1. General
2. Conveyancing
3. Executries
4. Legal Aid - Civil
5. Legal Aid - Criminal
6. Personal Injury
7. Private Court Work - Civil
8. Private Court Work - Criminal
9. Letting Agency
10. Final Remarks
1. GENERAL
Whilst these Terms of Business are divided into sections depending on the type of transaction or case applicable to you, you may find it helpful to read everything here in full, given that if you instruct us in another matter or your circumstances change, other parts of these Terms of Business may become applicable to you.
Instructions
As your agents, we can only act on information and instructions given to us. You should not assume that we have knowledge of any factual matters or your personal circumstances. You can either instruct us verbally or in writing, although we may ask you to confirm verbal instructions to us in writing. If there is any change in your instructions, you must notify us immediately.
Unless otherwise advised, your business will be handled normally by the solicitor at the firm with whom you have spoken and have instructed. This does not mean that the same solicitor will carry out all work personally, as there may be occasions where the solicitor dealing with your transaction or case is unavailable, and therefore, your matter may be handled by another solicitor in the firm. Your solicitor can be contacted during the office opening hours (Monday to Friday, 9am to 5pm). If you encounter any difficulty in contacting the solicitor dealing with your transaction or case, you should contact his or her secretary who will pass a message to the solicitor for action. Please be aware, however, that if the solicitor handling your transaction or case has not had the opportunity to return your telephone call or respond to your letter or email, this does not mean that your matter is not being progressed, as all significant developments in your case will be communicated to you whenever necessary or appropriate.
If you would prefer to communicate with us by email please let us have a note of your email address, and if that changes or there are any other changes to your other contact details please let us know as swiftly as possible so that we can keep in contact with you.
If you are going to be away from your normal home address for any length of time it is important that you let us know and provide a forwarding address in order that we may remain in contact with you.
Charges
Unless your case is being covered by the Scottish Legal Aid Board, our hourly rate will be confirmed to you in writing.
Any estimate given will be for a probable fee based on our experience of the general amount of work involved in a typical transaction or case of the type involved. If the work turns out to be more complex than normal, then our estimate may require to be amended. You will be kept advised of any such changes.
Along with our fee, we will issue a statement detailing financial dealings on your behalf. You are liable for expenses normally and properly incurred for a transaction or case of this type. By accepting these terms, you are giving us your consent to incur and settle these expenses. This will include outlays which may have been incurred. Sometimes we may need to employ non-McArthur Stanton personnel to do work on your behalf e.g. surveyors or accountants. If this is required, you will be liable to settle their fees and expenses and you hereby authorise us to settle these if necessary from any funds we hold on your behalf. We may also make a separate charge for photocopying, stationery, postage, fax transmissions and telephone calls (referred to for brevity as “posts and incidents”). This appears as a separate item on the statement of fee and is also subject to VAT. Where outlays have been incurred, we will require repayment of them within seven days of receipt by you of a request for payment from us. Our fees plus outlays are payable within 28 days of the date of the statement, except where arrangements for payment by instalments are made. If arrangements are made to pay by instalments, full payment must be made within a period of no longer than 12 months. You hereby authorise us to settle our fees and expenses from any funds which we hold on your behalf. By prior arrangement with our credit control department, it may be possible to pay our charges by 12 monthly instalments by standing order. A charge of £30 plus VAT will be made when redeeming a mortgage electronically. This charge will also apply to any other organisation we pay in relation to your transaction where electronic payment is the preferred method. Payment of funds due to you at the end of a transaction are normally made by cheque. Upon request, payment can be made electronically to your bank account subject to a charge of £30 plus VAT. Foreign transfers also incur a charge of £30 plus VAT per transfer. Charges in relation to bank transfers are subject to change and are reviewed in February of each year.
We may require you to settle accounts and repay outlays during the course of a case. In these circumstances, interim statements will be issued. Large outlays will require to be paid to us before they can be paid out by us. In the event of an interim statement remaining unpaid we regret that we may decline to act further for you.
Similarly, we may require to submit interim notes of fee to you at regular intervals during the course of the case. Any sum held by us to account on your behalf will be credited towards the interim account (unless it is held for another specific purpose, such as payment of a principal sum) and you will be expected to pay the balance of the interim fee note within 28 days as aforesaid. Interim fee notes will not necessarily be exhaustive in their reflection of the work done to the date of the fee note. A detailed account of all work done can only be prepared once the case has concluded. In the event that an interim note of fee remains unpaid 28 days from its date, we may decline to act further for you. By prior arrangement with our credit control department, we may agree to accept payment of the interim fee note by instalments up to a maximum of 12 monthly instalments covering a period of no more than 12 months.
