Terms of Business


  1. Introduction
  2. Regulation of the Firm
  3. Confidentiality and conflicts
  4. Communications
  5. Money and documents
  6. Termination
  7. Billing arrangements
  8. Resolving problems and disputes
  9. Liability of the Firm
  10. Financial regulation
  11. Money laundering
  12. Miscellaneous

Appendix 1 – Protection of personal data
Appendix 2 – Appendix 2 – Contentious work

1        Introduction

We are Sacker & Partners LLP, a limited liability partnership (the “Firm”, “we”, “us”).

These are the general terms (“Terms”) which will apply to the services we provide to you. These Terms and the letter confirming your instructions to us (“the Engagement Letter”) will together form the contract between us. Where the Engagement Letter conflicts with these Terms, that letter prevails.

The Terms may also be amended by separate letter signed by a partner in the Firm.

2        Regulation of the Firm

2.1     Limited Liability Partnership

Sacker & Partners LLP is a limited liability partnership registered in England and Wales under number OC308089 whose registered address is at 20 Gresham Street, London EC2V 7JE.

2.2     Authorisation

We are authorised and regulated by the Solicitors Regulation Authority (SRA).  Our SRA number is 00408231.

2.3     Membership

A list of members of Sacker & Partners LLP, all of whom are solicitors, is available at its registered office.

2.4     Insurance

Sacker & Partners LLP maintains professional indemnity insurance in accordance with the rules of the SRA.  Our insurers are Aviva Plc, St Helens, 1 Undershaft, London EC3P 3DQ.  The insurance extends to acts or omissions wherever they occur.

2.5     VAT

We are registered for VAT under registration number 239 5848 18.

3        Confidentiality and conflicts

3.1     Confidentiality and disclosure

We owe a duty of confidentiality to all our clients and so (except as set out below) we will not disclose to any other party any information which we obtain by acting for you. We shall take appropriate steps to preserve your confidential information at all times, including the use of internal information barriers if appropriate. Equally, we will not be required to disclose to you, or use on your behalf, any documents or information in respect of which we owe a duty of confidentiality to another client or former client.

3.2     Disclosure to certain third parties

We may disclose any details of your confidential information to any police, governmental, regulatory or supervisory authority in accordance with statutory or regulatory obligations, or in accordance with any internal procedures which we have put in place to meet those obligations.

If required by our insurers or other advisers, we will provide details to them of any matter or matters on which we have acted for you.  We may also disclose information to third parties if reasonably necessary to recover our fees.

We may be required to report a breach of certain obligations relating to a pension scheme to the Pensions Regulator.  We will notify you before making a report unless it would be inappropriate to do so.

3.3     Use of external bodies

Sometimes we ask external agencies to copy documents or conduct quality checks on our practice, subject to appropriate safeguards to maintain confidentiality.  If you do not want your file to be outsourced in this way, please tell us as soon as possible.

3.4     Conflicts of interest

When we are acting for you on any matter, we will not also act for any other client, whose interests are or may be opposed to or in conflict with yours on the matter.  Similarly, we will not act in relation to a matter if our interests conflict with yours or there is a significant risk of their doing so.

However, where clients have a clear common purpose and a strong consensus on how it is to be achieved, it may be possible to act for both if they both agree in writing and any potential conflict is peripheral to the common purpose.

We will notify you immediately we become aware of any conflict between your interests in relation to a matter and our interests or those of any other client.  We may (in accordance with our professional rules) approach you to seek your agreement to our continuing to act on terms satisfactory to all concerned. In some circumstances, however, our professional rules may require that we cease to act.

3.5     Competing commercial interests

Without detracting from our duty not to act where we have a conflict of interest (see paragraph 3.4 above) and our duty to protect the confidentiality of information that we hold for you (see paragraph 3.1 above), we may without your consent act in unrelated matters for your competitors or other clients whose business interests are or may be opposed to or in conflict with yours or any of your associates.  That may include acting in relation to any litigation or other forms of dispute resolution.

We are not obliged to disclose to you our representation of clients who may have interests adverse to yours on unrelated matters. Equally, we will not without your consent disclose to other clients our representation of you.

