Terms of Engagement
Introduction
These terms, and the covering letter ("Engagement Letter") which accompanies them, set out the basis on which Tanner De Witt ("TDW") provides legal services to its clients. This document contains our standard terms, some of which may not be immediately relevant to the work that TDW has agreed to conduct for a particular client. However, they may become relevant in the future. Both this document, and the Engagement Letter, should be retained for future reference. These terms may be varied by TDW by notice to the client.
Client and task
TDW will specify in the Engagement Letter the identity of the party who is our client who, unless TDW agrees otherwise, will be responsible for paying TDW's fees and disbursements, and the task or tasks which TDW is to undertake on its client's behalf ("Matter"). When TDW's client is a company, it may be necessary to obtain a board resolution authorising TDW to act on its behalf.
Instructing TDW
In order to avoid any misunderstanding, TDW will specify in the Engagement Letter the name of the individual or individuals from whom TDW will accept day-to-day instructions in respect of the Matter.
Taking the following steps will help TDW to ensure that the Matter is handled speedily and cost-effectively:-
- providing clear and complete instructions to TDW, together with all relevant papers;
- explaining any particular time limits, targets or expectations;
- notifying TDW if its client is unsure of any particular aspect or if further detail or information is required.
Anti-money laundering and terrorist financing
In order to comply with the requirements of The Law Society of Hong Kong in respect of anti-money laundering and terrorist financing, TDW will need to be satisfied that it has sufficient proof of the identity of its clients. TDW may also need to obtain information on the nature and purpose of transactions and sources of funding and further information and documents may be required by TDW from time to time.
If TDW does not obtain the required information and documents to its satisfaction, TDW cannot act/continue to act and may in such circumstances terminate any retainer immediately by written notice to the client.
Responsibility for work and details of TDW
All matters handled by TDW are overseen by a Partner. In order to provide TDW's services as cost effectively and efficiently as possible, some of the day-to-day conduct may be dealt with by other solicitors, registered foreign lawyers or other staff employed by TDW. TDW will specify in the Engagement Letter the name of the Partner and any other persons specifically designated to work on the Matter. If a registered foreign lawyer works on the Matter, the registered foreign lawyer's charge-out rate will be the same rate of a Hong Kong solicitor at TDW with similar post qualification experience to the registered foreign lawyer.
TDW's commitment to each client
- TDW will keep its client's business confidential and not discuss it with any external person or organisation without the client's permission. TDW's client should however be aware that under certain circumstances disclosure of confidential information can be mandatory. For example, this may be required by law or by a court order. Disclosure can be required without the knowledge of the client. TDW may make public the fact that it is acting on behalf of a client unless requested not to do so in writing.
- TDW will keep its client informed of progress by telephone or in writing as appropriate.
- TDW will deal with all matters as expeditiously as possible.
- As part of TDW's commitment to providing a quality, cost effective service, TDW's insurers or potential insurers may periodically review TDW's files on a sample basis to confirm that TDW is complying with the best standards and procedures in file management. Files are not made so available where the subject matter is of an unusually sensitive nature, or where a specific client so requests.
Fees
Unless TDW has agreed another fee structure, TDW will charge fees primarily by reference to the amount of time spent by individuals at TDW who will record time in six minute units. TDW's hourly charge-out rates vary according to the seniority of the personnel involved and the current rates are set out in the Engagement Letter. If other factors (such as the nature and complexity of the work and the value of the transaction) become important, these will also be taken into account in calculating TDW's fees.
Time spent on a Matter will include, but is not limited to, meetings with the client and others, time spent travelling and waiting, considering and preparing papers, making and receiving telephone calls, correspondence including sending and receiving emails and attending at Court or Tribunal.
Hong Kong law firms are not generally permitted to agree a fee structure which depends upon the outcome of litigation. If a transaction or other matter does not proceed to completion or litigation is not successful, TDW's fees will still be payable.
Estimates TDW gives are a guide to assist a client in budgeting but should not be taken to be a definitive quotation unless this is specifically agreed in writing.
Disbursements and other charges
In addition to TDW's own fees, any disbursements incurred (such as TDW's photocopying and printing charges) will be included within TDW's invoices. In addition, TDW may incur expenses and/or payments to third parties on a client's behalf. Such items include but are not limited to counsel's fees, expert's fees, telephone, postage and fax charges, travel, computerised legal research and searches and will be included in TDW's bills. All disbursements will generally be billed at the same time as TDW invoices for its fees but may be billed at other times. Disbursements may be billed in the currency in which they were incurred.