Although it may be the case that a third party is ordered or agrees to pay your expenses, you will remain personally liable for payment of our fees and outlays as and when they become due until such payment is received from the third party.
In the event that our fee is not assessed by us but by the Auditor of Court or a firm of Law Accountants, both of whom are entirely independent and who will assess the fees due to us for our whole work and responsibility in connection with the tasks carried out by the firm, in general the Auditor’s or Law Accountant’s fee will be due by you.
If you wish to dispute the level of fees charged in your transaction or case, and if we have not done so already, we will ask your file to be assessed independently by the Auditor of Court. If the Auditor assesses that your fee should be the same as or more than what the firm has charged you, the Auditor’s fee will be due by you, and you will be liable to pay our fee as assessed by the Auditor as above within 28 days of the date of our revised fee and statement, except where arrangements for payment by instalments are made.
In the event that you fail to make payment in full of any fees and outlays charged and intimated to you as above, we reserve the right to raise an action against you in a court of appropriate jurisdiction, seek a Decree for the total sum due, together with interest and expenses, and seek to enforce that Decree against you if you have not complied with it. It would be with great regret that such steps became necessary, and therefore, we recommend that if you have any concerns regarding our charges or your ability to meet them, you contact your solicitor as swiftly as possible.
Money Laundering Regulations
McArthur Stanton is obliged by law to comply with all civil and criminal legislation currently in force. This includes the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007. These require us to make identity checks on all clients so we must verify the client’s identity. All new clients (and some existing clients, where up-to-date records are not already held) will therefore be asked to prove their identity before we can accept instructions. Please therefore let us have suitable documentation (e.g. passport or photographic driving licence) which can verify your identity along with a recent bank statement, Council Tax notice or utility bill (but not a mobile telephone bill) confirming your current address. Please note that the regulations prevent us from carrying out any work for you until we are in possession of suitable identification documents. If you fail to provide suitable identification timeously and a deadline (e.g. a closing date) is missed as a result, no liability will rest with McArthur Stanton.
Due to the identification requirements mentioned above we are unable to accept any funds from third parties (including members of your family) unless they are directly involved in the matter at hand e.g. loan funds from your bank. We are only able to accept cash payments up to a maximum of £500. In order to comply with the requirements of the Money Laundering legislation, in certain circumstances we may require to obtain additional information from you regarding the source of any funding and the whole financial history relating to the transaction, which could include exhibition of bank statements, contracts, share documentation or similar. If you fail to produce such documentation when requested, we will be entitled to withdraw from acting or delay completion of your transaction or case until such time as satisfactory evidence regarding the funding has been provided.
Our Solicitors' Professional Clients' Account details are as follows:
Royal Bank of Scotland, Colquhoun Square, Helensburgh, Sort Code 83-23-03, Account Number 00216130. If you receive any communication which requests payment to that account, please call our office to confirm those details and that the request for payment has come from this Firm. During any transaction, the Firm's said account details will not change, by email or otherwise, and if you are in doubt about the details with which you have been provided, again please call our office for clarification.
As a rule, we will never accept an emailed instruction to change your destination bank account for a transaction, we will always seek further verification of that instruction either by telephone or face to face, and if during a transaction you subsequently change your payment instructions, we will not make any payment until those instructions have been so verified.
Charge for Identity & Source of Funds Verification
In terms of our regulatory requirements in respect of anti-money laundering, client identification, and source of funds verification, as a client you will be asked by us to provide documents and information as is necessary for the matter in which you are instructing the Firm. We will provide you with a link to the Amiqus website to provide such documents and information, and this will be carried out securely in line with our privacy policy.
This step is necessary not only for the Firm to comply with our requirements, but also for you to ensure that your compliance checks are carried out smoothly and securely. We use Amiqus as it is recommended by the Law Society of Scotland, and because it is certified by, and exceeds, the requirements set by the UK government cyber security accreditation scheme Cyber Essentials Plus.
For this helpful service, an administration fee of £15+VAT will be added usually to your first invoice. If you have any questions about this service, please do not hesitate to let us know.