3.6     Publicity

We may disclose that we are acting for you or have acted for you on a matter if information about that matter or our involvement in it is in the public domain or you specifically consent to that disclosure.

4        Communications

4.1     Emails

We may communicate with you and third parties by post, telephone, fax and by email.  Emails and documents attached to them (whether or not containing confidential information) will not be encrypted, password protected or digitally signed unless you have agreed special arrangements with us to protect those communications.

4.2     Intercepted emails

We shall not be liable for any loss or damage arising from the unauthorised interception, redirection, copying or reading of emails or their attachments.

4.3     Viruses

We make reasonable attempts to exclude from our emails and any attachments, any virus or any other defect which might affect any computer or IT system.  However, it is your responsibility to put in place measures to protect your computer or IT system against any virus or defect.  We shall not be liable for any loss or damage which may arise from any electronic communications from us.

4.4     Non Receipt of emails

We scan incoming emails for spam, viruses and other undesirable material.  This may result in communications from you failing to reach the intended recipient.  If any electronic communication is susceptible to being blocked or you are otherwise concerned that a communication sent by you may not have been received by us, you should contact the person to whom it has been sent.

4.5     Monitoring communications

We may intercept and monitor communications between you and individuals in the firm to ensure compliance with our internal rules or applicable legal requirements and to investigate matters brought to our attention.

5        Money and documents

5.1     Client money

The Firm will not normally hold clients’ money.  If, exceptionally, we agree to do so, it will be held on our general client account together with any monies we hold for other clients.  We will account for interest on clients’ money for the period it is held at the same rate as we receive, but we will not normally pay interest of less than £10.

5.2     Retention of files and documents

We will keep files and other papers for at least six years after the conclusion of your matter, and, given the long-term nature of much of the advice we provide, we may retain them for longer.  These files or papers may be kept, wholly or partly, in electronic form before secure destruction.  We will not destroy original documents you ask us to deposit in safe custody.

5.3     Costs of retrieval

If we retrieve a file or papers from storage at your request, we will not normally charge for the direct cost of removal from storage.  However, we may make a charge for time spent at your request in retrieving papers or documents from the file.  We may also charge for delivery of the file or papers or for any reading, correspondence or other work necessary to comply with your instructions in relation to the matter.

5.4     Copyright

Unless we expressly agree otherwise, the copyright and all other intellectual property rights in the original materials which we generate for you belongs to us.  However, the fee you pay for our work permits you to make use of that material for the purposes for which it is created.

5.5     Opinions

We may retain, for our own use, a note or copy of any advice or opinion from any barrister or other third party obtained while providing the services.  If we do so, we will take all reasonable steps to remove unnecessary personal data.

6        Termination

6.1     Your right to terminate

You may terminate our appointment on any or all matters at any time by giving us notice in writing.

6.2     Our right to terminate

We may stop acting for you only with good reason, for example, if you do not pay an interim bill, or if you fail to give clear or proper instructions on how we are to proceed, or you give us instructions which conflict with our rules of professional conduct.  We will give you reasonable notice of any such decision.

6.3     Payment of fees on termination

On completion of our services, or if you or we decide that we will no longer act for you, you will pay our outstanding charges and expenses including those not yet billed.  You will also pay our charges and expenses for time spent on transferring your work to another firm.  We will be entitled to keep all your papers and documents while there is money owing to us for our charges and expenses on any matter.

6.4     Completion of services

Our duty to you ends on the earlier of completion of the matter or six months after the last date on which we provided services.  If, after any agreement has ended, we provide you, free of charge, with any information or document or invite you to a seminar, that does not give rise to a new engagement.

If we later accept instructions to provide services to you, there will be a new engagement on our standard terms.

7        Billing arrangements

7.1     Timing of bills

We will usually send you a bill for our services and expenses at regular intervals (usually monthly or quarterly, as agreed with you) while the work is in progress.  We will send a final bill after completion of a particular project.

7.2     Settlement and interest

Each of our bills must be paid by cheque or transfer into our account within one month after the date it is sent.  If it is paid later, we will be entitled to charge interest from that date until the date the bill is paid at the rate payable on judgment debts from time to time.