If TDW has to incur additional expenses for staff (other than solicitors) working overtime during evenings, nights or weekends in order to provide the service that a client requires in particular circumstances, TDW may include these additional expenses as a separate item within its invoice.
Air travel and work overseas
If members of the firm are required to travel overseas at the request of clients, the Partner will agree the travel arrangements (including, without limitation the class of air travel) with the client. It is TDW's normal practice to require that all air tickets are paid for by the client or responsible person prior to the date of travel. Clients will be responsible for paying for or reimbursing the reasonable hotel and living expenses incurred in connection with such travel.
Billing
Regular billing will usually be sent to clients (unless otherwise agreed) enabling clients to keep track of costs. Bills will contain a general description of work performed during the relevant period. If a client wishes to have a more detailed explanation of charges, this can be provided on request. All bills are sent on an errors and omissions excepted basis.
Payment information
Clients may make payment by a cheque payable to "Tanner De Witt" or by bank transfer to the following bank account:-
| SWIFT code: | HSBCHKHHHKH |
| Account: | Tanner De Witt client account |
| Account number: | 499-296549-002 |
| Bank name: | The Hongkong and Shanghai Banking Corporation Limited |
| Bank address: | 101-103 Sun Hung Kai Centre, 30 Harbour Road, Wanchai, Hong Kong |
TDW's clients should quote TDW's reference when remitting funds and should ensure that the full amount of the payment is received into TDW's account without deduction of bank or other charges.
This is a Hong Kong dollar account and any foreign currency remitted to this account will be converted by TDW's bank into Hong Kong dollars at the prevailing market rate. If a client wishes TDW to receive and hold funds in a foreign currency then TDW should be notified before the funds are remitted and TDW can make appropriate arrangements.
TDW is also able to receive payments through Visa, MasterCard, Amex and EPS. Payments using these methods can be made in person at TDW's office.
Client account money
All monies that TDW receives from clients or from a third party for the purposes of the legal services that TDW provides to its clients will, until utilisation, be kept segregated from TDW's own money in a designated clients' account.
Payment on account
TDW may, either at the commencement of the Matter or at any other time during the course of the work on the Matter, ask clients to make payments on account of anticipated costs and disbursements. TDW's total fees and expenses may be greater than any advance payments. At TDW's discretion, some or all of the money so paid may be applied towards any outstanding bill.
Payment
TDW's bills are payable on presentation unless TDW has agreed otherwise in writing. If a bill remains unpaid for more than 30 days or if a client does not within 14 days meet a request from TDW for a payment on account of costs and/or disbursements then TDW reserves the right to decline to act further. In such a case, the full amount for work done and disbursements will be billed to, and payable by, the client.
Where a client's account is overdue, TDW is entitled to retain documents and papers belonging to that client until TDW's account is settled.
If instructions for a particular task are given to TDW by more than one person or company who are collectively regarded as TDW's client, TDW may recover its fees and disbursements from any one or more of them.
Interest on unpaid bills
Work is often undertaken by TDW in respect of a Matter before a bill is rendered to a client. If, in addition, a bill is not paid within 30 days of presentation then this places an unreasonable cash flow burden upon TDW. TDW therefore reserves the right to charge interest from the 30th day, at the rate of 2% of the total unpaid balance for each month or part of a month that payment is in arrears, until settlement.
Conflict of interests
If a client becomes aware of a possible conflict of interest between that client and another client for whom TDW acts, the client should raise it with the Partner immediately. If a conflict of this nature arises, TDW's client agrees that it will be for TDW to decide, taking account of legal constraints, applicable professional rules and the client's and the other client's interests and wishes whether TDW should continue to act for both parties, for one party only or for neither party.
Limitation of liability
TDW will rely upon the information and instructions provided by its client or by others on its client's behalf. TDW's advice will reflect the nature and extent of information and instructions received and the timescale under which TDW is operating. If TDW is asked to provide advice in an abbreviated format or on a short timescale, its client may not receive all the information its client might otherwise have obtained. TDW's advice is provided in relation to a specific set of facts and as a result TDW does not accept any responsibility for the accuracy of that advice in other situations.
TDW will not be responsible for any failure to advise or comment on any matter which falls outside the scope of its instructions.
TDW shall not be liable for failure to perform or for any delay in performing its obligations if the failure or delay is due to causes beyond TDW's control including but not limited to extreme weather; riot; curfew; war; terrorism; industrial action; IT or electrical failure; theft; illness; death of a partner, counsel, an expert, a judge, an arbitrator or a witness; police investigation; failure to provide full instructions.
