1.1. The purpose of this document is to clearly outline the basis upon which we will carry out the work necessary for your matter and is intended to record the terms of a binding agreement between us with regards the provision of services to you. It is therefore important that you carefully read these Terms of Business. Once read please sign and return the enclosed copy of our acceptance form. Please contact us if you have any questions.
1.2. These Terms of Business supersede any earlier Terms of Business which may have been agreed with you and, in the absence of express agreement to the contrary, shall apply to the services and all subsequent services which we provide to you.
1.3. We may vary these Terms of Business from time to time in accordance with clause 22.
1.4. Your attention is specifically drawn to clauses 6, 9 and 17.
People responsible for your work
2.1. Your matter will be supervised by a Partner of Viberts.
2.2. The Partner responsible may entrust work on your matter to other suitable staff members so that it may be dealt with more expertly, efficiently or economically depending on the nature of your instructions and our business requirements.
2.3. We try to avoid changing the people dealing with your case but if a change cannot be avoided we will notify you and explain why it is necessary.
Services, instructions and communications
3.1. We have a professional duty to exercise reasonable skill and care in providing services to you.
3.2. We are qualified to provide legal advice and services in relation to Jersey law and unless specifically agreed in writing our services are limited to the provision of legal advice on Jersey law only.
3.3. If the matter on which you instruct us requires advice on the laws of more than one jurisdiction we may instruct an external law firm or firms.
3.4. Nothing we write or say, be it as advice, opinion or comment, which relates to the laws of any jurisdiction other than Jersey or to any non-legal matter may be relied upon.
3.5. If required, we may be responsible for engaging counsel, experts or other professionals to act on your behalf. If this is appropriate on your matter, it will be fully discussed with you and an indication of likely cost will be obtained. Such counsel, experts or other professionals will be engaged by Viberts as your agent and you will be responsible for their charges, in addition to our own. In some cases, we will require you to pay for the fees of such counsel, experts or other professionals in advance of the work being carried out by them. Such payments will be placed on a client account and used to pay the relevant third party in accordance with their terms of business. Viberts shall not be responsible for any act or omission of such counsel, experts or other professionals.
3.6. Where you provide us with a power of attorney we may act on that power in accordance with its terms consistent with your general instructions and without the need for your specific written instructions. Nevertheless, we reserve the right to request specific written instructions and may at our discretion refuse to act without such instructions.
3.7. Our ability to provide services to you is dependent on you providing us with timely and relevant information (including electronically held information) and documents and keeping us informed of any material changes in your instructions, knowledge or circumstances or any information having a bearing on your matter.
3.8. Our ability to provide services to you is dependent on you ensuring that all information provided to us is not misleading and is complete in all material respects so that we are fully informed about all relevant matters. The relationship between lawyer and client is one of utmost good faith and our ability to provide services will be limited unless you disclose to us all information and documents that are relevant to the services being provided.
3.9. If general advice is sought, its application to any particular circumstances may be affected by features of those circumstances of which we are not aware. Accordingly, in relation to any particular transaction or context, specific advice should always be sought. We do not accept any responsibility for the reliance on our advice for a different purpose or in a different context.
3.10. Unless otherwise expressly agreed in writing, any advice, documentation or other material which we provide in relation to the services is strictly limited to the matters stated in it and does not apply by implication to other matters.
3.11. Unless otherwise expressly agreed in writing, any advice, documentation or other material which we provide in relation to the services is exclusively for your benefit and may not, without our prior written consent, be (i) relied upon by another person; (ii) disclosed by you, except to those who normally have access to your records on the basis that they make no further disclosure; or (iii) quoted or referred to in a public document or published in any publication.
3.12. We may rely on any instructions or requests made or notices given or information supplied, whether orally or in writing, by any person whom we know to be or reasonably believe to be authorised by you to communicate with us for such purposes. We may receive information from you or from other sources in the course of delivering our services.
3.13. We will keep you informed of progress in relation to the services and you are entitled to receive a progress report on request.
