we are able, in certain circumstances, to offer a limited range of investment services to you because we are regulated by the Solicitors Regulation Authority.  We can provide these investment services if they are an incidental part of the professional services we have been engaged to provide.

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/register.

The Law Society is a designated professional body for the purposes of the Financial Services and Markets Act 2000.

17. Client service and complaints procedure

We are committed to providing a quality service to all our clients.  We are confident that you will be entirely satisfied with our work.  However, if you have any queries or concerns please raise them as soon as possible with the person named in any correspondence accompanying this document who has overall responsibility for your case.  If after discussion with the person responsible for your case you still have concerns you should refer the matter to Christopher Burgon our client care manages, who will investigate your complaint.  Our Complaints Procedure is available on request.

If after our internal complaints procedure has been followed, you remain dissatisfied with the handling of your complaint you can ask the Legal Ombudsman to consider your complaints.  Contact details for the Legal Ombudsman are PO Box 15870 Birmingham B30 9EB Telephone 0300 555 0333 Email enquiries@legalombudsman.org.uk. Further information is available at www.legalombudsman.org.uk

18. Papers and Documents

We will retain any important personal documents you lodge with us during the currency of your case in our safe.  These will be returned to you at the end of your case.

We scan all incoming papers into our document management system, so that we have a full digital record of your file.  Generally, we also have a paper file while your case is live, but do not need to keep it when the cases finishes, so at the end of your case we will fully report the outcome to you in writing and offer you the paper file.

If you want your paper file, please let us know within 42 days and let us know where it needs to be sent.  If the file is substantial we may have to ask you to collect, or pay for postage or courier.  If you tell us you do not need the papers, or we do not hear from you for 42 days, we will have the file confidentially shredded without further notice.

From then on we will have the full digital record only, but we can download it to a CD/DVD and send it to you, or, if the file is not too large, email it to you.  We reserve the right to charge an administration fee for this service.  We can also have the file printed to paper, but you will have to pay for the cost of doing this in a print shop.  We plan to retain the digital record for as long as we are allowed to under the Data Protection Legislation, which in no case will be less than 6 years.

We are entitled to retain your papers and/or digital copies if there are outstanding monies owed to us until such time as those outstanding monies are discharged.

19. Data Protection

We use the information you provide primarily for the provision of legal services to you and for other related purposes including updating and enhancing client records, analysis for management purposes and statutory returns, and legal and regulatory compliance.  Our use of that information will be subject to your instructions, the Data Protection Act 1998 and our duty of confidentiality.  You have a right of access, under data protection legislation to the personal data that we hold about you.

20. Newsletters and Publications

By accepting these terms of business you agree that we may send you news of services, seminars or items we believe will be of interest to you.  We may send them by post or by email.  If you do not wish to receive this material please tell our Data Manager whose email address is cb@christopherburgon.co.uk

21. Copyright

We own the copyright in any work we create and this copyright will not be transferred to you.  We grant you a non-exclusive licence to use such documents solely for the purpose for which we provide them to you but not for any other purpose.

22. Applicable Law

Any dispute or legal issue arising from our Terms of Business will be determined by English Law and will be submitted to the exclusive jurisdiction of the English Courts.

23. Ending our Retainer

You may end our retainer at any time by writing to us to that effect.  We may elect to stop acting for you, but only if we have a good reason to do so (for example, if you do not give us the instructions we need, or do not make a payment when due, or if a conflict of interest arises) when we will give you as much notice as we can and confirm the reason in writing.  If you or we decide that we should stop acting for you, you will pay our charges up until that point.  These charges will be calculated as set out at 8. above and the letter accompanying these Terms of Business.

24. Interest

In accordance with the Solicitors Accounts Rules we will account to clients for interest on funds held in our general client account when it is fair and reasonable for us to do so in all the circumstances.  In normal circumstances, if the total amount of interest calculated over the course of a retainer is less than £20, no interest will be paid.   If funds are held on a separate designated client deposit account, the interest earned on that account will be accounted to the client.