Working for Companies
If we are undertaking work for a Company, we will only accept instruction from a Director, Company Secretary or person nominated by a Director or Company Secretary to instruct ourselves. In any event, the Director or Company Secretary, by instructing us on behalf of the Company, personally guarantees the obligations of the Company to ourselves, and undertakes, as an individual, to indemnify us in respect thereof, in particular in relation to any outstanding fees, VAT and any outlays incurred on behalf of the Company in relation to this matter.
Cleared funds
The Law Society of Scotland, which is our governing body, has issued guidelines to all solicitors on the vexed question of cleared funds. At the heart of the problem is that any cheque is not actually money, it is only a promise that the Bank will pay money in exchange for the cheque. The way that the bank clearing system works means that it can take up to 4 banking days for the promised money to be deposited in our bank account. However, the Payer Bank reserves the right to return a cheque as unpaid up to 10 full working days from the date it was banked. If the firm were to send out a cheque on the strength of an uncleared cheque and, for whatever reason, the uncleared cheque is returned “refer to drawer”, then this could lead to a breach of the Law Society of Scotland’s Accounts Rules.
In light of these guidelines, we have had to implement stringent standard procedures for all transactions and cases that cannot be departed from. These are:-
a. Where funds are received from the client by way of personal cheque as a deposit in relation to a transaction, the said cheque must be received by this firm 14 full days prior to the date of settlement.
b. Where the client is making a payment of funds to us directly in to our bank account via the Banking CHAPS system, these funds are treated immediately as cleared funds. However, for the purposes of ease of settlement of the transaction, we would ask that clients let us have these funds no later than the day before settlement.
c. Funds received from another firm of Solicitors by us and paid into our bank account on behalf of a client will be subject to the normal bank clearing times of 3 to 4 working days. We reserve the right to impose a ten working days clearing period for personal cheques received from third parties on behalf of a client.
d. If you change the arrangements for transfer of funds to us and this has an adverse effect on our ability of settle your transaction no liability will rest with McArthur Stanton.
e. As soon as funds are cleared in our account, clients will be issued with a cheque in respect of the sums due. Clients can also request that the funds be electronically transferred via the banking CHAPS system to their nominated account under deduction of our standard administration fee, currently £30 plus VAT per transfer. This charge also applies where redemption of a mortgage or any other account on behalf of the clients takes place by CHAPS. Foreign transfers also incur a charge of £30 plus VAT per transfer. Charges in relation to bank transfers are subject to change and are reviewed in February of each year. In order to ensure full compliance with the Law Society of Scotland's guidance on the Money Laundering Regulations 2007 and the Proceeds of Crime Act 2002, it is the firm's policy that no payments will be made to third parties who are unconnected with the transaction. This includes spouses, civil partners, relatives and any companies or organisations connected with our clients. We will not make payments in cash under any circumstances.
Interest on cleared funds
In terms of Rule B6.10.1 of the Law Society of Scotland Solicitors’ (Scotland) Accounts Rules etc, the firm will not be obliged to earn interest on client funds held by us during the course of a transaction where the total interest earned for the duration of the transaction is likely to be less than £150.00 net. It should be noted that this Firm receives a percentage commission on all sums invested on behalf of clients with the Royal Bank of Scotland Client’s Money Service and other agencies with whom we may choose to invest from time to time. A fuller explanation and details of the above Rules and how funds require to be invested are available on request.
Incidental Investment Business
In case we require to carry out incidental investment business for you, we are required by the Law Society of Scotland to advise you of the following:
a. The firm is licensed by the Law Society of Scotland to carry on incidental investment business activities. These activities are limited in scope. For example, the investment advice provided will be obtained from a firm of stockbrokers. Our firm will not comment on their advice;
b. The firm is not authorised under the Financial Conduct Authority; and
c. The firm is covered by Professional Indemnity Insurance under the Law Society of Scotland's Master Policy and also the Scottish Solicitors Guarantee Fund.
It should be noted that in the event that we refer you to other organisations (such as financial advisors) this firm may receive a referral fee or commission from these organisations. If you wish more information about how this relates to your matter, please contact the solicitor with whom you are dealing.
Confidentiality
Information provided to us will be dealt with in confidence and will only be disclosed to parties authorised by you or as required by the Law Society of Scotland or any other body to which we are obliged by law to disclose such information. We reserve the right to destroy your file securely after an appropriate period following the conclusion of your transaction or case, conform to the guidelines laid out by the Law Society of Scotland; if you do not consent to this or otherwise wish copies of any documentation on your file, it is your responsibility to request this in writing as soon as is reasonably practicable once your matter has concluded.
