Babbé LLP Terms and Conditions of Business

These terms and conditions govern the basis upon which we provide legal professional services and advice and are referred to below as Terms.

These Terms override any other terms and conditions stipulated or incorporated by you in your instructions unless otherwise expressly agreed by us in a separate engagement letter with you.

References in these Terms to we/us shall mean Babbé LLP. Babbé LLP is a limited liability partnership registered in Guernsey, having its registered office at La Vieille Cour, La Plaiderie, St Peter Port, Guernsey, GY1 4BL.

Babbé LLP uses the term Partner to refer to a member of Babbé LLP or an employee or consultant of equivalent standing and qualification. A list of the members of Babbé LLP is available for inspection at its registered office.

Babbé LLP is registered with the Guernsey Financial Services Commission as a prescribed business.

1. Babbé LLP

a) Your contract is with Babbé LLP and not with any Partner, employee, consultant of, or any person connected with Babbé LLP or any Babbé LLP group companies who deliver the services on behalf of Babbé LLP.

b) Any advice given to you (or other work done for you) by a Partner, employee or consultant of Babbé LLP is given (or done) by that person on behalf of Babbé LLP and not in his or her individual capacity and no such person assumes any other personal responsibility to you for the advice or other work.

c) You agree that you will not bring any claim in connection with advice or services provided to you, whether on the basis of contract, in tort (including, without limitation, negligence), breach of statutory duty or otherwise against any Partner or any employee or consultant of Babbé LLP or any Babbé LLP group company but this will not limit or exclude the liability of Babbé LLP (subject to the terms set out in clause 10 of these Terms) for the acts or omissions of its Partners, employees or consultants.

d) This clause 1 is intended to benefit Babbé LLP and such Partners, employees or consultants who may enforce this clause. Notwithstanding any benefits or rights conferred by these Terms on any third party, the parties to these Terms may agree to vary or rescind these Terms without any third party’s consent.

2. Responsibility for Client Matters

a) A Supervising Partner will be appointed for every Babbé LLP client. Your Supervising Partner is responsible for ensuring that every aspect of the service provided to you by us is of the highest standard.

b) We will delegate work to staff members who appear to the Supervising Partner to be appropriate, by qualification or experience, to handle the work concerned.

c) It may be necessary and/or appropriate for us to instruct English Counsel to advise on particular aspects of the case. There are many occasions when a Guernsey Court would look to the law of England for guidance on a particular issue and it is often in your interests and more cost efficient for English Counsel to be instructed in such circumstances.

3. Charges

a) Charges for our services will be fair and reasonable having regard to all the circumstances of the case.

b) Unless otherwise agreed, our charges are determined by reference to a number of factors, the most important being the time spent on the matter. This includes, but is not limited to, time spent travelling, unless otherwise agreed with you, and time spent on routine correspondence as well as making and receiving telephone calls. We do not provide any services on any form of contingency basis.

c) In addition to our charges, we may incur expenses (which are called disbursements) covering (inter alia) Counsel’s fees, expert’s fees, courier charges, Court fees, Guernsey Registry fees and travel expenses. When we incur such disbursements, we will usually include these in our next invoice or send a separate disbursement only invoice. In every case, you are liable to reimburse us on demand for expenses incurred. In the case of certain expenses, such as Counsel and experts, we will not be obliged to instruct those third parties until a payment on account of the estimated costs is received by us.

d) We may also recover from you other costs and charges (not incorporated within our hourly rates) representing secretarial overtime in relation to urgent matters requiring our support staff to work after normal business hours.

e) We will do our best to keep you informed as to the likely cost of each matter. However, as the amount of work required in respect of any litigation and certain non-contentious matters is often uncertain, often the best that can be achieved is for you to be kept informed on a regular basis as to the build-up of costs as the action proceeds.

f) The basis on which you will be charged and any applicable rates will be agreed with you in advance and confirmed in writing by the Supervising Partner or the person having day to day responsibility for your work.

g) Where an estimate of fees is required and given, it is only an indication of the amount anticipated as being the likely charge and shall not be regarded as an agreed fee for the work or transaction unless specifically confirmed in writing as such by the Supervising Partner.

