MACFARLANE & CO.
TERMS OF BUSINESS
These are the Standard Terms of Business applicable to the work detailed in the accompanying Letter of Engagement for clients of Macfarlane & Co. They supplement the Letter of Engagement, which incorporates these terms. In the event of any inconsistency between the Letter of Engagement and these Terms of Business, the Letter of Engagement shall prevail.
Instructions may be given to us verbally or in writing. We may well ask you to confirm your instructions to us in writing. If you instruct us by telephone or in a meeting, any written communication sent by us confirming the instructions will be deemed to set out accurately the instructions given unless you write immediately in contradiction.
By acceptance of these Terms of Business you are deemed to consent to communication by fax and/or e-mail.
If we are given instructions by a private limited company or partnership then, unless otherwise agreed with you in advance, it is a condition of our accepting those instructions that the Directors or Partners are jointly and severally liable along with the company or partnership for payment of our fees and outlays.
The Solicitor who will be dealing with your transaction on a day to day basis is shall be set out in the accompanying Letter of Engagement however we do reserve the right where necessary due to illness, holidays or fluctuating work loads to allocate the work to another member of the firm to ensure it receives due attention.
It is an important rule governing our profession to keep confidential all client matters. We shall do so unless you authorise us to reveal those matters or we are obliged to do so by operation of law or order of the Court.
Any estimate given will be a probable fee based on our experience of the work involved in a typical transaction of the kind you wish us to complete. If the work turns out to be more complicated or takes longer than we anticipated then we may require to increase our estimate in line with this. We will inform you as soon as possible about this.
Our current hourly rate is £300 plus VAT. Fees are generally charged on the basis of the time spent on the work and may, at our discretion, include an element for responsibility which can vary according to a number of matters such as urgency, importance of the work to you, amount or value of money or property involved, complexity, difficulty or novelty of the matter, or length, number or importance of documents or papers. Charging rates are reviewed periodically and in the event of these being altered we shall advise you of the alteration.
We may require you to settle outlays during the course of dealing with your business. Large outlays will require to be paid to us before they are due to be paid out by us.
Land & Building Transaction Tax (“LBTT”) and Additional Dwelling Supplement (“ADS”)
LBTT is a tax applied to residential and commercial land and buildings transactions (including commercial purchases and commercial leases) where a chargeable interest is acquired. The percentage rate for each band in LBTT is applied only to the part of the price over the relevant threshold and up to the next threshold.
ADS was introduced on 1 April 2016 and is a new LBTT supplement on purchases of additional residential properties in Scotland (such as buy-to-let properties and second homes) of £40,000 or more. The ADS applies to most purchases of additional dwellings by individuals in Scotland where, at the end of the day that is the effective date of the transaction, a buyer owns two or more dwellings and is not replacing their main residence. It also applies to most purchases of dwellings by non-natural persons (e.g. companies, partnerships). More information can be found on the Revenue Scotland website.
If LBTT or ADS is payable following the settlement of your transaction, we shall prepare and submit any LBTT and ADS Returns to the Revenue Scotland. Please note, a LBTT return is required for transactions where the price is over £40,000 even though there may be no tax payable. We will require a note of your National Insurance Number to submit the return on your behalf.
We will issue our account either at the end of a matter or at regular intervals. Payment is due within thirty days of the date of the account. If you do not pay our account on time, we reserve the right to stop working for you and to charge you for the full amount of work we have done for you. We also reserve the right to charge interest on accounts unpaid after 30 days at the rate of 4% above the Royal Bank of Scotland base rate from time to time.
Assessment of Fees by Law Accountant
In certain matters such as Executry and Trust Estates, our file and papers will be sent to an Independent Law Accountant to assess a fair fee. However, we reserve the right to refer any matter to the Law Accountant for this purpose. The Law Accountant’s fee will be charged as an outlay in the matter.
Assessment of Fees by Auditor of Court
Fees which are disputed may be subject to independent assessment by an Auditor of Court. This process is known as “taxation”. In such a case the file is passed to the Auditor who will fix what he considers to be a fair and reasonable fee in all the circumstances, including those factors outlined above. The Auditor will determine the fee charged and can determine who pays their costs.
Domestic Conveyancing Transactions
In property transactions, our fees will normally be due following completion of the transaction but there may be occasions where our fees will be due prior to settlement. If funds are required from you, payment will be expected prior to settlement, allowing ten working days time to clear any payment by cheque. Where sufficient funds are available at settlement, we will deduct our charges from such funds unless otherwise agreed. In property transactions, any work carried out after the date of entry is liable to an additional fee calculated at our normal hourly rates. For the avoidance of doubt, this would include any post-settlement claims. All work carried out in transactions which do not proceed to completion may be charged at the normal hourly rate.