Client satisfaction & feedback re levels of service
If you are concerned about any aspect of our service or have a specific issue about how the matter is being dealt with, please contact our Senior Partner, Mr Clinch, who will be in a position to review any difficulties. While we hope and expect that problems will not arise, we would prefer to know about them as soon as possible and to resolve any that there may be. If these matters cannot be resolved internally then you are entitled to contact the Scottish Legal Complaints Commission, 12-13 St Andrew Square, Edinburgh, EH2 2AF. Please note that in most cases any complaint which you wish to make to the SLCC should be lodged within three years of the service ending or the conduct which you are unhappy about occurring.
Termination of appointment
Either of us may terminate our professional relationship at any time by giving written notice to the other. We hope that this will not happen but if it does, you will pay us all fees and outlays and expenses incurred prior to such termination and due to us in accordance with these Terms of Engagement, together with any further fees and outlays and expenses reasonably incurred by us in connection with the transfer of our files to another solicitor instructed by you. Upon payment, we will deliver the originals or copies of all deeds and documents belonging to you.
2. CONVEYANCING
Home Reports and Energy Performance Certificates
A Home Report (which contains a Property Questionnaire, a Single Survey and an Energy Performance Certificate) is required for any property placed on the open market for sale (subject to certain exceptions). It is the Seller’s responsibility to ensure that the Home Report is obtained prior to marketing and we require a copy to be provided to us as soon as available. Please note that the guidance of the Law Society of Scotland to Purchasers is that they should not rely on a Single Survey that is more than 12 weeks old and the Seller may therefore wish to consider updating the Single Survey element of the Home Report from time to time. In addition, the Purchasers’ chosen lender may wish to obtain a separate survey no matter how old the Single Survey may be, and this will normally be obtained at the Purchasers’ expense. It is the Purchasers’ responsibility to make the appropriate arrangements with their lender or broker should such a survey be required and to keep us advised of the position.
An Energy Performance Certificate is required for any property offered for sale or lease. If your property already has a Home Report it will contain an Energy Performance Certificate. It is the Seller’s responsibility to obtain the appropriate Certificate and provide a copy of the same to your marketing agents (whether you are using the services of this firm or any other agency).
Purchases
In the course of this transaction, it is very likely indeed that you will require to provide us with certain information and assistance. In particular, it is your obligation to:-
a. Ensure that you have secured adequate borrowing from a suitable lender to finance any house purchase or transfer of equity. We require to have in our hands not later than 2 weeks before the date of entry, a firm offer of loan from a suitable lender relative to the property;
b. Arrange to have the property surveyed where appropriate;
c. Ensure that you comply with all obligations imposed by the lender, including having sufficient life cover in security for the mortgage;
d. Advise us of any relevant issue to the transaction, and in particular any issue which may disqualify you from holding title to heritable property, such as sequestration, or may bar you from obtaining loan funds, such as an inhibition;
e. If this transaction involves the purchase of a local authority property, ensure that the rent and Council Tax in relation thereto are fully paid up.
We reserve the right to charge an additional fee should we incur extra work in relation to the transaction caused by non-compliance with any or all of the above matters. Please note that our charges do not cover dealing on your behalf with any issue, which may arise after settlement of the transaction, which does not relate to the registration of the title to the property. Accordingly, any dispute which may arise over, for example, faulty central heating, can be dealt with by us on your behalf, but will attract an additional fee based on our current hourly rate.
Sales
In the course of this transaction, it is very likely indeed that you will require to provide us with certain information and assistance. In particular, it is your obligation to:-
a. Ensure that you have complied with all obligations imposed by the lender, in order that the mortgage can be fully redeemed when the price is paid;
b. Advise us of all loans secured on the property, aside from the main mortgage. Many loans relating to payment of double glazing, conservatories or new kitchens are secured on the property and as such, please tell us if you have taken out any such loan and provide us details of same as soon as possible;
c. Ensure that you have alternative accommodation arranged to enable the sale to proceed on the contracted date and have removed all your furniture and possessions by the contracted date so that the property can be handed over to the purchaser;
d. Ensure that the title deeds of the property can be made available to us at the earliest possible stage;
e. Notify us of any alteration, extension, or repair to the property which may require or have required, third party consent, planning permission or building warrant, and if so, to provide us with all relevant documentation relative thereto as soon as possible;
f. Advise us of any other relevant issue to the transaction, and in particular any issue which may disqualify you from holding title to heritable property, such as sequestration, or may bar you selling the property or redeeming the loan, such as an inhibition.
