About Us

OUR STANDARD TERMS OF DOING BUSINESS WITH YOU

INTRODUCTION

The professional conduct rules governing the manner in which advocates are required to conduct themselves when carrying out work for members of the public requires us to publish on our website the standard terms of the retainer document which defines the way in which we carry out work for you.  Starting at numbered paragraph 1 below, we set out the usual text of such retainer letter that we require all clients to sign before we are able to commence doing legal work for you.

1.  OUR RESPONSIBILITIES

Thank you for instructing us to act for you.  This letter sets out our terms of business and the procedures we will follow in carrying out the work.  By dating, signing and returning this letter, you signify that you understand this letter and that you agree to be bound by its terms.  The work that we have agreed to undertake for you is [scope of the work described].

The writer will have the day-to-day conduct of this matter on your behalf and expects to be carrying out the majority of the work involved.  Assistance will be rendered from other members of the firm as and when required.  There may be times when your Advocate is out of the office or otherwise unavailable.  On these occasions, please speak to a secretary.  If she is unable to help, she will arrange for you to be contacted.

2.  HOW WE CALCULATE OUR CHARGES

Our charges are intended to be fair and reasonable.  They are based on guidelines and rules and regulations made by Tynwald and the Court.  Charges are calculated by reference to the amount of time that we spend on a matter, the complexity of the matter, the skill we apply, the size of the case and its value and importance to you and any other important or unusual features of your case.

The hourly charging rate to be applied to this matter will be £[       ](plus VAT and any additional expenses).  Our charges are reviewed periodically.  We review the charging rate specified above approximately twice a year.  We do not always increase it.  If we do, it is likely to be by between 5% and 10% to take account of our rising overheads and inflation.  The change will be notified on the face of the account for the work to which it relates.  The hourly rate includes overheads and our profit margin but does not include VAT or expenses which we incur on your behalf, e.g. doctor’s fees and Court fees.  These are payable as well.  These will also be found on the face of your bill except in the case of disbursements (e.g. doctor’s fees or court fees) which we ask you to pay directly at the time incurred. By signing this letter you authorise us to pay disbursements and expenses incurred in connection with your case direct by using cheques supplied by you payable to the relevant provider.

It is almost impossible to work out how much Court cases cost.  During the course of the case you can ask us at any time how much time we have spent on the case to date.  If you ask us to do so, we can try to give you an estimate of the amount of time that might then still be needed to resolve your case.  At present the best estimate we could give you is that from this point to point in the case described your costs would probably not exceed £[          ] plus VAT and disbursements.  An estimate is only for guidance, however.  We shall let you know if it becomes apparent that the matter is likely to take substantially more or less time and costs than we have already estimated up to a given point.  We would not normally notify you of small variations.

3.  HOW YOU PAY LEGAL CHARGES

You are responsible for your legal costs at all times.  If you are successful it is likely that the Court will order the loser to pay your costs.  Until then you must pay your costs.  Unfortunately, even then, the amount that you can recover if successful sometimes falls short of the bills we send you so that you may have to meet the shortfall yourself.  The reason for this is that we do everything we can to progress your case but sometimes the Court only allows you to get back the costs of completing a specific step in the case.  For example, the Court may allow you the cost of starting Court proceedings but not the cost of advising you about starting Court proceedings.

Some clients find this difficult to understand but it may help you to know that statistically this only happens in about 10% of cases and, even then, the shortfall rarely exceeds 10% of the total amount of the costs incurred.  Usually we expect to recover your compensation and legal costs in full if you succeed in your case.  Cases can be lost as well as won.  We would not be offering to take this case unless we thought you were more likely to win than to lose but if you do lose, you have to pay all your own costs and all the other side’s costs as well.

4.  WHEN COSTS HAVE TO BE PAID

4.1  Interim costs

You are responsible for our fees at all times.  We reserve the right to bill you from time to time in our absolute discretion whenever, in our opinion, a reasonable amount of unpaid interim costs have been incurred but usually every six months.  If an interim bill is not paid within 30 days that is a fundamental breach of this agreement and we reserve the right to stop acting for you, take our name off any Court record as your Advocate and bill you finally up to that point.  By signing this letter you irrevocably agree to our taking those steps if you fail to pay as requested.