TDW's liability to its client in respect of breach of contract or breach of duty or negligence or otherwise arising out of or in connection with TDW's engagement or the services TDW provides in respect of the Matter shall be limited to the extent permitted by law to that proportion of the loss or damage (including interest and costs) suffered by TDW's client which is allocated to TDW by a Court of competent jurisdiction allocating proportionate responsibility to TDW having regard to the contribution to the loss and damage in question of any other person responsible and/or liable to TDW's client for such loss and damage.
TDW's client expressly agrees that its retainer is with TDW and that the client will not bring any claim in respect of any loss or damage against any of TDW's partners, solicitors or staff personally.
A Practice Direction issued by The Law Society of Hong Kong confirms that subject to certain conditions, a solicitor may seek to limit his liability in business other than contentious business. TDW considers that in certain non-contentious business it is appropriate to limit its liability to clients and in such cases will notify clients in the Engagement Letter.
Nothing in this document or the Engagement Letter which accompanies it shall exclude or restrict any liability arising from fraud or dishonesty, any liability for death or personal injury caused by negligence or any other liability which by law cannot be excluded or restricted.
Other parties
The services provided by TDW to a client are solely for the benefit of the specific client identified in the Engagement Letter and TDW accepts no responsibility to anyone else.
TDW's advice may not, without TDW's prior written consent, be disclosed to any other party. In particular, TDW's client agrees not to refer to TDW or TDW's advice in any public document or communication without TDW's prior written consent.
If TDW is requested to introduce TDW's client to other professional advisers, or third parties (such as accountants, foreign lawyers and surveyors) TDW will endeavour to do so. Unless agreed otherwise by TDW, TDW's client will be responsible for payment of their fees and charges directly. Such third parties are responsible for any advice they give and TDW shall not be liable for any of their acts or omissions.
For the sake of convenience, TDW generally communicates with its clients using normal, non-encrypted email. This form of email is not secure and there is a risk to a client if TDW communicates confidential information in this way. TDW does not accept liability for any communication which is intercepted or otherwise falls into the hands of those other than the intended recipient or in respect of non-receipt, late receipt or corruption.
Although TDW regularly carries out virus checks, TDW advises its clients to carry out their own checks on all systems, data and communications whether in the form of computer disks, email, internet use or otherwise. TDW accepts no liability for any virus that may enter a client's systems or data by these or any other means.
TDW assumes that it has each client's consent to communicate with clients and related parties by this method unless TDW is informed in writing otherwise in specific cases.
Audit enquiries
If TDW receives requests either directly from a client or from a client's accountants and/or auditors, relating to preparation of a client's accounts, requiring TDW to confirm, for example, whether any matters are of a litigious nature, whether any deeds or documents are retained by TDW and also whether there are any outstanding bills owed by TDW's client to TDW or any work in progress at a specified date, TDW's response shall always be addressed directly to its client for onward transmission and TDW reserves the right to charge on a time basis for work undertaken in responding to such requests.
Tax advice
Unless specifically agreed with TDW's client in writing, TDW's advice will not extend to advice on the tax implications of the work on which TDW is advising.
Copyright and intellectual property
TDW retains all copyright and intellectual property rights in all material developed, designed or created by TDW during the course of a retainer.
Document return and storage
At the end of a retainer and upon payment of all outstanding bills TDW will, if requested, return to its client all of the original documents which the client has sent to TDW or which TDW may be holding. When TDW closes its file, TDW will send all other documents and correspondence to a commercial storage company from where they can be retrieved for up to 7 years. Thereafter, and unless for some reason it is obvious to TDW that the documents need to be retained for a longer period (for example, if TDW is holding title deeds or a will for safe-keeping), TDW reserves the right to destroy such papers with no further notice to the client, or otherwise in accordance with the procedures recommended by The Law Society. TDW reserves the right to charge for time spent and costs incurred if requested to retrieve documents or information which involves more than the mere delivery of documents.
Termination
A client may terminate TDW's retainer at any time by giving TDW reasonable prior written notice. TDW may terminate its retainer as stated elsewhere in these Terms of Engagement and upon such prior written notice as TDW considers reasonable in the circumstances if:-
- the client fails to pay TDW's bills;
- the client fails to provide TDW with adequate instructions;
- the client fails to comply with TDW's request for a payment on account;
- TDW considers its client's interest would be better advanced by other representation; or
- TDW finds itself in a position of conflict of interest.