Information and confidentiality
4.1. We shall keep confidential all information and documents concerning the matter in respect of which we are requested to provide services and any transaction or matter involving you unless: (i) we are required to disclose information under the laws and regulations of Jersey or by order of the Jersey courts or any other courts of a competent jurisdiction or the failure to make such disclosure would, in our opinion, be prejudicial to us, our staff or any agents; (ii) we are authorised to disclose any information by you; (iii) where we are working with other advisers on your behalf, unless you expressly otherwise instruct us, we will disclose such information to them in furtherance of the provision of the services as in our view appropriate; (iv) for disclosures to our auditors or other advisers for the purposes of our professional indemnity insurance; (iv) the information concerned is already in the public domain; (v) it is necessary or desirable to disclose the same to any other partnership or company owned by or associated with Viberts; or (vi) it is necessary to or desirable to disclose the same to defend any claims against us.
4.2. We are unable to receive and act upon any confidential information which has been obtained by you without the consent of the rightful owner of the confidential information, regardless of whether this information should be disclosed in the ordinary course of your matter by any other party.
4.3. If a disclosure is made pursuant to paragraph 4.1 (i), we may be obliged not to carry out any further work on the matter or transaction without any requisite consent from the competent authorities. Any such disclosure may be made without prior reference to you and you agree that in some circumstances we may be precluded from disclosing certain information to you. We will not accept liability for any loss or damage that you or any third party may suffer or incur as a consequence of any such disclosure.
4.4. If any information held by us is or may be subject to privilege and you decide not to waive such privilege, you are responsible for our costs incurred in seeking to preserve and maintain privilege for you if such privilege is challenged, including our litigation costs, whether ours or those of an opposing party or parties, if such costs are awarded against us.
4.5. To ensure the safety and security of our premises and our staff we may use CCTV in our building.
5.1. We are registered as a controller of personal data in relation to our clients and contacts under the Data Protection (Jersey) Law, 2005. By instructing Viberts you consent to our processing of personal data obtained from you during the course of your instructions to us. Processing means obtaining, recording and holding your personal data in any form whatsoever. You may at any time request access to any personal data which we hold about you. You acknowledge and agree that we may discharge our obligation without providing copies of all or any personal data. If you believe that any personal information held by us may be incorrect please contact the Partner responsible for your matter to correct or update your details. We reserve the right to use any data for marketing and promotion of services offered by Viberts and any of its subsidiaries or associated companies unless requested in writing by yourself not to do so.
Fees and disbursements
6.1. Unless otherwise agreed in writing, the fees we charge will be based on the time we spend dealing with your matters. Time spent includes but is not limited to: meetings with you and others; considering; preparing and working on papers; correspondence; making and receiving telephone calls; time spent travelling and time spent attending court. Wherever possible, we will give an estimate of our likely fees for the services being provided. Any estimate given is not a fixed quotation. We will inform you if any difficulties arise or if anything occurs which makes it necessary to revise an estimate and we will regularly review the estimate.
6.2. Time spent on a matter will be recorded by all persons dealing with it and the total time recorded will be one, but not the only, factor taken into account in assessing the level of fees to be charged. In making this assessment we reserve the right in calculating the amount payable by you, to take into account a number of factors including but not limited to: the complexity of the issues raised; the urgency with which the action must be taken; the importance of the matter to you; the expertise or specialist knowledge that your matter requires; the quantity or length of documents we are required to read, review or prepare; and, if appropriate, the value of the property or subject matter involved.
6.3. Details of all of Viberts’ hourly rates are available on request.
6.4. Disbursements and out of pocket expenses will be charged in addition to any fees. These include but are not limited to: all costs in engaging expert advisers; travelling expenses where appropriate; court fees; printing, copying and scanning charges; telephone calls; fax charges; couriers; research costs; and all other out of pocket expenses incurred on your behalf.
6.5. We reserve the right to request one or more payments on account of our anticipated fees and/or disbursements prior to commencing work on the matter or incurring costs on your behalf.
6.6. Where we have been instructed by you jointly with one or more parties we will hold all parties jointly and severally liable for all fees unless any apportionment between each party has been agreed in writing between each party and us in advance.
6.7. If you are acting as agent or advisor to your own client, unless otherwise agreed by us in advance in writing, we shall continue to look to you or your firm for payment of our fees and the fee note will be made out in your name. We expect payment in full on a timely basis whether or not you are reimbursed or put in funds by your client.