4.2  Expenses (Disbursements) during the Case

Even if we do not ask you to pay interim bills, and whether we do or not, it still costs money to pursue a Court case.  At the very least, there are expenses to be paid on your behalf and, as explained above, sometimes interim bills to pay.  Commonly these include doctor’s fees and Court fees and so on.  These costs and expenses form part of your ordinary costs and, if successful, we would expect to reimburse you any you have paid.  If we ask you to send us a cheque payable to, for example, an expert witness in your case you must send that cheque to us promptly and in any event within 14 days.  If you fail to do so it will be deemed a fundamental breach of this retainer and we would then stop acting for you and remove our name from any court record and bill you finally up to that point.  By signing this letter you irrevocably agree to our taking those steps if you fail to pay as requested.

4.3  Final bills

At the end of the case we account to you fully.  Usually the other side pay your fees if you have won.  If you lose, you pay all outstanding charges and the other side will also pursue you for their, probably similar, level of costs.  This is an unlikely outcome in your case because you already know that we think that you have a reasonable prospect of succeeding in your claim.  All Court cases are, to some extent, an educated gamble however, and we cannot guarantee that you will win.  Sometimes even almost apparently certain cases are lost for various reasons, for example pieces of evidence turn up that nobody was expecting.  Whatever the outcome, we first of all work out how much you have to pay, which we then recover from the loser if we can for you.  If you are the loser, you have to pay.

4.4  Interest

Interest is charged on bills which are not paid within 30 days at the statutory rate of 8% from 30 days after the date of the bill until payment is received.  Sometimes the court can award interest on costs.  If this happens (which is very rare) you authorise us to keep that sum which is interest on costs in any event due to us.

4.5  Receiving Damages and Costs at the end of a Case

If you win your case and the loser pays your damages and costs we will ask them to let us have cheques payable to you directly for your damages and to us directly for the costs.  Some of the costs, however, for example interim bills and disbursements, will already have been paid by you and are due back to you.  We will ask opposing representatives to make those monies payable directly to you but if they refuse to do so with the result that we receive a cheque consisting of our unpaid costs (and monies due to you for costs or disbursements paid by you during the case) then by signing this letter you agree irrevocably to pay us another sum of money in advance in respect of costs before we release the cheque from the paying party to you for the total amount.  For example, if the paying party sends a cheque for all the costs payable to you we would require payment from you for the outstanding costs before we released the cheque for all the costs back to you (paid expenses and outstanding costs).  Failure to do so is a fundamental breach of this agreement and we would then stop acting for you and take our name off any court record and bill you finally up to that point.  By signing this letter you irrevocably agree to us taking those steps if you fail to pay as requested.

4.6  Other costs issues

Even though we think you should win your case, there are other circumstances when you might have to pay costs, for example you might want to change Advocates.  We would help you to do that but would require our costs to be paid in full before we released any of your papers to your new Advocate.  You might have a legal expense insurance policy which covers you for legal expenses.  There are any number of reasons why an insurance company may refuse to pay out under a policy.  If for any reason your legal expense insurance company refuse to pay, we would still require you to pay our bill.  You might win your case but, for any number of reasons, be unable to recover your fees.  For example, the Defendant may become bankrupt or his insurance company might become insolvent.  We would still require our costs to be paid.  The point is that you remain responsible for your fees at all times.  We reserve the right to bill you at all times even though we anticipate recovering your costs if you succeed.  Finally, if you were charged an initial fixed fee plus VAT for preliminary advice in conference prior to making your decision to take this matter forward and prior to signing this retainer letter, you are not likely to recover that fee because it does not form part of the costs involved in this retainer.  In the event of a wholly successful outcome to your case that is likely to be the only fee that you are not able to recover subject to the matters set out elsewhere in this document.

5.  SUMMARY

The basic principle is that you are responsible for your legal costs at all times.  If you win, it is likely the Court will order the losing party to pay your costs.  The initial liability for the fees stays with you but you would then be entitled to recover the costs from the loser.  The amount of the fees would either be agreed with the loser or approved by the Court.  There may be a small shortfall between what can be recovered and what you have to pay.  Remember Court cases can be lost as well as won.  Ultimately if you lose you would probably have to pay the other side’s costs as well as your own.  Whatever your fees are, you would therefore probably be paying the same or even more again in addition to your own fees.  We have advised you of your prospects of success in this case.  Obviously we think you have a reasonable prospect of succeeding and that these risks are small enough in your case to make it worth pursuing the case but you must remember that it is you that is taking the risk not us.

