Terms of Engagement
1.1 These Standard Terms of Engagement (Terms) apply to any current engagement and also to any future engagement, whether or not I send you another copy of them. I am entitled to change these Terms from time to time, in which case I will send you amended Terms. My relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.
2.1 The services I am to provide for you (the Services) are outlined in my letter of engagement along with any further instructions that you provide to me in writing (or that I record in writing).
3.1 I will obtain from you contact details, including email address, postal address and telephone numbers. I may provide documents and other communications to you by email (or other electronic means). You will advise me if any of your contact details change.
3.2 I will report to you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the work being undertaken.
4.1 Fees: The basis upon which I will charge my fees is set out in my engagement letter.
- If the engagement letter specifies a fixed fee, I will charge this for the agreed scope of the Services. Work which falls outside that scope will be charged on an hourly rate basis. I will advise you as soon as reasonably practicable if it becomes necessary for me to provide services outside of the agreed scope and, if requested, give you an estimate of the likely amount of the further costs.
- Where my fees are calculated on an hourly basis, the hourly rate will be set out in my letter of engagement. Time spent is recorded in six-minute units.
4.2 Disbursements and Third Party Expenses: In providing the Services I may incur disbursements and payments to third parties on your behalf. You authorise me to incur these disbursements (which may include such items such as search fees, court filing fees, registration fees and travel and courier charges) which are reasonably necessary to provide the Services. You also authorise me to make payments to third parties on your behalf which are reasonably required to undertake the Services (which may include items such as experts’ costs or counsel’s fees). These will be included in my invoice to you, shown as “disbursements” when the expenses are incurred (or in advance when I know I will be incurring them on your behalf).
4.3 GST: My services will usually attract Goods and Services Tax (GST). If this is the case, GST is payable by you on my fees and charges.
4.4 Invoices: I will send interim invoices to you, usually monthly, and on completion of the matter, or termination of my engagement. I may send you invoices more frequently when I incur a significant expense or undertake a significant amount of work over a shorter period of time.
4.5 Payment: Unless otherwise agreed payment for my fees (or expected fees) and disbursements must be made in advance of me performing the Services and the disbursements being incurred. Given that I am a barrister sole, this means that unless your instructions are ones to which an exemption applies, such payment must be paid into my instructing solicitor’s trust account.
If payment for my services has not been made in advance of me performing the Services (whether by agreement or otherwise) my invoices are payable within 14 days of the date of the invoice, unless an alternative arrangement has been agreed.
- You authorise my instructing solicitor to pay my fees and other expenses from funds held in his or her trust account on your behalf on provision of an invoice to you in accordance with the Lawyers and Conveyancers Act (Trust Account) Regulations 2008.
If your account is overdue I may:
i require interest to be paid on any amount which is more than 14 days overdue, calculated at the rate of 15% per annum;
ii stop work on any matters in respect of which I am providing services to you;
iii require an additional payment of fees in advance or other security before recommencing work;
iv recover from you in full any costs I incur (including on a solicitor/client basis) in seeking to recover the amounts from you, including my own fees and the fees of any collection agency.
- If my instructing solicitor is Clayton Williams (Patient & Williams) his trust account number is: 12 3191 0027188 02 (ASB). Please include both your name and "A Bailey" as references.
4.6 Third Parties: Although you may expect to be reimbursed by a third party for my fees and expenses, and although my invoices may at your request or with your approval be directed to a third party, you remain responsible for payment to me in accordance with these Terms if the third party fails to pay me.
4.7 Legal Aid: If I am acting for you pursuant to a grant of Legal aid then the Services I provide are also governed by the Legal Services Act 2011 and the associated regulations. Legal Aid is administered through the Ministry of Justice. I will submit invoices in relation to your grant of aid to the Ministry of Justice/Legal Services Commissioner. The Ministry of Justice/Legal Services Commissioner will write to you about any conditions or repayment obligations that you may have in relation to the grant of legal aid and your rights as an applicant or recipient of legal aid. You should be aware that legal aid is not always free and in some cases must be repaid. You should read these letters carefully and keep them for later reference.