In house purchase transactions, it will be your sole responsibility to arrange buildings’ insurance in respect of the property purchased. We shall take no action in that regard unless required to do so by your mortgage lender.
We may receive payment of commission in respect of Property/Local Authority Searches. We are entitled to retain this commission without reference to you.
VAT is chargeable on our accounts at the current applicable rate.
Incidental Financial Business
We may carry out incidental investment business for you and, as such, are required by The Law Society of Scotland to advise you of the following terms of business:-
Our Firm is licensed by the Law Society to carry out incidental business activities. These activities are limited in scope. For example, the investment advice provided will be obtained from a Firm of Stockbrokers or in the case of a Bond of Caution or Indemnity Policy the advice will be obtained by an Insurance Company. Our Firm will not comment on their advice.
(b) Our Firm is covered by Professional Indemnity Insurance under the Law Society of Scotland’s Master Policy and also The Scottish Solicitors Guarantee Fund.
In general, we will not give advice on issues relating to tax or tax planning. Any work that we do for you may have implications on your liability to pay tax or necessitate the consideration of a tax planning strategy. If you have any concerns about the tax implications involved, you should consult an accountant or other qualified tax advisor. If you wish advice on such matters, please let us know and we can endeavour to refer you to a specialist.
Contaminated Land Law
Contaminated Land Law is a particularly specialised area of law and in accordance with the stance adopted by many firms we confirm we will not be advising on contaminated land aspects of any instructions which we receive. If you wish advice on such matters, please let us know and we can endeavour to refer you to a specialist.
When we hold funds on your behalf, we are required in terms of the Solicitors (Scotland) Accounts etc. Rules to invest these funds on your behalf where interest likely to be accrued on moneys held on your behalf exceeds £100. The funds will be placed on deposit with the Scottish Building Society or another banking institution at our discretion. Interest earned on these funds will be paid to you. Where interest is not likely to exceed £100, the funds are held in our Client account and interest is not payable to you.
Payments by cheque should be received by us at least ten working days before the funds are to be used to allow clearance through the banking system. In the event that funds are directly transferred out of our clients Bank Account in connection with your transaction, the Bank will make a charge which will change from time to time to reflect changes in charges made by our Bank to us. Funds may be transferred into our Clients Bank Account and details of our Account will be made available on request. Please note that for security and other reasons, we do not accept more than £500 in cash.
You are entitled to change solicitors at any time but you will remain responsible for all fees, VAT and outlays due to us up until the time of your intimation to us requiring us to cease further work. We are entitled to hold your title deeds, files or other papers until payment has been received in full.
Conflict of Interest
We cannot act for two or more parties if they have conflicting interests. If a conflict of interest arises in carrying out your instructions, we will advise you accordingly. We may be required to decline to act further for you.
Storage of Papers & Deeds
Where stored papers, wills, deeds or securities are retrieved from storage by us in connection with continuing or new instructions to act in connection with your affairs, normally no charge will be made for such retrieval. However, we reserve the right to make an administration charge based on time spent in retrieval and any perusal, correspondence or other work necessary to comply with the instructions given by you or on your behalf.
Files are stored for the period of years recommended from time to time by the Law Society of Scotland. Thereafter, unless we decide it is appropriate for us to retain them for a longer period of time, they will be destroyed. This does not apply to the storage of title deeds, title documents, wills and trust documents.
Our aim will always be to deliver you an efficient, timely and effective service. If you have any difficulties or if you are not satisfied with the work which has been done for you we would ask that you contact Alison Macfarlane, our Client Relations Partner.
If our Client Relations Partner has been unable to resolve your complaint, service and conduct complaints against solicitors can be made to the Scottish Legal Complaints Commission. The Scottish Legal Complaints Commission can be contacted at the following address:-
0131 201 2130
0131 201 2131
Scottish Legal Complaints Commission
The Stamp Office
10 - 14 Waterloo Place
Alternative Dispute Resolution
We recognise that Alternative Dispute Resolution Regulations have implemented ADR/EDR Directive 2013/11/EU to promote alternative dispute resolution as a means of redress for consumers in relation to unsatisfactory services. We have however chosen not to adopt an ADR process, and if you have any concerns about the services you receive from this firm you should contact the firm’s Client Relations Partner.