h) Any rates agreed with you will be subject to periodic reviews (typically on 1st January of every year) and any changes notified to you in writing. In the event that we stop acting for you on whatever basis in accordance with the provisions of clause 9 below, unless otherwise agreed, you will be liable, as set out in this clause, for all charges and disbursements incurred up to the point that we stop acting for you, despite the fact that we might not have completed what we were instructed to do. You will also be liable for such further charges or disbursements which we may unavoidably be required to incur (for example Court costs). We may also charge you (at our standard rates) for the cost of extracting files or data and delivering the same to you.

4. Billing and paying arrangements

a) Our invoices will generally only contain a brief summary of the work carried out on your behalf. You have the right to ask for a more detailed breakdown if you wish.

b) Depending on the nature of the case we will render invoices to you on a monthly or quarterly basis. We reserve the right to send invoices on a more frequent basis if your matter requires an unusually large amount of work, or if it is otherwise appropriate to do so.

c) Disbursements will, where relevant, include the amounts charged by the Greffe in relation to the progress of a case and also the cost of expert reports. We reserve the right to require payment in advance of significant disbursements which we agree to incur on your behalf. We may also send disbursement only invoices in some circumstances.

d) Where we are instructed by more than one person jointly, liability for our charges and disbursements is shared between those persons on a joint and several basis so that we may recover from any one or more of those persons individually or together the full amount of our charges and disbursements notwithstanding any agreement which may be reached between those persons.

e) Where a matter or transaction is carried out through a company, limited partnership, limited liability partnership or other corporate vehicle established, or to be established, for that purpose, the members will remain jointly and severally responsible for payment of our fees and disbursements in connection with that matter or the transaction in question. Where we are asked to invoice that entity and agree to do so, if the invoice has not been settled in full we may cancel the amount outstanding and invoice that amount plus accrued interest to any member.

f) Where a matter or transaction is carried out on the instruction of an entity or individual as trustee, the trustee will be personally liable for payment of our fees and outlays in connection with that matter or transaction, unless otherwise agreed in writing.

g) Unless otherwise agreed, all invoices, whether interim or final, should be settled upon receipt. Interest may be charged on invoices that are not paid on time at 3% above the HSBC Bank Plc base rate from time to time after one calendar month has elapsed from the date of the invoice until payment.

h) We may ask that you make payments of anticipated accounts and disbursements in certain circumstances. In particular, we have the right to request payment for work before it is commenced and to suspend or terminate all or any part of your instructions to us and any work done for you, without further obligation to you, in the event that any such request for payment on account or any invoice remains unpaid.

i) Prior to any major hearing on your behalf, we normally require all outstanding costs and fees to be paid at least two weeks before a hearing.

j) We may also apply any amount held on your behalf in any matter in our client account in or towards payment of any sum requested or due from you as regards any other matter whether on account or in respect of an interim, disbursement only, or final invoice or interest, or any combination of these.

k) In addition to any right that we may have at law, we are also permitted to retain your files or any of your papers or property or sums held by us on your behalf until all monies due from, or payable by, you to us have been paid provided that this does not prejudice your rights. We will advise you if we decide to exercise this lien.

l) If you have any questions regarding your invoice please see clause 7.

5. Costs payable by and to other parties

a) Whatever the outcome of your case, you will be liable to us for our fees and disbursements. In general, the successful party in any litigation is entitled to its “recoverable costs”. The maximum Advocate’s fees recoverable (in the Royal Court) are revised annually and details are available on request. No Advocate’s costs are recoverable in the Petty Debts Court and an award of costs against the other party is only worth the ability of that party to pay it.

b) If you lose your action you may expect to have to pay not only our costs and fees but the recoverable costs of the other party as well. The Court does have the ability to review the other party’s costs in this event to make sure that they are reasonable in amount and reasonably incurred.

c) If costs are payable by someone else, then we will charge you for any steps that have to be taken to seek to recover those costs from that person on these standard terms of business.