We reserve the right to charge an additional fee should we incur extra work in relation to the transaction caused by non-compliance with any or all of the above matters. Please note that our charges do not cover dealing on your behalf with any issue, which may arise after settlement of the transaction, which does not relate to the registration of the title to the property. Accordingly, any dispute which may arise over, for example, faulty central heating, can be dealt with by us on your behalf, but will attract an additional fee based on our current hourly rate. Please also note that, unless otherwise agreed, we do not advise on contaminated land.
3. EXECUTRIES
It is important that we receive all information relating to all assets, liabilities and family members to assist accurate completion of the estate.
Where there is no Will, a writ for the appointment of the Executor(s) may have to be lodged with the Sheriff Court and an Insurance Guarantee (known as a Bond of Caution) obtained.
To enable us to obtain Confirmation of the estate, valuations of all the estate assets and details of all the liabilities have to be obtained. From this information, an Inventory of the estate is completed, which is submitted to the local Sheriff Court, so that the Executors may be confirmed and the Confirmation document issued. If Inheritance Tax is payable (which only applies to some estates), arrangements need to be made to provide funds to pay this, as Confirmation will not be granted until the estimated amount of inheritance tax has been paid.
Once Confirmation is obtained, the assets can then be collected and the liabilities, including the funeral account and any other bills, can be paid. Any legacies can then be paid. If the winding up of the estate is likely to take some time and there are funds available, a payment to account to the residuary beneficiaries may be made. In due course, once all of the formalities have been completed (including where necessary, agreeing and paying the final balance of Inheritance Tax to HM Revenue & Customs), an account will be prepared detailing all sums received and expenditure incurred and dividing the estate among the residuary beneficiaries. This account will require to be approved by the Executors and residual beneficiaries before the final distribution can be made.
The timescale for winding up of each estate depends on the complexity of the estate. The nature of the work makes it difficult to estimate precisely in many cases how long something will take to complete. Often, however, the speed with which we can complete a piece of work is directly affected by the co-operation we receive from other parties outwith our control.
In executry administration fees are normally paid from the funds of the estate, but if there are insufficient funds in the estate then you will be liable personally for our fees and outlays. Our fee for the general executry administration will be assessed not by us, but by an the Auditor of Court or a firm of Law Accountants, both of whom are entirely independent and who will assess the fees due to us for our whole work, responsibility and any commission in connection with the administration of the estate. The Auditor’s or Law Accountant’s calculation of the fee will include any commission in connection with the moveable estate, sale or transfer of stocks, shares and other securities realisable on the Stock Exchange. Although not meant to be exhaustive the commission received would include (a) 1.5% on the first £30,000 of each sum realised; (b) 1% on the next £30,000 of each sum realised; (c) 0.75% on the balance over £60,000 of each sum realised; (d) if the stocks, shares and other securities are held in a nominee company or under a managed portfolio arrangement the rate would be 0.5% of each sum realised; (e) 0.75% on the first £30,000 of each sum transferred; (f) 0.5% on the next £30,000 of each sum transferred; (g) 0.25% on the balance over £60,000 of each sum transferred; and (h) if the stocks, shares and other securities are held in a nominee company or under a managed portfolio arrangement the rate would be 0.5% of each sum transferred. The Auditor’s or Law Accountant’s fee will be met by the estate. The fee for the general executry administration will be charged on the date we receive our file back from the Auditor or Law Accountant and you hereby authorise us to settle these fees and expenses from any funds we hold on your behalf. We may make a separate charge for photocopying, stationery, postages, fax transmissions and telephone calls (referred to for brevity as “posts and incidents”). This appears as a separate item on the statement of fee, is also subject to VAT, and is charged at the rate of 5% of the fee for the work carried out.
Unless negotiated and agreed in advance, fees are charged on the basis of time spent on the work, including all meetings with you and third parties in connection with the transaction, all correspondence with you and third parties in connection with the transaction, time spent perusing and / or revising documents etc. This work shall be charged at an hourly rate specified at the outset of the case and reviewed on an annual basis (with any adjustments to the hourly rate being intimated to you). In addition, charges shall be made for all letters, documents and other work based on a unitary value with one unit being equivalent to six minutes of time. To help you understand the breakdown of these fees, please note the following information:
- Meetings/perusing and considering papers – as per hourly rate.
- Letters are charged at 1.25 units per page of 125 words, or part thereof.
- Formal letters (acknowledgements/confirmatory letters) are charged at 0.5 unit.