7.3     Queries

If you have any queries about a bill, you should immediately contact the sender.

7.4     Checking bills

You have a right to object to our bill by way of our complaints procedure (see paragraph 8 below), including referring the complaint to the Legal Ombudsman where applicable.  You may also be able to apply for an assessment of our costs under section 70 of the Solicitors Act 1974.  There are strict time limits which apply to this procedure and you should seek independent legal advice.  If you exercise this right you would be prevented from making a complaint to the Legal Ombudsman.  If you apply to the Court for an assessment and if all or part of the bill remains unpaid at the end of that assessment, we can charge interest.

7.5     Third party responsibility

Even if someone else has agreed to pay or is responsible for paying all or part of your legal costs, we will normally address our bills to you and you will, in any event, be liable to us for those costs.  If you ask us to address a bill to someone else and we agree to do so, you will still be liable for those costs if the other person does not pay us.

8        Resolving problems and disputes

8.1      Complaints

If you have any complaints or concerns about our work for you or about your bill, please raise these in the first instance with your Client Partner.  If you are not satisfied with his or her response, please refer the complaints or concerns to our Senior Partner.

We will investigate your complaint promptly and carefully and do what we reasonably can to resolve the difficulties.  A copy of our full complaints procedure is available at www.sackers.com/more/complaints.

8.2      External complaints

In some cases, you may be entitled to refer any matter or complaint to the complaints and redress system operated by the Legal Ombudsman.  Its service is available to all members of the public and some small businesses, charities, clubs and trusts.

In addition, you should note that the Legal Ombudsman will not be able to accept your complaint if:

  • More than six years have elapsed from the date of the alleged act or omission giving rise to your complaint;
  • More than three years have elapsed since the time that you should have known about your entitlement to make a complaint; or
  • The date of the alleged act or omission giving rise to the complaint was before the 6th October 2010.

Normally you will need to bring a complaint to the Legal Ombudsman within six months of receiving our final written response to your complaint.  Their contact details are:

PO Box 6806, Wolverhampton, WV1 9WJ;
0300 555 033
enquiries@legalombudsman.org.uk.

9        Liability of the Firm

9.1     Contract with the Firm only

A limited liability partnership is a body corporate which has “members”.  It is however more usual for senior professionals to be referred to as “partners”.  There is, however, no partnership between the members or between the members and the Firm.  A reference in these terms of business or during your dealings with the Firm to a person being a “partner” is a reference to that person as a member of the Firm.

There is no contract between you and any member, employee or consultant of the Firm.  Any advice given to, or other work done for you by a member, employee or consultant of the Firm is given by that person on behalf of the Firm and not in his or her individual capacity and that person does not assume any personal responsibility to you for the advice or other work.

9.2     Exclusion of personal liability

If, as a matter of law, a duty of care would otherwise be owed to you by any member, employee or consultant of the Firm, such duty is hereby excluded.  You agree that you will not bring any claim against any member, employee or consultant of the Firm for any matter arising in any way out of the provision of the services to you.

Accordingly, any claim that you wish to make can only be made against the Firm and not against a member, employee or consultant of the Firm.

Nothing in this paragraph 9 excludes or limits the liability of the Firm to you or any claim you may have against a member, employee or consultant of the Firm for fraud.

9.3     Third party rights

Each member, employee and consultant of the Firm shall be entitled to the benefit of the provisions of this paragraph 9 under the Contracts (Rights of Third Parties) Act 1999, but our agreement may be varied from time to time or terminated without the consent of any such person.

9.4     Other advisers

We are not liable for any advice or other services provided by barristers, experts or other professional advisers or any service providers instructed by us on your behalf.

9.5     Third party liability

If you start proceedings against us for loss or damage and there is another person (for example, another adviser) who is liable (or potentially liable and in respect of whom you have a claim with a real prospect of success within the meaning of Part 24 of the Civil Procedure Rules) to you in respect of the same loss or damage, then you will (if we so request) join them into the proceedings.  This is subject to any legal prohibition against your joining them in that way.

