Terms of Business

At McEwan Fraser Legal ("MFL") we value our reputation for professional standards.  We are committed to providing you with the highest quality of service and handling your instructions to us with professional skill, care and attention.  We believe it is important to establish a clear understanding of the basis upon which we provide our services.  These terms of business set out the terms and conditions which apply when you instruct MFL to act on your behalf.  If work has already commenced on your matter then, unless you notify us immediately in writing to the contrary, you agree that these terms of business apply retrospectively from the start of the work on the matter.  These terms of business are subject to any letter of engagement issued with them.  They will be deemed to apply for this and all subsequent transactions, unless otherwise notified in writing. If we have failed to communicate any point clearly, please contact us and we shall be happy to give an explanation.

1. Quality of Service
   In all our dealings with our clients we aim to provide a high quality service, to find out what our clients want, and achieve it.  We try to work quickly and efficiently, and we hope you find us friendly and approachable.  A nominated partner oversees the business of each client.   At the outset of our carrying out work on your behalf you will be informed as to who will have responsibility for dealing with your work and who will be your main point of contact.
2. Client and Source of Funds Verification
   The Law Society of Scotland and the Money Laundering Regulations require us to obtain satisfactory evidence as to the identity of our clients at the earliest practicable opportunity.  If you do not or cannot supply that information we are unable to carry out any work for you.  Such evidence must be obtained in respect of all parties for whom we act under these terms of business, including individuals and corporate bodies. We are also required to verify the source of funds passing through our hands, where these are provided by a third party.  In these circumstances you accept that we are entitled to make such enquiries of you and/or others in order to satisfy ourselves of the source of such funds, and that you must provide us with the relevant information immediately on request.
3. Instructions
   Instructions may be given to us in writing or verbally.  We may ask you to confirm in writing the terms of verbal instructions given to us, which, when required, should be done by return of post.  If there is any change in your instructions you must notify us immediately.  If you wish anyone other than yourself to give us instructions or information, you must confirm this in writing. You must let us have full details of each matter so that we can advise on the issues raised and how they may be dealt with. We rely on the information given to us by you to understand your position and to carry out our work.  It is very important that we are given as much information as possible and are told about anything that may be relevant to the work we are instructed to carry out for you. Unless we agree otherwise in writing, we shall assume that where we act for more than one person but only one of them tells us what to do, that person has the authority of the other(s) to do so.  Where we do act for more than one person, each person for whom we do work is joint and severally responsible for the instructions given to us and for payment of our fees and outlays in connection with that matter.
4. Communication by external E-mail
   We may communicate with you electronically unless you expressly request otherwise.  We may also receive electronic communications from you.  The electronic transmission of information by e-mail or otherwise has inherent risks and you understand that such communications may become lost, delayed, intercepted, corrupted or be otherwise altered, rendered incomplete or fail to be delivered.  We shall use our reasonable endeavours to ensure that electronic communications are free from viruses and any other material which may cause harm to any other computer system.  You undertake to do likewise with any electronic communication sent by you.  You accept that because electronic transmission of information cannot be guaranteed to be secure or error-free and that its confidentiality may be vulnerable, we shall have no responsibility or liability in respect of such matters other than arising from our bad faith or wilful default.
5. Timescale
   The nature of legal work often makes it difficult to estimate how long a matter will take to complete. We will advise you at regular intervals regarding the progress of your work and keep you informed of all significant developments.  If you are uncertain about what is happening at any time, please contact the solicitor responsible for your work. While we will endeavour to complete the matter as quickly and efficiently as possible, please remember that the speed at which work can be completed is affected by the co-operation we receive from third parties.
6. Conflict of Interest and Confidentiality
   We cannot act for two or more parties if they have conflicting interests.  Please advise us at the outset if you are aware of potential conflicts, which may arise.  We may need to decline your instructions if there is such a conflict.  If you or we become aware of a possible conflict in the course of our acting for you we may require to cease to act on your behalf.  You will remain responsible for our fees for the period to the date on which we cease to act.
   
   We treat all client information and documents as confidential and privileged unless you waive such confidentiality or we are required to divulge it by law.  In the course of our acting on your behalf it will be necessary for us to hold information, which you may give us or which we may obtain on your behalf from third parties.  In instructing us you agree that we may use such information in the ordinary course of acting for you.
7. Copyright and Third Parties
   All copyright in documents we produce is reserved to us.  Advice given and documents prepared are for your use only and may not be copied or used by any third party without our express written consent. The copyright for all photographs, floorplans, graphics, written copy and images belongs to McEwan Fraser Legal and use by others or transfer to third parties is forbidden without our express consent in writing.
8. Private Limited Companies
   If we are given instructions by a private limited company then, unless otherwise agreed with you in advance, it is a condition of our accepting these instructions that the directors are jointly and severally liable along with the company for payment of our fees and costs and any interest thereon.