- Letters of a similar nature (the same letter being sent to several people) for the second and subsequent letters are charged at 0.5 unit.
Drawing and framing deeds, inventories, court writs, papers and other necessary documents are charged at 5 units per sheet of 250 words or part thereof. Pro forma documents will be charged at 3 units per sheet. - Telephone calls – as per hourly rate.
- In addition, a responsibility fee will be allowed, between 0.25% and 0.5% depending on the value and complexity of the estate. This fee will only be chargeable on the moveable estate. A similar responsibility fee will also be applied in relation to the sale or transfer of heritable property in the estate.
Sometimes we may need to employ non-McArthur Stanton personnel to do work on your behalf, e.g. surveyors, accountants or anyone who has the necessary skills required to progress matters. If this is required you will be liable to settle their fees and expenses and you hereby authorise us to settle their fees and expenses from any funds we hold on your behalf.
Where we deal with the sale of a house, the fee for the conveyancing will be in accordance with our standard charges for such work. The fee for the conveyancing will be charged on the date of settlement of the sale of the house and will be deducted from the sale proceeds on that date.
4. LEGAL AID - CIVIL
General
Our firm is able to take on cases where clients are eligible for Legal Advice and Assistance or Legal Aid, which is provided by the Scottish Legal Aid Board (SLAB). Having assessed your case and circumstances, however, we may explain to you that whilst you may be eligible for cover from SLAB, for reasons which will be explained to you we will accept your instructions only if you are prepared to pay for our services at our current hourly rate, which rate will be confirmed to you in writing.
If we accept your instructions on a private fee-paying basis and your financial circumstances change subsequently to an extent where you wish us to consider your eligibility for cover from SLAB, please contact us and ask us to do so; please do not assume, therefore, that we are aware of any such changes in your circumstances, as we have no responsibility to check on an ongoing basis whether you are eligible for cover from SLAB. We will assess your eligibility for such cover based only on the information and documentation you provide us, and therefore, if you have asked us to assess your eligibility it is your responsibility to provide us as soon as is reasonably practicable with all information and documentation necessary for us to do so, as without this we are unable to assess your eligibility properly; if we have been unable to assess your eligibility as you have not provided such information or documentation within any timescales outlined by SLAB or otherwise within a reasonable period of time, then we reserve the right to accept your instructions only if you are prepared to pay for our services privately at our current hourly rate, which will be confirmed to you in writing.
Contribution and ‘Clawback’
If there is a contribution payable to us in respect of your cover from SLAB, please let us have it at your earliest convenience or we may be unable to continue to act for you. At the conclusion of your case, subject to the recovery or preservation of your property, we will render an account to SLAB who will meet our charges and outlays incurred within the scope of the Legal Advice and Assistance cover, subject to same being within the limit of the expenditure SLAB has authorised. Your case may also involve the requirement to make a full application for Legal Aid.
If your case involves claiming money or property, or defending a claim for money or property and you are successful, you must account for property “preserved” or “recovered” to SLAB who will consider whether or not our account and outlays must be deducted from the proceeds of your case. Even if what you receive is your own property, such as your share of the price of the matrimonial home, you may require to fund your legal expenses personally without the assistance of the SLAB.
We are unable to provide legal services to you without the continuing approval of SLAB. Accordingly, we will require from time to time to apply to SLAB for its approval of our providing legal services to you, and under the Legal Advice and Assistance cover will require to request sufficient financial cover for our undertaking further work on your behalf. This will inevitably delay the progress of the case, but is unavoidable.
We must have the prior approval of SLAB before we incur any major or unusual expense on your behalf. Again, this will inevitably delay the case, but is a rule set by SLAB and as such is unavoidable.
If your case reaches the stage of court proceedings, full Civil Legal Aid will be required. You will be asked to complete a number of forms in relation to your financial eligibility prior to Legal Aid being granted. If you are granted Legal Aid, you may be required to pay an assessed contribution which will be payable to SLAB directly. This may be payable in instalments. If you fail to pay any such assessed contribution, your Legal Aid cover may be suspended or withdrawn by SLAB, and in that instance we will not be authorised to undertake any further work on your behalf unless you wish to pay for this privately, at which point we would provide you with written confirmation of our charges and remind you to have regard to these terms of business.