If TDW's retainer is terminated by the client or by TDW, the client must pay TDW's fees and disbursements for work done and expenses incurred up to the date on which the termination takes effect.
If TDW is on the record at Court as acting for a client in any proceedings the consent of the Court may be required before TDW can come off the court record. To that extent, a client's right to terminate TDW's retainer may be restricted.
The solicitor/client relationship with TDW's client will terminate upon completion of the specific Matter that TDW has been engaged to work on. The fact that TDW may inform a former TDW client of developments in the law or other matters of interest by newsletter or otherwise does not continue or create a retainer or solicitor/client relationship.
Unclaimed money in client account
If a balance remains in a TDW client account at the end of a retainer, after payment of all outstanding bills, and the client either cannot be traced after reasonable efforts have been made to contact them or has not given consent to the closing of the account, TDW's client agrees that, TDW is authorised to withdraw the balance from the relevant client account, donate the balance to The Law Society Educational Trust Fund and close the file with TDW. Such procedures are recommended by the Law Society.
Litigation
TDW's client will be responsible to TDW for the legal fees and expenses incurred, although if a client is successful it may be possible to recover some costs from the opponent. There may however be cases where the opponent is not ordered to pay or may not be able to pay all or any of sums due under a costs order. Conversely, if a client is unsuccessful in the litigation, it is likely that TDW's client will be ordered to pay some of the opponent's costs and expenses. It is important to remember that there is no guaranteed outcome when embarking upon litigation.
If a client is ordered to pay some or all of the opponent's costs and expenses and the sum cannot be agreed then the sum is established by a Court official known as a taxing officer. This process is called taxation and can take considerable time after the conclusion of the litigation. For this reason, it is often desirable to try and negotiate the sum to be paid for costs. Typically, an unsuccessful opponent will be obliged to pay the winning party's "party and party" costs on taxation, which are between 60% to 65% of the costs actually incurred with solicitors and most of the sum incurred for disbursements such as photocopying and counsel's fees. Payment of TDW's bills in full is due whether or not TDW's client obtains an order for costs against the opponent at the end of the litigation and regardless of the outcome of the litigation and of any party and party taxation. Accordingly, it is likely to be necessary for TDW's client to pay TDW's bills before receiving any payment from the opponent unless the figure is quickly agreed and paid by the opponent.
A party to litigation may have to make payments of some of the opponent's fees and expenses at various stages in the course of the litigation. If a party withdraws from a litigation, the opponent may be entitled to apply to the Court for an order for payment of the opponent's fees and expenses.
The Court will normally use the following rates when taxing or assessing party and party costs:-
| Number of years in practice | Hourly rate allowed by the High Court - HK$ |
|---|---|
| Over 10 years qualified solicitor | From 3,200 to 4,000 |
| 7 - 8 years qualified solicitor | From 2,900 to 3,500 |
| 5 - 6 years qualified solicitor | From 2,400 to 3,000 |
| 2 - 4 qualified solicitor | From 2,000 to 2,500 |
| Newly admitted solicitor | From 1,600 to 2,000 |
| Litigation clerk | From 800 to 1,000 |
In rare cases, costs can be ordered to be paid on a higher level than party and party basis if the Court considers the conduct of the party to the litigation to be worthy of disapproval.
If TDW is ordered to take any action, or prepare any papers or documents, by the Court in the course of litigation TDW is entitled to charge the client for the time and costs incurred in taking such steps.
If TDW is required to refer to communications with its client within any Court application concerning (i) wasted costs or (ii) to come off the record the client waives any right to legal privilege it may have in respect of such communications.
Where the retainer has been terminated and TDW is required to apply to Court to come off the record, the client acknowledges that any application or process may be served on the client by registered post, courier or email sent to the address set out in the Engagement Letter. Such service shall constitute valid and lawful service of process on the client notwithstanding any other means of service provided for by law or rule of Court.
Governing law
TDW's advice is given on the basis of the laws of the Hong Kong Special Administrative Region of the People's Republic of China ("Hong Kong"). To the extent TDW advises on documents governed by the laws of other jurisdictions, TDW will not be advising on any specific implications of the laws of those jurisdictions.
These terms and the services TDW provides to its client shall be governed by and construed in accordance with the laws of Hong Kong and, except as provided below, any disputes or claims arising shall be submitted to the exclusive jurisdiction of the Hong Kong Court. It is agreed that TDW may bring proceedings against a client in other jurisdictions at TDW's option.