9. Professional Fees, Expenses and Disbursements
   1. Our fees are based on a number of factors including: the complexity of the work or matter; the importance and value of the subject matter; the time spent on your work; the volume and importance of documents to be prepared or reviewed; the degree of urgency (including any significant overtime requirements); the seniority of the personnel involved.  Time spent by our personnel may include advising, meeting you and others, considering documentation, entering into correspondence, research, engaging other advisors, telephone calls, travelling and waiting time. Where a basic hourly charge rate has been indicated it is that which is then current.  As and when our hourly charge rates are reviewed the amended rate will be applied.  Photocopies, couriers etc and disbursements to third parties will be charged in addition.
   2. We are generally prepared to provide estimates of our charges or where appropriate a fixed fee quotation.  Any estimate that may be given will be a probable fee based on our experience of the work you have asked us to do.  It should be treated as a guide only and may not be regarded as an agreement to provide a service for a fixed fee or within a fixed time period, unless otherwise agreed.  If the work turns out to be more complicated or takes longer than we anticipated we may require to review our estimate or quotation to take account of this.  We shall inform you as soon as possible about this.  Estimates or fixed fee quotations will always be subject to review if the nature and/or amount of the work involved changes as the instruction proceeds.  Where possible we will provide you with a written updated estimate of costs as soon as it appears to us that an estimate or fixed fee quotation needs revision.  Unforeseen complications or developments may have cost implications and you should notify us of these as soon as you are aware of them.
   3. In certain types of work there is frequently considerable uncertainty as to the likely fee as this will be entirely dependent on what happens in the course of the conduct of the matter.  Consideration also needs to be given as to whether it makes economic sense from a cost point of view to pursue a particular matter.
10. Billing Frequency
    Our bills may be issued on an interim basis as work in progress accumulates or, on completion of, or at a natural break in the course of the relevant matter unless a separate agreement is reached with you in writing. As appropriate we may ask clients to make a payment on account of fees and outlays at the outset and during the conduct of the work.
11. Terms of Payment
    Accounts issued by us whether for final or interim fees or for outlays are due for payment on presentation. We reserve the right to charge interest at 1% per month (APR 12.68%) compound at monthly stops on any debit balance. We will not normally be prepared to continue acting on your behalf should fees remain outstanding over 30 days or if the credit limit on your account has been exceeded. If we cease to act for any reason, the full amount of work carried out and outlays incurred up to that date and presently unbilled will then be billed to you. We reserve the right to deduct fees from sums held by us on your behalf before we remit monies to you and to exercise a lien on all papers held by us in respect of our unpaid fees and outlays. Even where arrangements exist whereby you have an entitlement to recover fees from third parties, you are primarily responsible for payment of our fees in accordance with these Terms of Business.
12. Sales and Purchases of Property: Cleared Funds
    When you are selling property, we will deduct all outstanding costs together with our fees from the sale proceeds as soon as practicable after the date on which the sale is completed. When you are purchasing property, fees and costs will be payable by you by agreement, but no later than the date on which you become the owner of the new property. Financial transactions carried out upon your behalf will be effected only when we hold cleared funds.  We require payment prior to settlement of your own contribution towards the price and any outstanding outlays into MFL Clients Account with Clydesdale Bank plc, Plaza Branch, 50 Lothian Road, Edinburgh, EH3 9AN, sort code 82-62-27, account no. 90074498 by means of CHAPS transfer, or alternatively by means of a cleared Building Society cheque or Banker's draft.
13. Purchases of Property: Survivorship Clauses
    Where we are instructed by more than one person in a property purchase transaction we shall assume that the title to the property concerned is to be taken in the joint names of those persons in equal shares unless we receive instructions to the contrary.  We will not include survivorship clauses (clauses to the effect that on the death of one of the parties, their share of the property is to pass automatically to the survivor(s)) without specific instructions to that effect from all of the parties instructing us.
14. Sales and Purchases of Property: Post Settlement Claims
    In ordinary course the fee which we charge for a sale or purchase transaction does not include any work carried out for post settlement claims raised in terms of the missives.  However, as a gesture of goodwill we will normally write 2 to 3 letters on clients behalf to help to resolve any matters.  If further work in respect of such matters is instructed, we will charge for the work at our normal hourly rates.
15. Independent fee assessment
    The Auditor of Court is always available to provide a completely independent assessment of a fair fee for any piece of legal work carried out for a client.  On occasions, to ensure that a file has been correctly charged, we may voluntarily send the file to the Auditor.  Unless otherwise agreed with you beforehand, we will in that event be responsible for payment of the Auditor's fee.  Should you at any time be dissatisfied with the amount of a fee charged by us, then you are entitled to ask us to have the Auditor review your file and set an appropriate level of fee for the work done.  If the Auditor reduces the amount of our original fee we will only charge that reduced amount and the Auditor may require us to meet his costs.  If, however, the Auditor confirms that our fee is correct or undercharged, then you will be responsible for the Auditor's costs.