In deciding what they will pay in relation to your legal expenses, SLAB will require that firstly, your legal expenses should be paid from any expenses gained from your opponent should you be successful in your case, secondly from any contribution you may have paid in respect of your Legal Aid cover, thirdly from any money or property you may have secured in your case as stated below, and only thereafter would SLAB pay your legal expenses. This means that as well as any contributions you have to pay, if you win or keep money or property, SLAB may take some or all of this money to cover any shortfall between what they have paid out in your case and what they have received. This is sometimes called ‘clawback’. SLAB will invariably deduct from funds sent to them the full amount of your legal bill, including outlays, and will then forward the balance to you. This can often cause substantial delays, but regrettably this is unavoidable. Similarly, you are not permitted to pay your own legal bill in such circumstances to shorten the process. If what you receive is not money but property, and you do not have enough free cash to pay the legal bill, SLAB will take a security over the property. When the property is sold, you will have to pay them what is due, with interest.
You are under a duty to provide SLAB and our firm all necessary information relevant to any application for Legal Advice and Assistance or Legal Aid. In the event that such cover is restricted or withdrawn due to a failure on your part to provide necessary information, or due to information provided by you being false, you will require to meet personally our charges incurred to date in your case not met by SLAB, which we will charge at the applicable Legal Aid rate, together with outlays incurred on your behalf.
If at any time for any reason your cover from SLAB is withdrawn or terminated, and if we continue to accept your instructions, you will be liable to pay for our services at the current hourly rate, which will be confirmed to you in writing.
If you are in any doubt whatsoever in relation to your rights and obligations in respect of your financial cover with SLAB, please do not hesitate to contact us in order that we can clarify your position straight away. For more information on clawback and also on every aspect of your entitlements and cover with SLAB, please visit www.slab.org.uk where you may download helpful forms and information.
5. LEGAL AID - CRIMINAL
Your case will principally be dealt with by our Douglas Thomson or Peter Young. In the event that that solicitor is unavailable the case may be passed to another qualified solicitor registered to provide legal aid. In the event of you having any concerns about our service in a legal aid case we would draw to your attention the complaints procedure outlined in these terms of business, which applies in the same manner.
We may assess whether you are entitled to Legal Advice and Assistance or Assistance by way of Representation (ABWOR) cover which is provided by the Scottish Legal Aid Board (SLAB). There may be a contribution payable to us in respect of your cover from SLAB, if so please let us have it at your earliest convenience or we may be unable to continue to act for you. At the conclusion of your case, we will render an account to SLAB who will meet our charges and outlays incurred within the scope of the Legal Advice and Assistance cover, subject to same being within the limit of the expenditure SLAB has authorised. Your case may also in due course involve the requirement to make a full application for Legal Aid.
We may require from time to time to apply to SLAB for an extension to your Legal Advice and Assistance cover in order to ensure that sufficient cover is in place for us to carry out further work on your behalf. This will inevitably delay the progress of the case, but is unavoidable. Where such cover is not granted, we will advise you of this and of the options remaining as a result.
In the event that your case is prosecuted in court, you may be eligible for either solemn or summary Legal Aid, depending on whether your case is prosecuted on petition or on summary complaint. In a petition case, SLAB decides whether to grant Legal Aid or not, and in a summary case Legal Aid is only available after you have pled “not guilty”. In that case, you must apply to SLAB for Legal Aid within fourteen days of pleading not guilty. If you are in employment, Legal Aid will NOT be granted unless you provide evidence of your income in the form of a wage slip or bank statement proving your income. It is a criminal offence punishable by a fine or imprisonment to knowingly provide false information or to make false representations to SLAB. In every criminal case the court must (by Section 196 of the Criminal Procedure (Scotland) Act 1995) consider discounting any sentence imposed on you if you tender an early plea of guilty. This may not apply in your case but we are required to advise you of the provision. We must have the prior approval of SLAB before we incur any major or unusual expense on your behalf. Again, this will inevitably delay the case, but is a rule set by SLAB and as such is unavoidable.
You are under a duty to provide SLAB and our firm all necessary information relevant to any application for Legal Advice and Assistance or Legal Aid. In either case it is your duty to advise the Scottish Legal Aid Board of any change in your annual income (such as a wage increase) or capital (savings) exceeding £750. In practical terms if your income increases by £15 per week and your outgoings do not change, you must tell SLAB or legal aid may be withdrawn. In the event that such cover is restricted or withdrawn due to a failure on your part to provide necessary information, or due to information provided by you being false, you will require to meet personally our charges incurred to date in your case not met by SLAB, which we will charge at the applicable Legal Aid rate, together with outlays incurred on your behalf.