6. Cash payments, use of client account and source of monies paid to us

a) We cannot accept cash amounts of more than £500 in payment for any invoice, or any sum, due from you to us or payable in relation to any matter.

b) We cannot and do not allow our client account facilities to be used other than for handling payments in relation to a matter that we are dealing with on your behalf.

c) As a matter of law, we are required to operate anti-money laundering checks and procedures in respect of services which are classified as the conduct of prescribed business. We reserve the right to apply such checks and procedures (including in particular confirmation of identity and address/place of business and verification of capacity to give instructions in the case of limited companies) in respect of all matters in which we are instructed and at any time. In addition, we reserve the right to refresh and update any such checks and procedures.

d) Any failure to provide such information as we request in order to enable us to carry out such checks enables 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 Guernsey. 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 including the relevant authorities. 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.

e) In the event that we give disclosure to the relevant authorities, we shall be under no obligation to advise you that disclosure has been made because in doing so we might ourselves be committing an offence (it is called “tipping off”) and shall be entitled to stop acting for you pending consent from the relevant authorities to proceed with the transaction or matter.

f) We may use electronic databases to assist us to verify information you have given us in relation to our money laundering obligations.

7. Queries

a) If you wish to query an invoice please let us know as soon as possible. You should first raise your issue with the fee earner who has raised the invoice. If you are unable to resolve your issue, please refer to our complaints procedure.

b) If all or part of the invoice remains unpaid the firm may be entitled to charge interest. You are referred to clause 4(g) for further information about the rate of interest payable.

8. Interest and Commissions

a) If we hold money on your behalf, we will account to you for the interest earned on it in accordance with the law, although we may be entitled to offset any interest against monies due to us in accordance with clause 4(j) above.

b) In the event that commission is received by us from a financial institution or others, details of the commission and of the amount of such commission, or how it is calculated, will be supplied. If we are to retain this commission, we will seek your consent, but make it clear that you will be able to withhold that consent.

9. Termination

a) Once instructed on a matter, we will continue to act for you in that matter until its conclusion unless:

i) you give us written notice of the termination of your instructions;
ii) fees which have been invoiced are overdue for payment;
iii) it is not appropriate or in your best interests for us to continue to represent you (for example where a conflict of interest has arisen).

b) If we cease to act for you in any of the above circumstances we will inform you and you will be responsible for payment of all fees and disbursements up to the date of termination and any costs or disbursements reasonably incurred in connection with the transfer of the work to another lawyer of your choice. We reserve the right to retain your papers and documents which relate to the transaction or matter until the fees and disbursements have been paid.

c) We also have the right to stop acting for you if you do not provide satisfactory evidence of your identity, or the identity of any other relevant person or entity, or any other details under clause 6 above, or if we are otherwise required, or deem it appropriate, in our absolute discretion, to stop acting for you by virtue of compliance with our obligations referred to within clause 6 above.

10. Limitations on our Liability

a) Nothing in these Terms shall exclude, restrict or prevent action in respect of any liability arising from:

i) fraud;
ii) dishonesty;
iii) reckless disregard of professional obligations;
iv) death or personal injury caused by negligence; or
v) other liabilities which cannot be lawfully limited or excluded.

b) The Guernsey Bar Council Rules 2010 presently require that firms of Guernsey Advocates have minimum professional liability insurance cover of £2 million (Minimum Cover Amount). The Minimum Cover Amount may be varied by the Guernsey Bar at its annual general meeting. However, nothing in these Terms shall operate to exclude our liability below the Minimum Cover Amount.

c) In the event that the amount set out in clause 10(d) below is below the Minimum Cover Amount, the Minimum Cover Amount shall apply instead of the figure referred to in that clause.

d) Subject at all times to clauses 10(a) and 10(b), and unless otherwise specifically agreed in writing to the contrary in relation to any particular matter by a Partner of Babbé LLP, with regard to any liability which we would otherwise have to you, or any third party, in respect of all loss or damage claimed, or any costs incurred, on whatever basis claimed (whether in contract or tort), we:

i) exclude any liability of whatever nature arising as a direct or indirect consequence of our compliance in good faith with any statutory, professional or other regulatory obligations; and
ii) limit our liability, in total to the maximum aggregate sum of £10,000,000 (TEN MILLION POUNDS) (including interest and costs) arising out of:

A. the same matter or transaction;
B. the same act or omission;
C. a series of related acts or omissions;
D. the same act or omission in a series of related matters or transactions;
E. similar acts or omissions in a series of related matters or transactions.

e) If we are jointly or severally liable to you with any other party, whether or not in fact you claim against another party, subject at all times to clauses 10(a) and 10(b) above:

i) we shall only be liable to pay the proportion which is found to be fairly and reasonably due to our fault;
ii) we shall not be liable to pay you the proportion which is due to the fault of another party or for which another party would otherwise be liable.

f) Subject to clauses 10(a) and 10(b) above, any sums due from us shall be reduced by the proportion for which another party would have been found liable if either:

i) you would also have brought proceedings or made a claim against them, or
ii) we had brought proceedings and made a claim against them.

g) Without prejudice to reliance on clause 10 above and subject to clauses 10(a) and 10(b) above, any such exclusions of, or limits on, liability contained in these Terms are intended to benefit any Partners, employees or consultants against whom you may seek to claim, on any ground whatsoever.

h) You agree that you will make no claim against an individual Partner, employee or consultant and that any claim you might make will be against Babbé LLP.

i) Notwithstanding clause 10(h), in the event that you seek to enforce a claim against Babbé LLP or its Partners, employees or consultants, you agree that such claim may only be enforced against those assets or property which are partnership assets or property of Babbé LLP.

j) If any part of these Terms which seeks to limit or exclude liability 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, or otherwise, the remaining provisions shall continue to be effective.

11. Communication

a) We will communicate with you by the most appropriate means. This will be by letter, telephone, fax or email. In relation to email, we do not encrypt messages unless by prior agreement and cannot guarantee the security and confidentiality of any transmission in any event and accept no responsibility or liability in respect of the same. Whilst every reasonable step is taken to check all correspondence with anti-virus software, we cannot guarantee that email transmissions will be free from viruses. If you do not wish us to communicate with you by any particular method you must instruct us accordingly.

b) We reserve the right to record telephone calls.

12. Storage of files and papers

a) After completing our work in any matter in which we act for you, we are entitled to retain all files and documents which have come into existence in the course of us so acting for you until all fees and disbursements have been settled in full.

b) Thereafter, we will keep all documents, correspondence, memoranda and notes which have been created in the course of our acting for you, for 6 (six) years.

c) During this period we reserve the right, but have no obligation, to make electronic copies of such documents, correspondence, memoranda and notes and, save for original signed documents or any documents that you have asked us to deposit in safe custody, we reserve the right to destroy hard copies and store the remainder of the filing electronically. After 6 (six) years our continued retention (whether in electronic form or otherwise) of files or papers and documents (other than originals) is on the clear understanding that we have the right to destroy all such files at such times as we consider appropriate and unless we have been advised by you to the contrary at or prior to the conclusion of any matter in question. In accepting these terms we will treat you as having consented to the destruction of such files.

d) Should we need to retrieve files from storage, either in relation to new instructions, to act for you (where the archived files are relevant) or where you have asked us to retrieve specific documents or papers, we reserve the right to charge for such services.

13. Preservation of documents

As a party to litigation you are under a continuing duty to the other parties to disclose at the appropriate stage in the proceedings all documents (including video/audio recordings and electronically stored information) which are or have been in your possession, custody or are relating to any matter in question in the action. We will advise you about this specifically when appropriate. However, from the outset you must retain in a safe place all documents which could conceivably be relevant to your case, as we will need to review them in due course. If documents “go missing”, even inadvertently, the success of your matter may be severely prejudiced.

14. Data protection and registration

a) We are registered as a holder of personal data in relation to our clients and contacts under the Data Protection (Guernsey) Law, 2001. You may at any time request a copy of any personal data which we hold in electronic form about you. We reserve the right to use any data for marketing and promotion of other services offered by Babbé LLP, unless requested by yourself in writing not to do so.

b) Where information is already in the public domain relating to a matter or transaction, we may disclose that information in our marketing materials and to publishers of legal directories. To the extent that such information is not already in the public domain, we will only disclose such information with your consent.