6.8. Where we are obliged to charge goods and services tax (GST) or any other similar tax in respect of any services which we provide, we will add the relevant tax to our charges and disbursements at the applicable rate from time to time in force. All estimates or quotations given by us (or on our behalf) are given exclusive of disbursements and exclusive of any GST or similar tax unless otherwise expressly stated.
7.1. Viberts will provide invoices and/or requests for payment for fees and disbursements, including interim fees and disbursements to you at regular intervals for work carried out during the conduct of your matters. Terms and conditions relating to payment will be set out on the relevant invoice/request for payment.
7.2. If an invoice/request for payment remains unpaid beyond the due date Viberts reserves the right to charge interest at 2 per cent above the Bank of England base rate per calendar month until payment is made in full. Furthermore Viberts reserves the right to decline to act any further, to come off record as acting for you and to charge you for the amount of work done to the date of our ceasing to act. Any time or costs incurred by Viberts in taking these steps or in collecting overdue fees, disbursements or third party charges will be charged to you.
7.3. On ceasing to act any further as a result of fees or disbursements being overdue we will not answer any correspondence or attend to any filings of documents or other matters which may need to be attended to on your behalf and we shall not incur any liability as a result of our ceasing to provide services in these circumstances.
7.4. It is the practice of Viberts to request clients pay sums of money from time to time on account of their anticipated fees and disbursements. Such payments will help to avoid delays in the progress of your matter. Requests for payment on account are due on issue. It is important that the first payment on account request you receive is paid promptly to ensure we are able to start work on your matters.
7.5. Where a payment on account received is greater than any outstanding invoices raised by Viberts any surplus will be deposited in a separate client account. We will provide statements to you at regular intervals of invoices raised, payments received and any balance due during the conduct of your matters.
7.6. We accept payment of an invoice/request for payment by credit card and debit card. If you pay by credit card a fee is payable by us to our card processing company. We will charge a fee as a disbursement for all payments made by credit card. There is currently no charge for payments by debit card.
8.1. All monies and other liquid assets collected by Viberts on behalf of a client whether directly or indirectly will be held in a separate client account (either a current or deposit account as appropriate). Client money means money held or received for a client or as a trustee.
8.2. You agree that Viberts has the right at any time to set off and apply any money whatsoever held or received by Viberts on your behalf or for your benefit in relation to any matter, whether held on client account or deposit account and whether in sterling or in any other currency, against any of your liabilities to Viberts whatsoever, including all fees, costs, charges and expenses incurred in relation to this matter or in relation to any matter, whether such liabilities are or may be joint or several or primary or contingent.
8.3. All monies held in a client account are entitled to earn a fair sum of interest when appropriate. The interest policy of Viberts takes into account a number of factors including but not limited to: the amount held; the length of time for which cleared funds were held; the need for instant access to the funds; and the rate of interest payable on the amount held in an instant access account at the bank or building society where the client account is kept. Our policy is written in accordance with the Law Society of Jersey Code of Conduct. A copy of our policy is available upon request.
8.4. Unless required by law or otherwise agreed it shall not be our responsibility to comply with any reporting requirements which may arise in relation to the receipt of interest on monies held on a client account.
8.5. We shall account to you for interest earned on your money in accordance with these terms, less any applicable income or retention tax where required by law to be deducted.
8.6. In the event of any bank at which a client account is held being subject to or undergoing any form of “insolvency” (such as désastre, liquidation, administration or any similar process), we shall not be liable for any losses, damages, liabilities, claims, costs and expenses howsoever arising from the insolvency, including without limitation, the loss of any or all of the monies held by the client account bank.
8.7. We shall not be responsible for seeking or undertaking any due diligence on any bank’s financial position.
Contentious matters – costs warning
9.1. It is important that you understand that you will be responsible for paying our invoices. Even if you are successful in a dispute, the other party may not be ordered to pay all your costs and charges or these may not be recovered from them in full; if this happens you will have to pay the balance of our fees and disbursements. If the other party is legally aided, you may not get back any of your costs and charges, even if you win the case.
