Terms of Business
1. The Contract
1.1. This document (the “Terms”) and the letter of engagement addressed to you (“the Client”) set out the basis on which Franckel Law will undertake work for you (“the Contract”). Where the Terms conflict with the provisions of the Letter of Engagement, the terms of the Letter of Engagement shall prevail. You agree that any work that Franckel Law undertakes for you is on the basis of this Contract. The Contract may be varied by written agreement or as set out below. Franckel Law includes all its partners, employees, servants and agents. “We”, “our” and “us” in these Terms means Franckel Law, save where the context otherwise requires.
2. The client relationship
2.1. We owe you a duty to exercise reasonable skill and care in respect of any work we
undertake for you.
2.2. We are entitled to review the Contract from time to time. We shall notify you of any changes to the Contract, including hourly rates. Franckel Law’s hourly rates are, in any event, reviewed annually on 1 January. You agree to any such changes, including to the hourly rates, seven days after such notification, unless you inform us in writing of your objection.
3.1. We are entitled to assume that whoever gives us instructions has the requisite authority to do so. Where there is more than one of you, we are entitled to assume that any one of you can give instructions on behalf of (and so as to bind) all of you, and to share information received from any of you to all of you.
3.2. You are responsible for: (i) providing us with clear, accurate and timely instructions and information; (ii) providing us with timely access to data, information and personnel who can assist with our enquiries in order to complete our work within the agreed timeframe; and (iii) paying our bills in accordance with the Contract.
3.3. If we provide an undertaking in respect of any work undertaken for you, you will fully and immediately indemnify us in respect of all claims, time, costs, liabilities incurred by us as a result of complying with it. We may require security from you before giving any such undertaking.
3.4. Wherever possible, we shall ensure that the level of person assigned to undertake a particular task is appropriate to the circumstances. We try to avoid changes to the people undertaking work on your behalf, but it is sometimes unavoidable. If there is to be a significant change you will be notified promptly and the necessity of the change will be explained.
4. Conflict of Interests
4.1. We shall endeavour to check for any conflict of interests before agreeing to act. However, a conflict of interests may arise or only come to light after we have commenced acting for you. If we become aware of a conflict of interests that prevents us from continuing to act for you we shall inform you immediately. You will do likewise. You agree to pay all fees and expenses to the date of transfer of your matter concerned to a new service provider. We may, at our discretion, continue to act for the other party or parties concerned.
5. Our Advice
5.1. All decisions in connection with the implementation of our advice and recommendations
shall be the responsibility of, and made by, the Client.
5.2. You agree that any reports or advice from us will be accepted by you when they are delivered to you in their final form or when you first make use of them, whichever is the sooner. We shall not have any obligation to update any reports or advice issued by us after completion of the Contract, nor to monitor their continuing relevance or suitability for your purposes.
5.3. You agree that any reports or advice from us are for your exclusive use and should be used solely for the purpose of and in accordance with the Contract. Any reports and advice should not be used for any other purpose, recited or referred to in any document, copied or made available to any third party without our prior written consent.
5.4. You agree that no other person may rely on our reports or advice save as agreed by us in writing and we accept no responsibility to any other person in this regard.
5.5. All intellectual property rights in any reports or advice provided to you by Franckel Law are owned and remain with Franckel Law. On fulfilment by you of all applicable terms of the Contract, Franckel Law shall license you on a non-exclusive and non-transferable basis to use any such reports and advice for your own internal business purposes.
5.6. All reports and advice issued by us are limited to the laws of Jersey and are given on the basis that they shall be governed and construed in accordance with the laws of Jersey.
6.1. We aim to keep in regular contact with you as and when the need arises. Should you require progress reports at any other time, then we shall endeavour to make them available on request.
6.2. Whilst we may communicate by email, such communications are neither private nor secure. There is no guarantee given for correct message routing or promptness of delivery. All and any such communications are undertaken at your own risk.
6.3. We reserve the right to record conversations.
7. Fees and Expenses
7.1. A time-recording system is used by us and each fee earner has a basic hourly charge-out rate. Time is recorded in units of six minutes, with time rounded up to the nearest 6 minute unit where necessary. Time charged will include time spent gathering and assessing client due diligence when taking the new matter on and during the life of the matter, meetings with you and/or your advisers and court attendances (including any travelling and waiting time).
7.2. The hourly rate to be charged may vary according to the nature, size and complexity of the matter. In any event the hourly rate will be quoted and agreed in advance.
7.3. We reserve the right to amend the hourly rate, by notice in advance, should the circumstances be felt to merit it, in our absolute discretion.
7.4. In addition to our fees, we shall charge you and you are liable to pay us for any expenses incurred on your behalf, such as other persons engaged on your behalf (barristers, experts, couriers), necessary searches and Court fees.