15. Confidentiality

You agree that Babbé LLP may, if required by insurers, auditors or other advisers, or if we decide to supply such to insurers in connection with a potential claim against Babbé LLP, provide them with information (including documents) relating to you on a matter or transaction in which the firm is acting for you or has acted for you.

16. Complaints

a) If you are unhappy with the service which has been provided by the firm you should contact the person having day to day conduct of the matter concerned, or the Supervising Partner.

b) If the problem cannot be resolved informally then the matter will be dealt with under our Complaints Procedure.

17. Variation and publication of these Terms

a) We reserve the right to vary these Terms from time to time including during the course of acting for you in any particular matter. Where we do vary these Terms in the course of acting for you, we shall use reasonable efforts to draw to your attention any such variations.

b) A copy of these Terms and any variations thereto from time to time in force will be sent to you in hard copy form upon request at the outset of any matter. However, these Terms and any future variations thereto are published on the Babbé LLP website at www.babbelegal.com by way of public notice to all clients and prospective clients. If we have given you written notice of the existence of the Terms on our website and you have not requested a hard copy to be sent to you, then, by the publication of these Terms and any variation thereto on our website, you shall be deemed to have agreed these Terms.

18. Working for other clients

We reserve the right to provide legal services to any other clients at our discretion. Our acceptance of instructions from you in any matter should not be treated as meaning that we will not act for other clients in the same matter nor against you in other matters. We shall, however, ensure that where in the course of acting for you we become aware of or hold confidential information, this will be adequately safeguarded and will not at any time be used against your interest. In any cases where we consider there may be any conflict of interest and are acting for two parties in the same matter, we shall obtain the consent of both parties to us acting for both of them.

19. General

a) Unless we agree in writing to the contrary, the advice provided and the work carried out by us in relation to any matter is intended to be relied on only by you and by no other person.

b) You agree not to make our work, including any advice given to you, 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.

c) Unless specifically otherwise agreed by us in writing on each occasion, we will only advise on Guernsey jurisdiction, law and procedure. If the matter involves issues of non-Guernsey jurisdiction, law or procedure, subject to your agreement, we shall engage lawyers qualified in the relevant jurisdiction to provide specific advice on those aspects.

d) Any matter upon which we act for you may give rise to tax and/or accountancy implications. We do not provide any tax or accountancy advice nor undertake to advise you on any such tax or accountancy implications.

e) Any advice provided by us will be based and dependent upon the instructions, information and documentation supplied by you and those you have specified will instruct us on your behalf. We will not be responsible for any consequences which may arise from a delay or failure by you or them to give us the instructions, information and documentation. We rely upon the accuracy of information provided to us by you, or by others on your behalf. Unless otherwise agreed in writing, we will not seek to verify or check that information and you acknowledge that we are entitled to rely on that information when carrying out your instructions.

f) We do not advise on the merits of any transaction that you may be entering into. You are responsible for any commercial decisions that you make.

g) If you request us to provide advice or other legal services in an abbreviated manner or timescale, you acknowledge that you may not receive all the information that you would have done had we provided a fuller report or had more time in which to carry out the work.

h) These Terms shall be governed by and interpreted in accordance with Guernsey law and any claim arising out of any matter we handle for you shall be subject to the exclusive jurisdiction of the Royal Court of Guernsey (save in relation to the enforcement of any judgment obtained by us against you). Each party irrevocably waives any right it may have to object to an action being brought in that Court, to claim that an action has been brought in an inconvenient forum or to claim that the Court does not have jurisdiction.

i) Following completion of any matter, or termination of any instruction, we are not under any obligation to inform you of any date by which you are required to do or refrain from doing an act to protect an interest or legal right.

j) We shall have no responsibility for loss, damage or delay howsoever arising caused by circumstances outside our control of whatsoever kind including, without limitation, fire, flood, storm, earthquake, wars and riots.

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