6.  COMPLAINTS

Advocates are only human.  We do our utmost to ensure errors don’t occur but mistakes do very occasionally happen.  If you think an error has occurred or something has been overlooked just tell us politely and calmly.  We will then take steps to correct anything we have done wrong.  If you are still unhappy then you should write formally to the person dealing with your matter who will do all in his power to resolve the problem.  If you are still unhappy then you can write formally to the Senior Partner who will immediately look into it.  An independent advocate is retained by us to deal with complaints because there is only one full-time advocate in this firm.  That advocate is separate to this firm and has his own practice.  At your request, he will assess any complaint and make his own findings with which we will comply.  If we cannot resolve your problem for you there are other avenues which you can pursue which we will be happy to inform you about.  If you want our fees independently reviewed, you have a right to seek assessment of fees in accordance with Section 23 of the Advocates Act 1995 by either the Chief Registrar or an assessor nominated by the Isle of Man Law Society.

7.  SUMMARY AND MISCELLANEOUS POINTS

We will give your affairs all proper professional skill and attention.  In appointing us to act you are also authorising us to take any steps we consider necessary to protect your interests in that matter, unless you instruct us to the contrary and to incur reasonable disbursements on your behalf.  Our fees are based on the various criteria laid down by statute and regulations and this agreement.  Figures provided by us of our likely fees and disbursements are given only as a guide to assist you in budgeting and cannot be treated as a firm quotation unless we expressly agree in writing.  You may withdraw your instructions at any time by written notice to us.  We may withdraw on giving you written notice where we have reasonable grounds to do so.   We also reserve the right to suspend work on the same grounds, by written notice to you.  We reserve the right to keep all your papers, documents and funds, irrespective of the matter to which they relate, until all fees and disbursements owed by you or your associates are paid.

In the course of providing our services to you we acquire and originate a range of documentation.  According to its nature, this documentation is either your property or is our property.  We do not segregate such documentation according to legal ownership.  Unless otherwise agreed in writing we shall retain documentation for a period that accords with our document retention policy from time to time.  Our present policy is to retain documents for engagements of this type for six years.  We reserve the right to destroy documents after a shorter period if our policy changes.  Documentation that is your property will be returned to you on request within these time periods at your expense.  We shall charge you at our then prevailing normal rates for retrieval and provision of your files from storage.  This retainer letter shall be governed by and construed in accordance with Manx law.  The Courts of the Isle of Man shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning this retainer letter and any matters arising from it.  Each party irrevocably waives any right it may have to object to an action being brought in those courts to claim that the action has been brought in an inconvenient forum or to claim that those courts do not have jurisdiction.  We do not advise on the law of jurisdictions other than the Isle of Man (which for these purposes includes the law of the European Union when applied in the Isle of Man).  These terms shall apply to you and your associates, which for these purposes includes all companies which you control or which control you or which are in common ownership or control with you.  We may vary these terms from time to time on written notice to you.

8.  DATA PROTECTION

The General Data Protection Regulation brought into existence by the European Union is given effect in the Isle of Man by similar legislation, in effect, bringing similar rights into existence for data subjects in the Isle of Man.  The legislation requires us to process your personal data fairly and lawfully.

The Data Controller and Data Protection Officer of this firm is the principal of the practice, Nigel M Cordwell, The Old Vicarage, Princes Road, Douglas, IM2 4HY, telephone 677277.

We process the minimum personal data about you to progress your case, most notably your medical records, and by signing and returning this retainer letter you are giving us your specific consent to obtain copies in particular of your medical records and copies of any other documents which we need to obtain containing personal data relating to you in order to progress your case and you are also giving us your consent to forward such documents to experts or other parties or the courts as is necessary to progress your case.  This is necessary for the establishment, exercise and defence of your legal claim.

Similarly, your other personal details, for example your name and address, will only be processed as required by law to progress your claim.

Your data will be stored until a date 6 years after the last step we take for you and will then be destroyed as will all papers still held by us at that date relating to your case.

You have various rights in respect of your personal data including to apply to us for access to your personal data and for rectification of records and for restriction of processing and for the right to be forgotten about and data portability.

The exercise of some of these rights may not be in your interests so far as advancing your claim is concerned.  If that is the case, we will tell you what the problem is and you can then decide how you want to proceed but you should not hesitate in any event to approach us if you require to exercise these special rights in the first place.

You can also withdraw your consent for us to hold and process your personal data by writing to us and informing us that you wish to withdraw your consent at any time.  We may then have to cease to act for you because it is often impossible to progress a claim without access to and the right to process your personal data but you should not hesitate to approach us if you require to withdraw your consent.  We suggest that you approach us and discuss this with us before taking any decision to instruct us in writing that you no longer consent to us processing your personal data.