You must let the Ministry of Justice/Legal Services Commissioner know if there is any change in your and/or your partner’s contact details, employment status, family circumstances or financial details.
Confidentiality and Personal Information
5.1 Confidence: I will hold in confidence all information concerning you or your affairs that I acquire during the course of acting for you. I will not disclose any of this information to any other person except:
- to the extent necessary or desirable to enable me to carry out your instructions; or
- as expressly or impliedly agreed by you; or
- as necessary to protect my interests in respect of any complaint or dispute; or
- to the extent required or permitted by law.
5.2 Personal information and Privacy: In my dealings with you I will collect and hold personal information about you. I will use that information to carry out the Services and to make contact with you about issues I believe may be of interest to you. Provision of personal information is voluntary but if you do not provide full information this may impact on my ability to provide the Services.
5.3 Subject to clause 5.1, you authorise me to disclose, in the normal course of performing the Services, such personal information to third parties for the purpose of providing the Services and any other purposes set out in these Terms.
5.4 I may disclose your name and address to third parties such as credit agencies to perform a credit reference or to undertake credit management or collection processes if it is reasonable to do so.
5.5 The information I collect and hold about you will be kept at my offices and/or at secure file storage sites (including electronic file storage sites) elsewhere. If you are an individual, you have the right to access and correct this information. If you require access, please contact me.
Documents, Records and Information
6.1 I will keep a record of all important documents which I receive or create on your behalf on the following basis:
- I may keep a record electronically and destroy originals (except where the existence of an original is legally important).
- At any time, I may dispose of documents which are duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to me.
- I am not obliged to retain documents or copies where you have requested that I provide them to you or to another person and I have done so, although I am entitled to retain copies for my own records if I wish to do so.
6.2 I will provide to you on request copies or originals (at my option) of all documents to which you are entitled under the Privacy Act 1993 or any other law. I may charge you my reasonable costs for doing this.
6.3 Where I hold documents that belong to a third party you will need to provide me with that party’s written authority to uplift or obtain a copy of that document.
6.4 Unless you instruct me in writing otherwise, you authorise me and consent to me (without further reference to you) to destroy (or delete in the case of electronic records) all files and documents in respect of the Services 7 years after my engagement ends (other than any documents that I hold in safe custody for you or are otherwise obliged by law to retain for longer). I may retain documents for longer at my option.
6.5 I may, at my option, return documents (either in hard or electronic form) to you rather than retain them. If I choose to do this, I will do so at my expense.
6.6 I own copyright in all documents or work I create in the course of performing the Services but grant you a non-exclusive licence to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without my written permission.
Duty of Care
7.1 My duty of care is to you and not to any other person. I owe no liability to any other person, including for example any directors, shareholders, associated companies, employees or family members unless I expressly agree in writing. I do not accept any responsibility or liability whatsoever to any third parties who may be affected by my performance of the Services or who may rely on any advice I give, except as expressly agreed by me in writing.
7.2 My advice is not to be referred to in connection with any prospectus, financial statement, or public document without my written consent.
7.3 My advice is opinion only, based on the facts known to me and on my professional judgement, and is subject to any changes in the law after the date on which the advice is given. I am not liable for errors in, or omissions from, any information provided by third parties.
7.4 My advice relates only to each particular matter in respect of which you engage me. Once that matter is at an end, I will not owe you any duty or liability in respect of any related or other matters unless you specifically engage me in respect of those related or other matters.
7.5 Unless otherwise agreed, I may communicate with you and with others by electronic means. I cannot guarantee that these communications will not be lost or affected for some reason beyond my reasonable control, and I will not be liable for any damage or loss caused thereby.
Limitations on my Liability
8.1 To the extent allowed by law, my aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with my Services is limited to the amount available to be payable under the Professional Indemnity Insurance which I hold.
9.1 You may terminate our retainer at any time.
9.2 I may terminate our retainer in any of the circumstances set out in the Rules including the existence of a conflict of interest, non-payment of fees, and failure to provide instructions.
9.3 If our retainer is terminated you must pay me all fees, disbursements and expenses incurred up to the date of termination.