9.6     Proportional liability

If we are jointly liable to you with any other person (for example, another adviser), there is a risk that we will be prejudiced by any limitation or exclusion of liability which you agree with any other person or if the other person does not pay their share of the liability.  Accordingly, you agree that we will not be liable to you for any amount which we would have been able to recover from that other person by way of indemnity, contribution or otherwise but are unable to recover for any reason, including their insolvency.

9.7     Exclusion of liability for compliance with reporting obligations

We shall not be liable for any losses you may suffer arising from or in connection with actions we take in good faith (whether or not under a legal duty to do so) to comply with statutory or regulatory obligations and any internal procedures which we have put in place to meet those obligations.  They include anti-money laundering legislation, the Proceeds of Crime Act 2002, the Bribery Act 2010, insider dealing and market abuse legislation and our duty to make reports to the Pensions Regulator.  Accordingly, you waive any claims or rights of action you may have against us (including for breach of contract, negligence, breach of confidentiality or other duty) for any such losses.

9.8     Application of these exclusions and limitations

We consider that the exclusions and limitations on our liability contained in these terms are reasonable having regard to our assessment of the likely liability to you if we make a mistake, the availability and cost of professional indemnity insurance and possible changes in them and the risk of insolvency of insurers.  These exclusions and limitations shall apply to all work done for you under our agreement and apply to the extent permitted by law.  We cannot for example avoid full liability if our mistake causes death or personal injury.

9.9     Liability cap

Our aggregate liability in respect of all claims in relation to a matter is limited to the sum (if any) that we specifically agree in writing.

10       Financial regulation

10.1    Scope of our services

The scope of our services does not include giving you financial or business advice on the merits of entering into a transaction.  No communication either to you, or on your behalf to any other person, during our engagement will be an invitation or inducement to engage in investment activity and nothing we say or write should be construed in such a way.

10.2    Inside Information

You agree to inform us immediately if any information which you provide or intend to provide to us constitutes or becomes “Inside Information” (within the meaning of Article 7 of Regulation (EU) No. 596/2014 on market abuse (“MAR”)) and any Inside Information previously disclosed to us ceases to be Inside Information. You agree to clearly identify to us in writing which specific parts of the information constitute or have become Insider Information.

If you require us to maintain an “insider list” (within the meaning of Article 18 of MAR) of individuals who have access to such Inside Information because they work for the firm, please notify us in writing prior to, or upon, providing such Inside Information.

10.3    Investment advice

If during this transaction you need advice on investments, we may have to refer you to someone who is authorised by the Financial Conduct Authority (FCA), as we are not.  However, as we are regulated by the Solicitors Regulation Authority, we may be able to provide certain limited investment services where these are closely linked to the legal work we are doing for you.

10.4    Insurance distribution

Occasionally, we may act as an ancillary insurance intermediary. We are not authorised by the Financial Conduct Authority (FCA).  However, we are included on the register maintained by the Financial Conduct Authority (FCA), so that we can carry on insurance distribution activity, which is broadly the advising on, selling and administration of insurance contracts.  This part of our business, including arrangements for complaints or redress if something goes wrong, is regulated by the Solicitors Regulation Authority.  The register can be accessed via the Financial Conduct Authority website at www.fca.org.uk/firms/financial-services-register.

10.5    Concerns

The Solicitors Regulation Authority is the independent regulatory arm of the Law Society.  The Legal Ombudsman deals with complaints against lawyers.  If you are unhappy with our investment advice or insurance distribution activity, you should raise your concerns with either of those bodies.

11       Money laundering

11.1    Proof of identity

We are subject to money laundering and terrorist financing legislation.  This requires us to obtain proof of your identity before accepting new instructions from you.  Accordingly, we may ask you to give us the necessary details.

11.2    Reporting obligations

If we have any evidence or suspicion that a client (or third party) is involved in money laundering or terrorist financing, we are required to report this to the National Crime Agency immediately.  If we make a report, we may not be able to tell you.  We may temporarily have to stop working on your matter and may not be able to tell you why.

12       Miscellaneous

12.1    Assignment

Neither you nor we will have the right to assign or transfer the benefit or burden of the agreement without the other’s written consent.