You are entitled to lodge a complaint with the Information Commissioners Office at any time.  You may also raise the exercise of your personal data rights through the Information Commissioners Office should you so wish.  You can contact the Information Commissioners Office at First Floor, Prospect House, Prospect Hill, Douglas, IM1 1ET, telephone 693260.

Your data will come from you directly to us and from any third party we approach making a data subject access request for information that we need about you to progress your case, in particular the data controller in respect of your medical records.

We do not operate any form of automated decision making.  Please note that we only accept data subject access requests by non-electronic means.

The information provided to you above is required to be provided to you in writing in respect of all of the matters set out above in relation to the retention and use of your personal data.  If you have any queries or concerns about your personal data and how it is held and used by us you should not hesitate to discuss the same with us.

9.  COMMUNICATING WITH YOU AND ELECTRONIC COMMUNICATION

We will usually communicate with you by first class surface mail.  You can telephone us at any time.  We shall arrange face to face conferences with you as necessary.  If you have any important information or instructions you wish to give us we prefer you to do so in writing among other reasons because of the legal issues over e-mails.  The law in relation to e-mail communication is unsupportive of their use particularly as reliable evidence in litigation and the professional bodies say that they should not be used unencrypted without the informed consent of the client which it is probably impossible to obtain because of lack of consensus in the IT industry about the actual level of risk.  Accordingly, we strongly discourage the use of e-mails for communicating with us about your litigation, however, we understand that many clients nevertheless find this medium convenient.  Internet communications are capable of data corruption and, therefore, we do not accept any responsibility for changes made to such communications after their despatch from you to us or from us to you.  It may, therefore, also be inappropriate for you to rely on advice contained in an e-mail without obtaining written confirmation of it.

We do not accept responsibility for any errors or problems that may arise through the use of internet communication and all risks connected with sending sensitive information relating to you are borne by you.  It is your responsibility to carry out a virus check of any attachments or e-mails sent to you by us.

10.  LIMITATION OF LIABILITY

10.1      This clause may not be varied except in writing and signed by a principal or partner.  We believe the limitations on our liability as set out in this section are reasonable amounts having regard to the availability and cost of professional indemnity insurance and possible changes in its availability and costs.  We are, however, happy to discuss this limit with you if you consider it insufficient for your purposes and will investigate options for providing further cover at extra cost.

10.2      We will perform the engagement with reasonable skill and care and acknowledge that we will be liable to you for losses, damage, costs or expenses (“losses”) caused by our breach of contract, negligence or wilful default subject to the following provisions.

10.3      We will not be so liable if such losses are due to the provision of false, misleading or incomplete information or documentation or due to the acts or omissions of any person other than us except where on the basis of the enquiries normally undertaken by advocates within the scope of these terms of engagement it would have been reasonable for the advocate to discover such defects.

10.4      We accept liability without limit for the consequence of fraud by any principal, partner or employee within the course of practice and for any other liability which we are not permitted by law or rules of professional conduct to limit or exclude.  If any part of this retainer which seeks to exclude, limit or restrict liability (including but not limited to provisions as to amount or time limits) is found by a court to be void or ineffective on the grounds that it is unreasonable or does not accord with any professional obligation the remaining provisions shall continue to be effective.

10.5      Subject to the previous paragraph (10.4) the total aggregate liability of Nigel M Cordwell and our employees including damages, costs and interest before or after judgment whether in contract, tort (including negligence), breach of confidence, liability to account, breach of trust or fiduciary duty or of the data protection legislation or otherwise to you (and where we are instructed jointly by more than one party all of you collectively and in total and also including anyone claiming through you) arising from or in connection with the work which is the subject of these terms (including any addition or variation to the work) shall not exceed £2 million.

10.6      You agree that you will not bring any claims or proceedings against our employees.  This clause shall not operate so as to exclude any liability which a principal or employee is not permitted by law or rules of professional conduct to limit or exclude.  This clause is intended to benefit such employees who may enforce this clause pursuant to the Contracts (Rights of Third Parties) Act 2001 (the “Act”).  Notwithstanding any benefits or rights conferred by this agreement on any third party by virtue of the Act the parties to this agreement may agree to vary or rescind this agreement without any third party’s consent.  Other than as expressly provided in these terms the provisions of the Act are excluded.  For the avoidance of doubt it is not intended by the parties to this agreement that any term which may be construed as conferring a benefit on any person who is not a party to this agreement should be enforceable by such party.