Money Laundering Regulations and Proceeds of Crime Act
In order to comply with the Money Laundering Regulations we are required to carry out various Anti-Money Laundering checks. These include confirming your identity, the specific source of your funds and your source of wealth in terms of the transaction. This applies to every person who has a financial interest in the matter. For corporate entities such as companies or partnerships, we are required to confirm the identity of all directors, partners, trustees, controllers of companies or firms and connected shareholders. In most cases, this will involve passing certain personal details (i.e. your name, address and date of birth) to an external organisation specialising in identity verification. Such external organisations will use personal details for verifying your identity only and will retain the search details as evidence for our records but not for any other purpose. By instructing us you consent to us using such external organisations for verifying your identity and to us retaining such information / copies of your ID for a period of 10 years. Any costs incurred by us associated with verifying your identity will be payable by you. In addition and if required for our records, we may request to see two current forms of ID - photographic (i.e. passport or driving licence) and address (recent utility bill, council tax notice, mortgage or bank statement) - the solicitor acting for you will discuss this with you.
If we are to receive funds on your behalf from a third party (other than a bank or another firm of solicitors) we require to carry out the same ID verification and Anti-Money Laundering checks for that third party. If you are an existing client we will need to run a identity check or refresh your ID every 3 years and if you change your address or name or, in the case of a corporate entity there is a change of identity, structure or beneficial ownership you will need to advise us and if requested provide us with the relevant ID or evidence.
Source of funds and nature of transactions:-
The Money Laundering Regulations mean we must fully understand the nature of and purpose of any transaction in which we are instructed to act and verify the source of any funds received from you. This means for instance that if you are sending us money by way of a bank transfer we will need to see a copy of the receipt you receive from your bank detailing the name and account number of the bank account from which the funds were sent and in certain circumstances we may require to see a copy of the bank statement for that account.
In addition we must be satisfied as to the source of wealth of any client instructing us and we may need to ask you for an explanation of that source. Please note that when funds are being received either directly or indirectly from a third party (ie. a gift from a parent) it will be necessary to obtain both identification and evidence as to the source of funds and wealth in respect of that third party. In the event that additional work is required to investigate the source of funds/wealth, we reserve the right to charge additional fees. We will request all the relevant information from you as soon as possible at the outset. If this information is not provided as agreed, your transaction may be delayed or we may have to withdraw from acting for you. Identity, source of funds and source of wealth checks must be updated and/or re-confirmed regularly for existing clients, so if we are working with you over a period of time and/or over a number of transactions please be aware of this.
You should also be aware that we are required by law to report to government authorities any evidence or suspicion regarding money laundering or proceeds of crime and that we are explicitly prohibited from notifying you of the fact that any such report has been made.
We reserve the right to withdraw from acting for you if you fail to provide us with the information requested and required in connection with our Money Laundering procedures. We are required to report any reasonable suspicion which we have about the source of funds to be provided for any particular transaction to the National Crime Agency (“NCA”). Subject to legal privilege we are required to report to NCA any reasonable suspicion which we have about any criminal activity on your part or indeed on the part of others connected to any transaction or proceedings in which we are instructed. If we make such a report we are obliged not to inform you until authorised to do so by NCA nor can we proceed with your business. We cannot advise you as to why we are unable to progress you transaction or case. NCA has seven days to make a decision about whether or not the transaction or case can proceed and thereafter it can impose a further thirty day holding period. It is vital therefore that at the outset of your dealings with us that you provide us with full, frank and clear instructions.
If we are also acting for your proposed lender in a transaction, we have a duty fully to reveal to your lender all relevant facts about the purchase and mortgage. That includes any differences between the mortgage offer of loan and information we receive during the transaction including any cash back payments, discount schemes and the source of your deposit.
Macfarlane & Co is registered under the Data Protection Acts and a copy of any information held by us relative to you may be obtained on a reasonable request. See attached Policy Notice.
In any transaction or delivery of legal services to you, our liability and the liability of the individual partners for any acts of negligence on the part of the firm, its partners and/or its employees is limited to the lower of the value of the transaction and £2,000,000 (being the extent of our professional indemnity cover) unless we specifically agree otherwise in writing. It may be possible to arrange additional cover at your written request and subject to negotiation with you on the cost thereof.
We will 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.
These terms and conditions shall be governed by Scots Law and are subject to the exclusive jurisdiction of the Scottish Courts.