16. Outstanding Monies
    You are entitled to change solicitors at any time but you are responsible for the fees and any other outstanding payments due to us until the time of change.  We are entitled to hold any title deeds, files or other papers until payment.
17. Client Satisfaction
    If for any reason you are unhappy about the quality of service provided, or the amount of our fees, then you should in the first instance, take the matter up with the solicitor with whom you have been dealing.  Alternatively, should you prefer or if you feel your initial approach has not resolved the point, we would invite you to raise the matter with our Client Relations Officer.  He will ensure that any such complaint is fully investigated, and that you receive a detailed response within ten working days.  If you are still dissatisfied you are always entitled to take the matter up with the Client Relations Office at the Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh EH3 7YR.
18. Professional Insurance
    1. In relation to any instruction you give us and services we perform on your behalf, the aggregate liability of MFL and its partners, members, employees and agents for negligence or breach of contract on its or their part shall not exceed the lower of (1) the amount, if any, specified in any Letter of Engagement between us and you and (2) £2,000,000.  We shall not be liable for any indirect or consequential loss or damage (including but not limited to any loss of profits, goodwill or anticipated savings or other benefit(s). 
    2. We shall not be responsible for the consequences of, and shall not be liable for, any loss caused to you or any third party arising from any misleading, incomplete or erroneous instructions or information given by you or where information or instructions are not given timeously.  In respect of a claim by such a third party in such circumstances you will wholly indemnify us in respect of that claim.
    3. In the event that you suffer or incur any loss, cost, damage or expense resulting from or arising from any matter carried out for you then you accept that your claim will lie solely with MFL and you agree not to bring any claim personally against any individual partner, member, employee or agent of MFL("MFL Individuals") and the benefit of the limitations and exclusions of liability set out or referred to in these terms of business shall be held by MFL as agent and trustee for each of the MFL Individuals.
19. Clients Funds
    We are members of the Law Society of Scotland and subject at all times to its rules and regulations.  In accordance with these, all funds received by us on our clients' behalf are held separately from our own funds in clients' accounts.
20. Taxation
    We will assume, unless you notify us to the contrary, that you have taken appropriate advice as to the taxation implications of any matter.  If taxation may be a relevant issue then you should seek separate tax advice.
21. Key Dates
    Unless we have agreed with you otherwise, we are not responsible to log, diarise and remind you of key and/or important dates which may require action by you.  These are your own responsibility and you should have adequate systems in place to ensure they are not missed and/or overlooked.  This also applies to key dates which are dependent upon external factors and/or events of which we may not be aware.  However, this does not apply to any key dates which are directly covered by your instructions to us and which fall within the scope of our work to be performed for you.
22. Data Protection
    MFL is a data controller within the meaning of the Data Protection Act 1998. While acting for you, we may acquire personal data about you. We are committed to complying with our responsibilities under the Data Protection Act 1998 in respect of such personal data. By engaging us to act for you on this matter, you consent to our collecting and storing certain personal information which will not be used other than in the normal course of providing advice to you. This may include the disclosure of personal information to our business partners or third parties, including by electronic means, as would be necessary for the completion of your work.  We may contact you from time to time to inform you of products or services that may be of interest to you. You should notify us in writing if you do not wish to receive any further contact or if you wish to receive details of the personal data held about you. If you do not consent to the disclosure of your personal data, please contact us immediately. We shall retain personal data for as long as is required in accordance with good business practice and the firm's policy on document retention. We shall use our best efforts not to retain information about you once it is no longer required.
23. Records
    At the end of the transaction or litigation we will keep our files and papers (except for any of your papers which you ask to be returned to you) for no more than 10 years. We keep the file and papers on the understanding that we have the authority to destroy them 10 years after the date of the final bill we send for the matter. We shall not destroy documents you ask us to deposit in safe custody.  We shall, however, pass on the relevant costs to you. We do not normally make a chare for retrieving stored papers or deeds in response to new or continuing instructions to act for you.  However, we reserve the right to make a charge based on our then current hourly rates for the time we spend reading papers, writing correspondence and/or carrying out other work necessary to comply with your instructions.
24. Whole Agreement, Variation of Terms and Acceptance of Terms
    These terms and conditions, together with the letter accompanying them and any enclosed schedule of costs, will form the whole agreement between us to carry out the work referred to in that letter.  We are entitled to vary these terms of business at any time by giving you fourteen days prior written notice.  Your continuing instructions to us will confirm you acceptance of these terms of business.
25. Applicable Law
    These terms and conditions are governed by the Law of Scotland and are subject to the jurisdiction of the Scottish Courts.