Our Business Relationship

Standard Terms of Engagement

Introduction

1. Thank you for instructing Payne Velasco Solicitors. These terms set out the basis on which we provide legal services to our clients. This document and the covering letter which accompanies it should be retained for future reference. 

Client and Matter

2. At the outset, we will specify in correspondence the identity of the party to be regarded as our client and the task or tasks which we are to undertake on behalf of our client.
3. If the client is a company, it will be necessary for the client to provide a board resolution authorising us to act on its behalf. We will provide a draft of the necessary resolution. If the duly signed board resolution is not returned to us within a reasonable time, regrettably we cannot act for the client and will stop advising the client until the resolution is provided.

Anti-money Laundering and Terrorist Financing

4. In order to comply with anti-money laundering and terrorist financing legislation, we will need to be satisfied that we have sufficient proof of the identity of our clients. We will also need to obtain information on the nature, purpose and source of funding for transactions in respect of which we have been retained. A list of information and documents required by us for the purpose of compliance with anti-money laundering and terrorist-financing legislation is sent to the client separately or along with the covering letter which accompanies this document.
5. If we do not obtain the required information and documents within a reasonable time or if we are not satisfied that the information and documents provided are sufficient, regrettably we cannot act for the client and will stop advising the client until all required information and documents are provided to our satisfaction and in satisfaction of the legal requirements.
6. The client avows that the funds used by the client to pay the firm’s costs, disbursements and other charges (including any deposit(s) of money on account) are from a legal source and are not the proceeds of illegal activity.

Instructing Payne Velasco

7. In order to avoid any misunderstanding, we will specify, in correspondence, the name of the individual or individuals from whom our day-to-day instructions will come. These instructions may be given to us on the telephone, by Skype, in conference or in writing.
8. For the sake of convenience, we are happy to communicate with our clients using normal, non-encrypted email. This form of email is not secure and there is a risk to a client if we communicate confidential information in this way. We cannot 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.
9. Although we regularly carry out virus checks, we advise our 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. We do not accept any liability for any virus that may enter a client’s systems or data by these or any other means.
10. We assume that we have each client’s consent to communicate with the client and related parties by email, unless we are advised in writing otherwise in specific cases.

Responsibility for Work

11. All matters handled by us are overseen by a partner, whose name will be specified in correspondence. However, in order to provide our services as cost-effectively and efficiently as possible, some of the day-to-day conduct may be dealt with by solicitors or other staff, in consultation with the relevant partner.

Confidentiality

12. We keep our client’s business confidential and do not discuss it with any external person or organisation without permission. Under certain circumstances, disclosure of confidential information can be mandatory, for example, as required by law or by an order of a court of competent jurisdiction. In such instances, we may be required to make disclosure without the knowledge of the client.
13. Legislation on money laundering and terrorist financing has placed solicitors under a legal duty in certain circumstances to disclose information to the authorities where the solicitors have reason to know of or suspect the existence of “criminal property” or “terrorist property”. In such circumstances, we may not be able to proceed further until we have received permission from the authorities. If this happens, we may be prohibited from informing you that a disclosure has been made or of the reasons for it. We may also cease acting for you at any time and would let you have our bill for the work done up to that date.
14. In certain circumstances, it may be necessary for us to engage an agent, such as, for example, a translator or a law costs draftsman, to enable us to deal with a client’s matter. In such instances, disclosure of confidential information may be necessary.
15. As part of our commitment to providing a quality, cost-effective service, our insurers or potential insurers may periodically review our files on a sample basis to confirm that we are 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 client specifically requests.

Fees

16. We will charge fees by reference to the amount of time spent by individuals at Payne Velasco who will record time in six minute units. Our hourly rates for our fee-earners vary according to the seniority of the personnel involved. However, if any other factors (such as the nature and complexity of the work and the value of the transaction) become important, these will be taken into account in calculating our fees. Our hourly rates are reviewed periodically but will always remain competitive. Any new hourly charge-out rates will be reflected in the first bill to which the new rates apply.
17. Time spent on a client’s 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, legal and factual research, and attending at Court or Tribunal.
18. Hong Kong law firms are not generally able 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, our fees will still be payable.
19. Under Hong Kong law, “contingency fees” or “success fees” are not permissible. We do wish to emphasise that payment of our invoices is not contingent or dependent on the occurrence of any event. Our fees will still be payable, regardless of the outcome of any litigation we commence on your behalf.
20. We may from time to time, at our sole discretion, apply a goodwill discount to the time-costs recorded in our invoice, however, this is not to be taken as a promise that other invoices will be discounted by the same amount or at all.
21. Estimates of costs and charges are given as a guide to assist a client in budgeting but should not be taken as a definitive quotation unless this is specifically agreed in writing.
22. In the event of a solicitor and own client taxation of our fees by the Court, we reserve the right to charge our fee-earner’s time at such hourly rate as may be allowed by the Court on taxation in accordance with the High Court Scale of Costs.