9.2. In addition, it is crucial that you should also be aware that in some circumstances, the court may order you to pay the other party’s legal costs and expenses, for example if you lose your case. The money will be payable in addition to our costs and disbursements. These costs almost invariably run into thousands of pounds and should always be borne in mind when considering the merits of your case and whether it should proceed further. We will advise you as necessary of whether such risks may outweigh the possible rewards arising from pursuing your claim further.
10.1. When considered appropriate, we will communicate with you by way of letter, fax, e-mail or telephone, or any combination, at the address or number last given to us by you in communication generally. We do not encrypt messages unless by prior arrangement and cannot guarantee the security of any transmission in any event and accept no responsibility or liability in respect of the same. If you do not wish us to communicate with you by any particular method then you must instruct us accordingly. We may communicate electronically with you and other parties in relation to the services we provide. However, the electronic transmission of information cannot be guaranteed to be secure or virus or error free and such information could be intercepted, corrupted, lost, blocked, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. We both recognise the systems and procedures cannot be a guarantee that transmissions will be unaffected by such hazards. We will need to access electronic information and resources in carrying out our services including via an internet connection for remote access.
10.2. We will not be liable for misdirection, or any defect referred to above and you agree to accept these risks. We reserve the right to record and/or monitor telephone calls.
Legal representation for more than one party
11.1. Where we are asked to act for more than one party to a transaction or in a matter where their interests may conflict, we will need all parties to consent in writing to us acting. Where we have identified to you that we are acting on behalf of another party to your matter, your signed acceptance form to these Terms of Business shall amount to your consent for these purposes.
Client due diligence and anti-money laundering procedures
12.1. Under the anti-money laundering regulations in force in Jersey it is the duty of all law firms to disclose to the authorities their knowledge or suspicions of criminal activity. Further to this we are required to carry out checks in respect of certain services which are classified as the conduct of financial services business.
12.2. In order for Viberts to comply with this anti-money laundering legislation we apply such checks and procedures in respect of all matters in which we are instructed. We will be unable to carry out any work in this matter until such time as these checks have been complied with. We therefore require the following:
12.2.1. Sight of an up to date passport or driving licence (for individuals). Alternatively you may provide us with a certified true copy of the original, provided any copies are certified by a suitably qualified person whose identity is properly verifiable. Examples include any of the following individuals who hold a senior position:
- banker or other member of a regulated financial institution
- member of the judiciary or civil servant
- police or customs officer
- officer of an embassy, consulate or high commission
- lawyer, notary public or actuary
- accountant or tax advisor
12.2.2. Sight of an original utility bill or bank statement dated within 3 months of the date of instruction, which shows your present residential address or registered place of business; and
12.2.3. Sight of a registration card as proof of your residential status (property transactions only).
12.3. When you are acting as a trustee or on behalf of a partnership, company or other entity, we will require identification and address information and verification in respect of legal status, controlling persons, persons with beneficial interests and persons authorised to give us instructions.
12.4. We may be required from time to time to obtain any other information as a result of changes in the anti-money laundering legislation or as maybe required by us to apply on-going checks and procedures.
12.5. We require these documents and the signed acceptance form to these Terms of Business before we commence work on your matters. Any failure to provide the requested information entitles us to terminate our client relationship with you and we accept no responsibility or liability arising directly or indirectly as a result of our need to do this. Any information or documentation provided to us in order to enable us to operate such checks and procedures may be subject to disclosure and production pursuant to orders having legal effect in Jersey.
12.6. In certain circumstances we are required to disclose information and documentation in respect of anti-money laundering procedures which we have undertaken in respect of our clients to third parties such as banks providing services to clients. By instructing us in any matter and providing such information as we require, you will be taken to have consented to our onward disclosure of such information to third parties where appropriate.
12.7. We reserve the right to require proof of source of funds and/or confirmation of the nature and source of wealth for all receipts of monies from clients directly or from third parties for payments on behalf of clients.
13.1. Should you at any time become unhappy with any aspect of our service please write to the fee earner responsible for your matter in the first instance. If that does not resolve the problem to your satisfaction or you would prefer not to speak to the fee earner directly responsible for your matter you can contact the person responsible for supervising your matter as detailed in your engagement letter who will initiate the firm’s formal complaints procedure. A copy of Viberts’ Client Care Policy and complaints procedure is available on request. We shall investigate your complaint promptly and carefully and do what we reasonably can to resolve the difficulties.