12.2    Severance of terms

If all or any part of our agreement is or becomes illegal, invalid or unenforceable in any respect, then the remainder of the agreement will remain valid and enforceable.

12.3    Force majeure

We will not be liable to you if we are unable to perform our services as a result of any cause beyond our reasonable control.  We will notify you as soon as reasonably practicable.

12.4    Waiver

No delay by you or us in enforcing any terms of our agreement will affect or limit your or our rights.  Any waiver by you or us of any breach of the agreement should not be deemed a waiver of any other prior or subsequent breach.  Any waiver of any contractual claim or right must be made in writing to be effective.

12.5    Applicable law

Our agreement shall be subject to and governed by the laws of England and Wales.  Any dispute arising from or under our agreement shall be subject to the exclusive jurisdiction of the English courts.

12.6    Third party rights

Our advice is provided for your sole use in relation to the matter on which we are advising at that time.  It cannot be relied on for any other purpose or at any other time.  It is also confidential.  You should not provide our advice, in whole or in part, to any third party unless we agree in writing to the form and context in which you wish to do so.  We accept no liability to any third party to whom our advice has been provided.

No provision of our agreement (other than paragraph 9 above) is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.  Accordingly, no third party (other than a member, employee, or consultant wishing to rely on paragraph 9) shall have any right to enforce or rely on any provision of our agreement.

12.7    Application of these terms

These terms supersede any earlier terms of business we may have agreed with you and, in the absence of express amendment, will apply to all the services we provide to you.  Occasionally we may need to amend or supersede these terms by new terms.  We will notify you of the changes and, unless we hear from you to the contrary within 21 days after such notification, the amendments or new terms will come into effect.

Appendix 1 – Protection of personal data

For the purposes of this Appendix, the “Data Protection Laws” means the Data Protection Act 2018, the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and any legislation and/ or regulation made pursuant to them, or which amends, consolidates, replaces or re-enacts either of them.

Our privacy notices can be found at www.sackers.com/more/privacy-notice.

1.1     Personal data about you

We hold personal data about you and your representatives such as name, telephone number, and postal and email addresses on our database.  We use that personal data for the provision of legal services to you and for related purposes such as updating and enhancing client records, making statutory returns, complying with legal and regulatory requirements and analysing the personal data to help us manage our practice. In addition, our work for you may require us to pass your personal data on to third parties such as expert witnesses and other professional advisers.

Our use of your personal data is subject to your instructions, our statutory obligations under data protection legislation and our duty of confidentiality.  We want to make sure the information we hold about you is correct and up-to-date, so please let us know if your details change. You may request access to or provision of your personal data in a portable form, or rectification or erasure of your personal data. You may also object to processing or request that processing be restricted.

If you have any concerns about how we process your personal data, please speak to us. You can also report any concerns to the Information Commissioner’s Office (0303 123 1113).

1.2     Receiving publications and invitations

Sackers provides a range of free publications and updates. We also run various seminars, webinars and other events. You can join our mailing list to receive details by email or by post.

You can let us know which of our publications and invitations you would like to receive by ticking the relevant boxes at www.sackers.com/knowledge/publications.

How will we hold your information?

If you sign up to our mailing list, we will add your details to Sackers’ electronic database which is managed by our Business Development team. The team can be contacted at mailinglist@sackers.com.

What will we use it for?

The information on our database will only be used by Sackers and will not be shared with anyone outside of our organisation.

We will use your information to send you publications and invitations in accordance with the preferences you give us at the time of signing up. We will also let you know about other Sackers’ special events or services which we think may be relevant or of interest, if you agree. We would like to be able to contact you by email or post. When signing up you will be asked to agree how you want us to contact you.

1.3     Personal data about others

You may need to provide us with personal data about others in order for us to provide our services, including information about current, former or potential employees, scheme members and beneficiaries, as well as information about such other individuals as may be required. This personal data may, amongst other things, include names, dates of birth, national insurance numbers, telephone numbers, postal and email addresses, salary and pensionable service details, information relating to health, and information relating to sexual orientation.

Where you provide us with personal data about others (whether held by you or by a third party, and whether provided directly by you or through a third party), we shall be entitled to assume that you are doing so in compliance with all relevant Data Protection Laws. In particular, you are responsible for providing clear information to the data subjects whose personal data is being shared with us.