Disbursements and Other Charges

23. In addition to our own fees, any disbursements incurred (such as photocopying charges, postage and fax charges, telephone, printing and travel costs) will be included in our invoices. In addition, we are likely to incur expenses and/or payments to third parties on a client’s behalf. Such items include but are not limited to barrister’s fees and expert’s fees, and will be included in our invoices. Usually disbursements will be billed at the same time as our own fees, although we may issue a separate bill for disbursements only.
24. If we have 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, we may include these additional expenses as a separate item within our invoices.

Air Travel and Work Outside of Hong Kong

25. If members of the firm are required to travel outside of Hong Kong in respect of a client’s matter, then ordinarily they will travel business class. We reserve the right to charge for travelling time at the fee-earner’s usual hourly rate. Clients will pay the reasonable hotel and living expenses incurred by the firm.

Billing

26. Payne Velasco shall be entitled to render interim bills.
27. Regular billing will usually be sent to clients (unless otherwise agreed) enabling clients to keep track of costs.
28. Bills will contain a description of work performed during the relevant period. If a client seeks any additional explanation of charges, this can be provided on request. The client can request an indication of costs at any time and we can agree to a cost limit and review date if preferred.

Payment Information

29. Clients may make payment by a cheque payable to “Payne Velasco” or by telegraphic transfer to the following account:

 

Account:                      Payne Velasco client account

Account number:        808-777171-838

Beneficiary Bank:       HSBC Hong Kong

Bank Address:            1 Queen’s Road Central, Hong Kong

Bank Code:                 004 (for local payment)

SWIFT Address:         HSBCHKHHHKH (for telegraphic transfer)

 

Please quote our file reference when remitting funds and ensure that the full amount of the payment is received into our account without deduction of bank or other charges.

Client Account Money

30. All monies that we receive from clients or from third party for the purposes of the legal services that we provide to our clients will, until utilisation, be kept segregated from our own money in a designated client’s account. We will keep our clients advised of the utilisation of funds received from time to time.
31. We shall have the right to convert monies which are paid to Payne Velasco in a foreign currency to Hong Kong dollars.
32. Unless otherwise agreed with the client in writing, the Firm shall be entitled to keep any interest which may accrue on monies held in client account.

Payment

33. Our bills are payable on presentation unless we have agreed otherwise in writing. If a bill remains unpaid for more than seven (7) days or if a client does not within seven (7) days meet a request from us for a payment on account of costs and/or disbursements, then we reserve the right to decline to act further. In such a case, the full amount for work done and disbursements will be charged to the client.

34. Where a client’s account is overdue, we are entitled to retain documents and papers belonging to that client until our account is settled.

35. If instructions for a particular matter are given to us by more than one (1) person or company who are collectively regarded as our client, we may recover all of our fees and disbursements regarding the matter from any one (1) or more of them at our sole discretion. This includes situations where one (1) person or company instructs us on behalf of another.
36. If arrangements are made for a third party to pay any of our fees or disbursements, or a Court orders a third party to pay any part of our fees or disbursements, our client remains liable to pay them to the extent that the third party does not pay them when due.
37. You have a right under the Legal Practitioners Ordinance to apply to the High Court to have a disputed bill taxed, that is, for it is to be assessed by the Court. If the application is made within 1 month of the receipt of the bill, the Court will automatically arrange for the bill to be assessed. If you apply for taxation after the 1 month period, then the Court may impose specific terms before the taxation proceeds. If there is a delay of more than 12 months, the Court will only permit the bill to be taxed in special circumstances.
38. You will forthwith pay to us on demand (as often and whenever such demand is made) all costs, charges and expenses (including without limitation: (i) our own fee-earners’ time-costs; (ii) any legal fees we may incur; and (iii) all costs, charges and expenses incurred ascertaining your whereabouts), on a full indemnity basis, incurred by us in connection with or arising out of any action or other measures taken by us or our agents in respect of the recovery or attempted recovery of any monies due, owing or payable by you hereunder.
39. Failure by us to insist upon strict performance of any of these terms and conditions, or delay in exercising any of our remedies, shall not constitute a waiver of such term or condition or a waiver of any default, nor of the remedy.