13.2. In addition, any complaint concerning costs may be referred by either party to the Law Society of Jersey.
Termination of instructions
14.1. We expect to continue to act in respect of any matter in which we have accepted instructions from you until the matter is completed unless either of us brings those instructions to an end earlier. You may terminate your instructions to us in writing at any time. We will not normally terminate instructions unless a conflict of interest arises or we consider that it would not be in your best interests for this firm to continue to represent you. Examples of circumstances where we may decide we cannot continue to represent you include, but are not limited to: if you fail to follow our advice and we consider your decision to be unreasonable; if you fail to provide sufficient instructions or fail to use your best endeavours to give instructions to us; or you fail to settle accounts with us in accordance with these Terms of Business or any agreed variation thereof.
14.2. We will not be responsible after completion or termination for reminding you of any specific dates within any agreement that fall due.
Storage of data, files and papers
15.1. After termination or completion of the provision of services, we are entitled to retain all papers and documents which have come into existence in the course of providing the services until all fees and disbursements have been settled in full.
15.2. Subject to payment in full of all fees and disbursements, we will, on your instructions provide originals (or, if so requested, copies) of any documents belonging to you which we are holding or which we have under our control and which have come into existence while we provided services. We reserve the right to retain copies of such original documents and we reserve the right to request you pay our reasonable copying charges in advance for providing any such documents.
15.3. Any documents created for our own purposes while we provided services, such as internal memoranda and attendance notes shall belong to us and we shall not be obliged to hand over originals or copies of such documents to you or any other adviser appointed by you unless ordered to do so by a court of competent jurisdiction.
15.4. All data, files and papers will be stored in an appropriate storage facility chosen by Viberts, which for the avoidance of doubt can include storage solely in electronic form. We shall retain such documentation for a period of 11 years from the date of termination of a particular matter. On expiry of this period Viberts reserves the right to destroy your files.
15.5. Notwithstanding our agreement to retain documents, whether during or after the provision of our services, we will not be liable for any loss, destruction or damage to such documents howsoever caused.
15.6. We do not normally charge to retrieve files from storage on your instructions or request in relation to an ongoing or new matter. However, if you or a third party with your agreement makes a request for information concerning a matter in which we are no longer acting, we reserve the right to charge for fulfilling that request.
15.7. In the event of a failure to pay any amount due to us, we shall have a lien over and the right not to release from our possession or control, all or any documents or assets (including those held for (i) you) (ii) any company or other body in common ownership with you, or (iii) any person connected or affiliated with you) until such time as all amounts are discharged.
Intellectual Property Rights
16.1. We retain all copyright and other intellectual property rights in all documents and other works developed, designed or created by us either before or during the course of carrying out the services, including systems, methodologies, software, knowhow, and working papers. We grant you a non-exclusive, non-transferable licence to use such documents or other works solely for the purpose for which they were created. If you do not pay us in full for the services in accordance with these Terms of Business we may, on giving notice to you, immediately revoke that licence and only re-grant it to you once full payment has been made.
Limitation of Liability
17.1. To the extent possible under the laws and regulations of Jersey, we limit our aggregate liability (if any) to you and all associated persons in respect of all claims by you and all associated persons of any sort whatsoever (including interest and costs) for breach of contract, tort, breach of duty, fault or negligence or otherwise, howsoever arising out of or in connection with our services to the lowest of:
17.1.1. that proportion of such loss, liability or damage suffered by you or any other person after taking into account any of your or any other person’s contributory act or omission (including any contributory negligence) and any amount which you or any other person would have been entitled to recover from any other advisor or party in the absence of any exclusion of limitation of liability agreed with such advisor or party;
17.1.2. the amount specified by us in any letter of engagement from us to you or to any person acting on your behalf, in relation to our services; or
17.1.3. if no amount is specified, an amount not exceeding £2 million.
17.2. You agree that any claim of any sort whatsoever arising out of or in connection with our agreement shall be brought only against the firm and that no claims will be brought personally against any other persons involved in the performance of the services who you acknowledge do not assume personal responsibility to you.