1.4    Retention of personal data

At the end of our appointment we will, where possible, take steps to delete or return personal data about you or provided by you about others at your request.  However, given the long-term nature of much of the advice we provide, we may need to keep this personal data for such period as we deem appropriate. We will make any decision in this respect having regard to our legal and regulatory obligations, including Data Protection Laws.

Where we retain any such personal data to satisfy our own legal or regulatory obligations, we confirm that we will do so as a data controller even if we originally held the personal data as a data processor. In such cases, the obligations set out in paragraph 1.6 will apply.

1.5     When Sackers act as data processor

Much of the advice we give does not involve the use of personal data. Where personal data is relevant, we will be providing advice on points such as entitlement to benefits, where the member data is a set of facts that is relevant to determining whether someone is eligible to receive a benefit.

In such cases, we are not determining the purpose or means of processing and therefore do not act as a controller. You as controllers have determined the purpose for which the personal data is collected and used, and sent to us. In line with instructions we receive from you, we then consult or use the personal data as a processor to provide the advice.

When acting as a data processor on your behalf, we confirm that, taking account of such factors as are permitted under Data Protection Laws, we shall:

  1. implement appropriate technical and organisational measures to meet the requirements of Data Protection Laws and the protection of individuals’ rights;
  2. not disclose any confidential information without your consent (unless required by law) and ensure that Sackers’ staff authorised to process personal data provided by you shall maintain its confidentiality;
  3. take appropriate technical and organisational security measures against unauthorised and unlawful processing, accidental loss, destruction of or damage to personal data, and take all other measures required pursuant to Article 32 of the GDPR;
  4. taking into account the nature of the processing, assist you by appropriate technical and organisational measures, insofar as this is possible, in fulfilling your obligation as a data controller to respond to requests by data subjects in exercise of their rights;
  5. notify you without undue delay of any personal data breach, and assist you in ensuring compliance with your obligations under Articles 32-36 of the GDPR taking into account the nature of the processing and the information available to us;
  6. process personal data only on documented instructions from you for the purposes of providing our services, including with regards to transfers of personal data to a third country or international organisation unless otherwise required by law to do so. In such cases, we will notify you of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
  7. not engage another processor (“sub-processor”) without your prior specific or general written authorisation and ensure that equivalent requirements as set out in this paragraph 1.5 are imposed. In the case of a general written authorisation, we will inform you of any intended changes so that you have the opportunity to object to those changes. We acknowledge that we shall remain fully liable to you for the performance of the sub-processor’s obligations; and
  8. make available to you all information necessary to demonstrate compliance with the obligations laid down under Article 28 of the GDPR, and allow for and contribute to audits, including inspections, conducted by you or another auditor appointed by you, and immediately inform you if, in our opinion, an instruction from you infringes the GDPR or other relevant Data Protection Laws.

1.6     When Sackers act as data controller

If we determine the purposes and means of processing personal data, we do so as a controller.

We confirm that we will comply with all the obligations imposed upon such a controller under the Data Protection Laws. As part of this, during the period of our appointment to provide legal services to you, we also confirm that we shall:

  • notify you promptly: (i) upon receiving a request for personal data or other request from a data subject, or if we receive any claim, complaint or allegation relating to the processing of the personal data; (ii) upon becoming aware of any breach of security leading to the destruction, loss or unlawful disclosure of the personal data in our possession or control. We will co-operate with you to handle any such event and provide reasonable assistance;
  • upon request, provide you with information relating to our processing of personal data as reasonably required for you to satisfy your obligations under the applicable Data Protection Laws; and
  • be entitled to assume that you will only provide personal data to us that is necessary for the provision of our services to you and in compliance with the Data Protection Laws, and that even when we act as sole data controller, you are responsible for providing the information required by Articles 13 and 14 of the GDPR to the data subjects whose personal data is being shared with us.

1.7     When Sackers act as joint controller or controller in common

If we are jointly determining with you the purposes and means of the processing of personal data, we may be acting as a joint controller.