7.5. Bills will be submitted monthly or otherwise at our discretion (for example after a substantial level of work or on the occurrence of a key event such as a hearing). The invoice will contain a brief description of the work undertaken.
7.6. Bills will be emailed to you unless a hard copy is specifically requested by you. The date of receipt of the bill, by you, shall be one working day after the email attaching the bill has been sent to your nominated recipient.
7.7. Where there is more than one of you, your liability for our bills is joint and several.
7.8. Please note that we shall apply Jersey Goods and Services Tax to our fees and expenses unless you advise us that you are registered as having International Services Entity Status.
7.9. We reserve the right to cease acting on a matter for you generally if you fail to pay a bill within 30 days of our sending it. However, we shall notify you of our intention before ceasing to act and we shall endeavour to discuss the position with you.
7.10. If a fixed fee is agreed with you we shall set out in writing the scope of the work to be undertaken by us within the fixed fee arrangement. We shall charge you for our expenses in addition to the fixed fee.
7.11. In the event of a taxation (court assessment) of our fees and expenses, the full level of those fees and expenses may not be recovered from the other party, even if they have the means to pay – indeed they are most unlikely to be recovered in full. As an approximate figure, on taxation you might expect to receive perhaps 60% of the costs incurred by you. That does not affect your liability to pay the full fees charged, subject to the rules of the Law Society of Jersey.
7.12. Any costs for which you are found to be liable to an opposing party are entirely your responsibility and shall not affect or delay your liability to pay our bills.
7.13. In cases where you are our client in your capacity as trustee of a trust, so that our bills would ordinarily be discharged using trust assets, we rely on you to ensure that the trust retains sufficient assets to pay those bills in accordance with our usual payment terms. In the event that, for whatever reason, there are insufficient assets, we reserve the right to seek payment from you in your own capacity.
8. Payment on account of our fees and expenses
8.1. We reserve the right to seek payment on account of our fees and expenses, particularly where you are not based in Jersey. Where such a payment has been requested, work will not commence until it has been received.
8.2. The amount requested will reflect the view taken at that early stage of the likely fees and expenses that may be incurred. It should not however be taken as a quotation or an estimate.
8.3. Further sums on account may be requested as the matter progresses.
8.4. Money on account will be held in a separate, designated Client Account. That money remains the property of you as the Client until such time as it is transferred with your consent in order to meet your obligations, or if we have notified you of an intention to utilise those sums within our usual payment terms, and no objection has been received.
8.5. If a payment is requested on account of a disbursement, that disbursement will not be incurred until payment is received.
8.6. Payment is due when stated in the request and otherwise within 14 days of our sending you the request. Late payment will lead to the immediate cessation of work on your behalf, without any requirement to give express notification to that effect.
9. Interest on outstanding accounts
9.1 You will pay our bills within 30 days of our sending them to you. In the event that our bills are outstanding for any time beyond that 30 day period, we reserve the right to charge interest on the balance outstanding at the rate of 3% APR.
10. Court proceedings
10.1 Where court proceedings are issued to which you are a party, we owe overriding duties to the court, including not to mislead to the court or permit the court to be misled, to take reasonable steps to avoid wasting the court’s time and to ensure that the court has before it all relevant decisions and statutory provisions.
10.2 You will also have obligations to the court, including a duty at the relevant time to disclose information, including by filing and serving a list of documents which are or have been in your possession, custody or power relating to any matter in question in the proceedings, and to disclose those documents to the other parties (and documents includes all versions of a document and however held, whether in paper form, electronically, on a disc, tape or otherwise, and includes internal emails and audio recordings). Therefore, with immediate effect you must not dispose of, transfer or otherwise put beyond your possession, custody or power any documents that might potentially need to be disclosed, and you must provide us with and allow us to consider all such documents.
10.3 The court has a wide discretion in relation to costs, and you may be ordered to pay the costs of the other parties to the proceedings.
10.4 The court will expect you to conduct the proceedings expeditiously, and to try to settle your differences by agreement (including by mediation) and it may sanction you should it consider that you have failed to do so.
11.1 You and we each agree that where either of us is in possession of information about the other that is by its nature confidential, or is designated as such by either of us orally or in writing (‘’Confidential Information’’), we each agree to keep it confidential, to use it only for the purpose of the Contract or its enforcement and not to disclose it to any other person without the other’s prior written consent. This will not apply to any information that otherwise becomes generally publicly available, is possessed prior to the commencement of the Contract or is acquired from a third party who has no such obligation of confidentiality, or information which is, or has been, independently developed by the recipient.