17.3. You agree that no action or proceedings under or in respect of this agreement or our services shall be brought against Viberts after the expiry of 3 year from the date services are last performed in respect of the matter to which the action or claim relates.
18.1. We shall not incur any liability for any failure or delay in the performance of the obligations under the terms of our agreement arising out of or caused directly or indirectly by circumstances beyond our reasonable control. In the event of any such occurrence we will notify you as soon as reasonably practical and shall use our best endeavours to resume performance as soon as reasonably possible.
19.1. You will indemnify us on a full and unqualified basis and undertake to hold us harmless from and against all and any claims, liabilities, demands or proceedings howsoever brought, threatened or established against us in any jurisdiction and against all losses, costs, charges, expenses, interest and taxes which we may suffer or incur or which in any such case arise, directly or indirectly, out of or in connection with your instructions provided that nothing in the paragraph will require you to indemnify us in respect of any liability which may not by law be limited or excluded.
20.1. No failure, delay or forbearance by us in the exercise or enforcement of any rights available to us shall amount to or be deemed to be a waiver of any such rights.
21.1. Each paragraph, term or provision of these Terms of Business constitutes a separate and independent provision. If any paragraph, term or provision is determined by any court or authority to of competent jurisdiction to be void, illegal or unenforceable, the remaining paragraphs, terms and provisions shall continue in full force and effect.
Variation and publication of these terms
22.1. We reserve the right to vary these Terms of Business from time to time including during the course of the provision of our services in any particular matter. Where we do vary these Terms of Business in the course a matter, we shall use reasonable efforts to draw such variation to your attention.
22.2. A copy of these Terms of Business and any variations thereto from time to time in force will be sent to you in hard copy form upon request. However, these terms of business and any future variations thereto may be published on the Viberts website at www.viberts.com by way of public notice to all current and prospective clients and other consumers of services provided by us. If we have given you written notice of the existence of these Terms of Business on the Viberts website, then, by the publication of these Terms of Business and any variations thereto on the Viberts website, you shall be deemed to have agreed these Terms of Business and all such variations.
23.1. Any notice required to be given hereunder shall be in writing addressed to the party concerned at its address from time to time notified to the other for the purpose, failing which to the last known usual address of such party. Any notice: (i) delivered personally shall be deemed to have been given at the time of such delivery; (ii) sent by email shall be deemed to have been given at the time of sending; (iii) sent by letter post shall be deemed to have been given 2 days after posting; or (iv) sent by airmail letter shall be deemed to have been given 3 days after posting.
Agent for service of process
24.1. You irrevocably appoint us to act as your agent for service of process in connection with any proceedings before any courts arising in relation to the matter upon which we are instructed under these Terms of Business and you agree that any notices, including (without limitation) any judicial process, issued in connection with such instructions shall be deemed to be sufficiently served on you if sent to us as your agent for service of process.
24.2. You agree that failure to notify you or the process will not invalidate the relevant proceedings.
24.3. You irrevocably consent to any process in any legal action or proceedings brought by Viberts in connection with these Terms of Business being served upon you in accordance with the Notice provisions at clause 22 above. Viberts reserve the right to serve process in any other manner permitted by law.
Law and jurisdiction
25.1. These Terms of Business and the legal relationship between you and us shall be governed by and construed in accordance with the laws of Jersey.
25.2. The parties irrevocably agree that the Courts of Jersey shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms of Business and the parties submit to the jurisdiction thereof. You agree that any judgment or order of a Court in Jersey resulting from any action or proceedings brought in accordance with this paragraph shall be conclusive and binding on you and may be enforced against you in any court of any other jurisdiction.
25.3. In providing services to you, we will not do anything or be required to do anything which in our opinion may conflict with the laws and regulations of Jersey or the terms of any permits, consents, licences or applicable codes of practice made thereunder by any competent authority in Jersey nor shall we be required to do anything which may give rise to any risk of criminal or civil liability or prosecution in any part of the world.
25.4. We will not be liable for any loss, damage or delay arising out of the firm’s compliance with any statutory or regulatory requirement.
26.1. Your continuing instructions will amount to your acceptance of these Terms of Business. Even so, we ask you to please sign and date the enclosed acceptance form and return it to us immediately. This is an important document. Please keep it in a safe place for future reference.