Payment on account

40. It is our usual practice to ask clients to make payments on account of anticipated costs and disbursements. We will notify our clients of this requirement on a case by case basis. Our total fees and expenses may be greater than any advance payments. It may be that at a later date a sum or further sums is required by us if it appears appropriate because of, for example, a commitment to counsel or to replenish monies already paid on account when utilised. At our discretion, some or all of the monies so paid may be applied towards any outstanding bill of Payne Velasco for the relevant client.
41. If we are holding any funds on behalf of a client at a time when there is an outstanding fee note due to us from the client, we shall be entitled to apply by way of set off so much of the funds we are holding for the client in discharge of the outstanding fee note.

Interest on unpaid bills

42. In many cases, work is conducted by us well before a bill is rendered to a client. If, in addition, a bill is not paid within thirty (30) days of presentation then this places an unreasonable cash flow burden upon us. We
    therefore reserve the right to charge interest at the rate of two percent (2%) of the total unpaid balance for each month or part of a month that payment is in default, until settlement. 

Litigation

43. Where we are instructed to act in respect of a contentious matter, the client will be responsible for our fees and disbursements incurred. Payment of our bills in full is due whether or not our 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.

Conflict of Interest

44. If a client becomes aware of a possible conflict of interest between that client and another client for whom we act, the client should raise it with us immediately. If a conflict of this nature arises, our client agrees that it will be for us to decide, taking account of legal constraints, applicable professional conduct rules and the client’s and the other client’s interests and wishes, whether we should continue to act for both parties, for one party only or for neither party. 

Limitation of Liability

48. We will rely upon the information and instructions provided by our clients or by others on our client’s behalf. Our advice will reflect the nature and extent of information and instructions received and the timescale under which we are operating. If we are asked to provide advice in an abbreviated format or on a short timescale, our client may not receive all the information our client might have otherwise have obtained. Our advice is provided in relation to a specific set of facts and as a result we do not accept any responsibility for the accuracy of that advice in other situations.
49. We will not be responsible for any failure to advise or comment on any matter which falls outside the scope of its instructions.
50. We shall not be liable for failure to perform or for any other delay in performing our obligations if the failure or delay is due to causes beyond our 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.
51. If a client has agreed with any other adviser any limitation on that adviser’s liability, we will not be liable for anything that our client could have claimed from that adviser but could not do so because of that limitation.
52. Our liability to our client in respect of breach of contract or breach of duty or negligence or otherwise arising out of or in connection with our engagement or the services we provide shall be limited to the extent permitted by law to that proportion of the loss or damage (including interest and costs) suffered by our client which is ascribed to us by a Court of competent jurisdiction allocating proportionate responsibility to us having regard to the contribution to the loss and damage in question of any other person responsible and/or liable to our client for such loss and damage.
53. 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. Our liability to our client in respect of breach of contract or breach of duty or negligence or otherwise arising out of or in connection with our engagement or the services we provide in non-contentious matters shall be limited to the amount of fees paid by the client. In the event that such limitation of liability were to be held to be unenforceable by an appropriate Court, then our liability in such circumstances would be limited to the amount of our ESSAR indemnity coverage.
54. Nothing in this document or the covering 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

52. The services provided by us to our client are solely for that client’s benefit and we accepts no responsibility to anyone else.
53. Our advice may not, without our prior written consent, be disclosed to any other party. In particular, our clients agree not to refer to us or our advice in any public document or communication without our prior written consent.
54. If we are requested to introduce other professional advisers, or third parties (such as accountants, foreign
    lawyers and surveyors) we will endeavour to do so. Unless agreed by us otherwise, our client will be responsible for payment of their fees and charges directly. They are responsible for any advice given by them directly to our client and we shall not be liable for any act or omission by them.

Audit enquiries

55. From time to time, we receive requests either directly from a client or from a client’s accountants and/or auditors for confirmation as to whether we are instructed. In such cases, our response shall always be addressed directly to our client for onward transmission. Such requests may require us to confirm whether any matters are of a litigious nature, whether any deeds or documents are retained by us and also whether there are any outstanding bills owed by our client to us or any work in progress at any given point in time. We reserve the right to charge on a time basis for work undertaken in responding to such requests.