11.2 You and we each shall be entitled to disclose Confidential Information or other information to comply with any legal, professional or regulatory requirement. We shall also be entitled to disclose such information where we have a public duty to disclose it or where it is necessary in our own interests to do so. You agree to reimburse any fees and expenses that we may incur or forego in complying with any such requirement relating to any of our services to you imposed in any proceedings or regulatory process not involving any substantive claim or proceedings against us, provided that we notify you promptly and, where reasonably and legally possible, prior to disclosure.
11.3 Unless you instruct us otherwise, in the performance of the Contract we may attend meetings to discuss your affairs with your other advisers and may do so openly, free from any obligation of confidentiality owed to you.
11.4 We may use external agencies to undertake copying and other business support services. Before doing so we shall seek to ensure that appropriate safeguards are in place to protect any confidential Information.
11.5 In certain circumstances it may be necessary for us to erect an internal information barrier to protect client confidentiality. Where possible we shall discuss this with you.
11.6 We shall not be obliged to disclose to you any confidential information about the business or affairs of any other existing or former client, or any information in respect of which we owe a duty of confidentiality to another party.
11.7 Nor shall we be obliged to disclose any information to you, where such disclosure is prohibited by law or regulation; or where the information in question is received under a duty of confidence, including mistaken disclosure, or receipt where it is agreed with you that no duty to disclose arises or a different standard of disclosure applies; or where we reasonably believe that serious physical, mental or financial injury will be caused to any person if the information is so disclosed; or where the information in question relates to state security or intelligence; or in any event where the information is received by us or we become aware of it, after the instruction has been carried out or the matter has been completed, whichever occurs first.
11.8 When offering our services to others, or making others aware of the services we provide, we may disclose that we have acted for you unless you instruct us to the contrary.
12. Data Protection
12.1 Franckel Law is registered for the purposes of Data Protection. We are bound by and comply with the requirements of the Data Protection (Jersey) Law 2018 and Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the General Data Protection Regulation or “GDPR”) (together “the relevant legislation”), applicable as of 25 May 2018.
12.2 The terms “to process/processing”, “processor”, “controller” and “(sensitive) personal data” shall have the meaning as provided for by the relevant legislation.
12.3 You confirm that you have read and understood Franckel Law’s Privacy Notice and acknowledge that Franckel Law has communicated the purposes for which it may process Personal Data provided to it as part of this engagement.
12.4 During the engagement, you as data controller, may provide Franckel Law with personal data. We confirm that it will take all technical and organisational security measures required pursuant to the relevant legislation.
12.5 By agreeing to the Contract and these Terms of Business you agree that you will not give instructions to Franckel Law that in any way would be in contravention of the relevant legislation or Data Subject rights.
13. Resolving Problems
13.1 If the service given to you falls below your level of expectation, please notify one of the partners immediately and we shall try to address any problems with you.
13.2 Should you wish formally to complain about our services, please do so in writing addressed to one of the partners and send a copy of your written complaint to that partner by email. We shall acknowledge receipt of your complaint within two working days of receipt, investigate it in accordance with our complaints procedure and report to you on the outcome. Please contact us for a copy of our complaints procedure.
13.3 Should you be unhappy with the outcome of our investigation you may take your complaint to the Law Society of Jersey.
14. Insurance cover
Professional indemnity insurance cover is maintained to a level of £2m.
15. Limitation on liability
In the unlikely event of a claim being brought by you against us in relation to the services or to any other matter, the aggregate limit of liability of Franckel Law to you for all claims you may have shall be no more than £2m (two million pounds).
16. Storage of Working Papers
All files or records of any material matter will be retained in either physical form or electronically for at least 11 years from the last material entry therein. If retained in electronic form we may destroy the hard copies as and when we consider it appropriate. We may thereafter destroy all such files and records at our discretion if we consider it reasonable to do so, and in any event after 20 years from the date of the last material entry, in all cases without any obligation of prior notice or consultation with you.
17. Termination of Instructions
Either you or we may terminate the Contract in writing at any time, subject to its terms. We shall only terminate the Contract if we believe we have just cause for doing so, and save in exceptional circumstances we shall give you reasonable notice. If the Contract is so terminated, you will be responsible for fees and expenses up to the date of termination together with any fees and expenses associated with the termination and any transfer to other service providers. You acknowledge our right of lien over your property, including all documents, files and records, and that we have the right to retain such property until all outstanding charges are paid.
18. Governing Law and Jurisdiction
The Contract (including these Terms) shall be governed by and construed in accordance with the Laws of Jersey.
The Royal Court of Jersey shall have exclusive jurisdiction to determine any dispute (including claims for set-off and counterclaim) that may arise in connection with any aspect of or issue arising in connection with the Contract. We and you agree to submit irrevocably to the jurisdiction of the Royal Court of Jersey.