Unless we agree otherwise each party shall be individually responsible for ensuring that the processing each undertakes is in accordance with Data Protection Laws, that data subjects are able to exercise their rights and that the appropriate technical and organisational standards required of a controller are implemented.

For the avoidance of doubt, we will be entitled to assume that you will only provide personal data to us that is necessary for the provision of our services to you and in compliance with the Data Protection Laws, and that you are responsible for providing the information required by Articles 13 and 14 of the GDPR to the data subjects whose personal data is being shared with us. We confirm that we will co-operate with you and provide reasonable assistance to you in this regard.

Appendix 2 – Contentious work

This appendix contains further contractual provisions and important information where your instructions relate to litigation or the resolution of disputes by other means (including a non-contentious matter which becomes contentious or gives rise to further instructions on a contentious matter).

2.1     Costs risk

In court proceedings, the Court may decide to order one party to pay the costs of the other.  The Court usually orders the unsuccessful party to pay all or a part of the successful party’s costs, although there is no certainty about this.  You should be aware that:

  1. If you make an interim application to Court which does not succeed, you may have to pay the other side’s costs, usually within two weeks.
  2. If you lose the case, you may have to pay the other side’s costs and it is not usually possible for you to withdraw from the case without dealing with the issue of those costs.
  3. Costs awarded have to be proportionate to the value of the dispute and, in ordinary course, costs recovered from the other side rarely exceed sixty to seventy per cent (60-70%) of actual expenditure.
  4. You will still be liable to pay our costs in full, even if the other party fails to pay the costs awarded to you by the Court.
  5. Issues which the Court may take into account in assessing the costs payable or recoverable include:
    • efforts made before and during the proceedings to try to resolve the dispute, including the appropriate use of mediation and other alternative dispute resolution procedures;
      the effects of payments into court and offers of settlement;
    • the complexity and size of the matter and the difficulty or novelty of the questions raised;
    • the skill, effort, specialised knowledge and responsibility involved;
    • the time spent; and
    • the place and circumstances in which the work was done.
  6. If the other side is or becomes legally aided, it is highly unlikely that you will recover your costs, even if you are successful.
  7. If you are unsuccessful, or the Court so orders for some other reason, you may be ordered to pay the other side’s costs.

We will discuss with you whether the likely outcomes of any legal case justify the expense and risk of that matter including, if relevant, the risk of having to pay an opponent’s costs.

2.2     Legal expenses insurance

Legal expenses insurance may be included in your contracts of insurance and you should check your policies to see if you are covered.  Your policy may cover your costs and/or your liability to pay the other side’s costs.  If you believe you are covered, please discuss this with us so that we can assist you in notifying your insurer.  If you do not have legal expenses insurance, you may be able to purchase insurance to cover you in the event that you have to pay the other side’s costs.

2.3     Conditional fee agreement

A conditional fee agreement is an agreement whereby we would be entitled to charge you an increased fee if you were successful and would charge you no fee or a reduced fee if you were not successful.  You might be able to take out an insurance policy to cover you in the event that you were ordered to pay the other side’s costs.  Not all matters are suitable for this type of conditional fee arrangement, but we are happy to discuss this further with you at your request.

2.4     Statements of truth

Under the Civil Procedure Rules, a number of formal documents must be verified by a statement of truth, to the effect that the party putting forward the document believes the facts stated in it are true.  Making a false statement of truth is potentially a contempt of Court.

Whilst a statement of truth can be signed by you or your legal representative, it is our policy that you should sign your own statement of truth.

2.5     Attendance at hearings

Please be aware that, under the Civil Procedures Rules, the Court can order you to attend hearings.  We will discuss this with you further as your case progresses.

2.6     Alternative dispute resolution

As part of the active management of a case under the Civil Procedure Rules, both the Courts and the parties in a dispute are required to consider the use of alternative dispute resolution (“ADR”) if it is considered appropriate to help to resolve the dispute.  ADR includes methods of dispute resolution such as mediation, adjudication and expert determination.  There have been occasions when the Courts have imposed costs penalties on parties who unreasonably refuse to consider ADR.  We will discuss both the methods of ADR and any possible costs implication further with you if and when it becomes appropriate.