Tax advice

56. Unless specifically agreed with our client in writing, our advice will not extend to advice on the tax implications of the work on which we are advising.

Copyright an intellectual property

57. We retain all copyright and intellectual property rights in all material developed, designed or created by us during the course of complying with instructions.

Document return and storage                                                                                                                         

58. At the end of a particular matter and upon payment of all outstanding bills we will, if requested, return to our client all of the original documents which the client has sent to us or which we may be holding together with any other important documents which we consider our client may wish to hold. When we close our file, we will send the documents and correspondence that we retain to a commercial storage company from where they can be retrieved for the next three (3) to fifteen (15) years, depending on the nature of the matter. Thereafter, and unless for some reason it is obvious to us that the documents need to be retained for a longer period (for example, if we are holding title deeds or a will for safe-keeping), they will be destroyed with no further notice to the client, or otherwise in accordance with the procedures recommended by the Law Society of Hong Kong. We reserve the right to charge for time spent and costs incurred if requested to retrieve information which involves more than the mere delivery of documents.

Termination

59. A client may terminate our appointment as solicitors at any time by giving us reasonable written notice. We may terminate our appointment as a client’s solicitors by seven (7) days prior written notice to the client if:-
    1. the client fails to pay our bills;
    2. the client fails to provide us with adequate instructions;
    3. the client fails to comply with a request for a payment on account;
    4. we consider that client’s interests would be better advanced by other representation;
    5. we find ourselves in a position of conflict of interest;

or upon any other ground(s) for lawfully terminating the retainer.

60. If our appointment as a client’s solicitor is terminated by the client or by us, the client must pay our fees and expenses for work done and expenses incurred up to the date on which the termination takes effect. Where appropriate, we will charge fees and disbursements for transferring the matter to another adviser.
61. If we are on record at Court as acting for a client in any proceedings, the consent of the Court may be required before we can be removed. To that extent, a client’s right to terminate our engagement may be restricted.
62. If we do not accept additional assignments from a client, the solicitor/client relationship with that client will be considered terminated upon completion of the specific service that we have been engaged to provide. If we are later retained and agree to provide further or additional services, the solicitor/client relationship will be revived, subject to these terms and any variation of them by us. The fact that we may inform a party of developments in the laws or other matters of interest by newsletter or otherwise should not be taken as a revival of any solicitor/client relationship. Moreover, we do not accept any obligation to inform any party of such developments in the law or other matters unless we have been specifically engaged in writing to do so.

Future instructions

63. Unless otherwise specified by us, these terms of engagement shall apply to all future matters wherein we act on a client’s behalf.

Professional referrals

64. From time to time, we receive instructions upon the introduction of a professional firm to assist one of its clients. Until such a time as we have been introduced to and accepted a solicitor/client relationship with that professional firm’s client, we shall regard the professional firm as our client and shall at the appropriate time render our bill to that professional firm.

Marketing

65. We comply with the Personal Data (Privacy) Ordinance, Chapter 486 (“PDPO”) and the personal data that you supply to us and to which PDPO applies may only be used:-
    1. to provide legal services to you either to the extent that we receive and continue to receive instructions from you in accordance with our engagement letter or in respect of other instructions from you from time to time and any matters ancillary thereto;
    2. to meet the requirements of Practice Direction P and Hong Kong’s anti-money laundering laws; and
    3. for the marketing of our legal services where this has been consented to by you
66. Unless you inform us otherwise, you agree that we may include, in a list of matters which we use for promotional and internal purposes, the fact that we represent you, the names of the parties, the dollar value of the matter (if relevant) and a general description in respect of all matters which have been publicly disclosed on which we represent you.

Variation

67. We reserve the right to vary the Standard Terms of Engagement at any time and from time to time notwithstanding that the Firm has already been retained by the Client.
68. The current version of the Standard Terms of Engagement published on our website (www.payneclermont.com) shall be the prevailing, applicable, and binding terms from the time of publication and shall supersede any previous versions of the Standard Terms of Engagement.
69. The Standard Terms of Engagements may not be varied unless agreed by us in writing. A variation to the Standard Terms of Engagement is valid only if it is in writing.

Governing Law

70. All of our 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 that we may advise on documents governed by the laws of other jurisdictions, we will not be advising on any specific implications of the laws of those jurisdictions.
71. These terms and the services we provide to our clients 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 Courts. It is agreed that we may bring proceedings against a client in other jurisdictions at our option should we consider it appropriate to do so.