If at any time for any reason your cover from SLAB is withdrawn or terminated, and if we continue to accept your instructions, you will be liable to pay for our services at the current hourly rate, which will be confirmed to you in writing.
If you are in any doubt whatsoever in relation to your rights and obligations in respect of your financial cover with SLAB, please do not hesitate to contact us in order that we can clarify your position straight away. For more information on every aspect of your entitlements and cover with SLAB, please visit www.slab.org.uk where you may download helpful forms and information.
6. PERSONAL INJURY
Following our initial meeting, if we agree to take your case on, we will conduct your claim on a ‘no win, no fee’ basis. In terms of this, if we consider it appropriate we will seek initially to negotiate on your behalf and on a ‘speculative’ basis, settlement of a compensatory award as compensation for your loss, injury and damage, this without the raising of Court proceedings or without securing financial cover via Quantum Claims as mentioned below. If we fail to recover a settlement for you on this ‘speculative’ basis, then you will not pay us anything. However, if we do negotiate a settlement on your behalf without the requirement of Court proceedings, or otherwise without having to secure financial cover on your behalf via Quantum Claims, you will receive 100% of any principal sum secured, under deduction of any outlays that are irrecoverable from the Defender(s) in your claim.
The Defender(s) may not admit liability for your loss, injury and damage. In this instance, or otherwise where we consider it appropriate in the circumstances, we may recommend that you enter a contract with Quantum Claims to ensure that you have financial cover for the progression of your claim, whether or not that will be via Court proceedings. Such a contract with Quantum Claims would outline the basis upon which Quantum Claims would provide financial cover for your claim. Generally, this would mean that if settlement could not be achieved in your case, then you would not pay Quantum Claims, our firm, or Lefevre Litigation should proceedings have been raised in the Court of Session as described below. Payment by you to Quantum Claims for a successful claim would be worked out as a pre-agreed percentage of the final compensation award you receive. If any of our outlays in your case were irrecoverable from the Defender(s), these would be deducted from any compensation award you receive.
If we consider that settlement cannot be achieved in your case and you have signed a contract with Quantum Claims as mentioned above, we may take the view that it would be appropriate for your claim to be raised as an action in court. If an action is raised in the Sheriff Court, we will remain as your solicitors, and you will remain contracted to Quantum Claims as above. However, if we consider that it would be more appropriate for your claim to be raised in the Court of Session in Edinburgh, you will again remain contracted with Quantum Claims above, but will be represented by Lefevre Litigation, Solicitors in Edinburgh from the date we intimate same to you until your claim is resolved. Accordingly, once Lefevre Litigation are instructed in your case, we will no longer be your solicitors and will have no further responsibility in relation to your claim, and all queries concerning same will require to be directed to Lefevre Litigation.
In the event that, for any reason, either you or our firm decide to terminate our professional relationship prior to settlement being achieved or an award of damages in respect of your claim being made (with the exception of where Lefevre Litigation have taken over your representation as above), you will pay to us a fee based on the highest negotiated offer to settle received at any time in writing up to the point of termination of our services, equivalent to 15% of such an offer plus VAT, or where no offer to settle has been received at the point of termination of our services, you will pay to us a fee in respect of all work undertaken by us to that point under our current hourly rate, which will be confirmed to you in writing.
7. PRIVATE COURT WORK – CIVIL
Unless negotiated and agreed in advance, fees are charged on the basis of time spent on the work, which may include advising, attending on you and others, dealing with papers, correspondence, telephone calls, travelling and waiting time and in appropriate cases attending court to represent you.
8. PRIVATE COURT WORK - CRIMINAL
Unless negotiated and agreed in advance, fees are charged on the basis of time spent on the work, which may include advising, attending on you and others, dealing with papers, correspondence, telephone calls, travelling and waiting time and in appropriate cases attending court to represent you.
9. LETTING AGENCY
The letting agent code of practice sets out the standards expected of letting agents operating in Scotland. Here is a copy for you to look over, as we ensure that our practice meets these standards. If you wish to submit a complaint about a landlord regarding your tenancy, please visit the First-Tier Tribunal for Scotland (Housing and Property Chamber) and follow the links to apply to the Tribunal.
10. FINAL REMARKS
We consider that it is important to put our relationship on a clear basis from the beginning. As a result, these Terms of Business are inevitably rather lengthy and formal. If you have any questions about the foregoing information, therefore, please do not hesitate to contact your solicitor.