10.7      Proceedings in respect of any claims must be commenced within 3 years after you first had (or ought reasonably to have had) both the knowledge for bringing an action for damages and the knowledge that you had a right to bring such an action and in any event no later than 6 years after any alleged breach of contract, negligence or other cause of action.  This provision expressly overrides any statutory provision which would otherwise apply; it will not increase the time within which proceedings may be commenced and may reduce it.

10.8      If we are liable to you either jointly or jointly and severally with any other party we shall only be liable to pay you the portion which is found to be fair and reasonable due to our fault.  We shall not be liable to pay you the portion which is due to the fault of another party.

10.9      Any sum due from us to you shall be reduced by the proportion for which another party would have been found liable if either

(a)        you had also brought proceedings or made a claim against them; or

(b)        we had brought proceedings or made a claim against them under the Civil Liability (Contribution) Act 1981 or any similar enactment under any other relevant jurisdiction.

10.10     You agree not to make our work available to third parties without our written permission and we accept no responsibility to third parties for any aspect of our professional services or work that is made available to them.

10.11     These limits on our liability shall apply to work done under this retainer and any future work unless we agree different terms with you.

11.  WHAT DO I DO NOW

To signify your agreement to these terms of business and your understanding of them, please date, sign and return one copy of this letter to our offices, keeping one copy for your own records.  Once signed our appointment shall continue in accordance with these terms until they are revised by us or we cease to act on your behalf.  These terms shall also apply to any future engagement unless we agree different terms.

12.  THE EFFECT OF THE 2008 “BANKING CRISIS” AND SUBSEQEUNT DEVELOPMENTS ON     ADVOCATES’ CLIENT FUNDS

12.1      In October 2008 the Isle of Man Government removed client accounts (a client’s money held by an advocate in a separate account for the benefit of the client) from the protection of the Government’s Statutory Depositor Compensation Scheme and there is no certainty that advocates’ insurance will pay out where money in an advocate’s client account is lost through a banking collapse.  The result is that, regrettably, we can offer you no security that monies deposited with us on your behalf in a client account are secure.

12.2      Accordingly and regrettably, in addition, the cost and procedures involved in our holding funds of yours for your convenience in a separate advocate’s client account, a service traditionally offered as part of an advocate’s practice, is not a service we can realistically continue to offer to clients.

12.3      We will have no obligation to you in respect of any amounts which you may be entitled to receive from us over and above the obligations incurred as set out above in this letter.

12.4      We accept no liability to you for any loss suffered by reason of the insolvency of any bank or building society with whom you bank and upon which you may draw any cheque requested by us except for any loss resulting from our own wilful default or negligence as trustee.

12.5      Because we do not have funds on account from you to meet disbursements, such as medical fees or court fees, we will ask you to let us have a cheque payable directly to the provider to be paid before any such service is procured on your behalf.  Should you fail to provide such a cheque on request it would constitute a fundamental breach of our retainer with you entitling us to cease acting for you and remove ourselves from any court record as being your advocate and bill you up to that point to conclude.

12.6      We regret that these developments in the marketplace now restrict the extent of the service that we are able to offer you in relation to the holding of your money on account generally but we are sure that you will appreciate that this is entirely without of our control.

13.  WARNINGS

The following matters are important for you to note very carefully.  If you do not heed and act on these warnings it may have a very serious adverse effect on your case, often with a fatal result for your case.  We have asked you about any other possible sources of funding in particular any legal expense insurance you might have.  If you do have any such cover and do not tell us about it, we cannot treat you as having any such cover.  If you do not comply with any orders the court makes during the case, e.g. to produce a document, this may result in your case being struck out.  If the court finds you have been dishonest about an aspect of your claim, e.g. exaggerating by claiming earnings you did not lose, the whole claim may be struck out.  We strongly advise that you do not post on social media or any other electronic record, e.g. “fit bit”, or talk to the press or to anyone else about the case or any aspect whatsoever of your case without taking our advice first.  It is not uncommon for other parties to your case to undertake surveillance on you, e.g. private detectives filming you to try to show you are able to do something you say you cannot do as a result of injuries complained of in your case.

If any aspect of our retainer is unclear to you please do not hesitate to contact us on the telephone or in writing to seek clarification before signing this document.

If you have any query about any aspect of our work, please do not hesitate to contact the writer.

Copyright © 2023 Nigel M Cordwell – All rights reserved.