Precedent Standard Cost Agreement

Transcription

1 Precedent Standard Cost Agreement This Precedent Cost Agreement has been produced by the Law Society of South Australia for the benefit of the entire legal profession. It is designed to assist legal practitioners to observe compliance with the costs disclosure provisions contained in the Legal Practitioners Act 1981 (as implemented on 1 July 2014). Prior to using this document you should carefully read the Notes on Using the Precedent Cost Agreement and Schedule 3 of the Legal Practitioners Act 1981 (as implemented on 1 July 2014) to ensure that it is suitable for your purpose. If you have any questions about this document, please contact the Ethics and Practice Unit of the Society on or at ethicsandpractice@lawsocietysa.asn.au. 1. Introduction I/We refer to «our telephone discussion of / your letter of /my/our personal attendance with you on / your of» «date». I/we confirm that I/we am/are able to accept instructions to act for you and thank you for those instructions. Before commencing work I/we will set out in this letter the general terms on which I/we accept instructions. 2. Scope of the Legal Work 2.1 You have instructed me/us to «details». 2.2 I/we will accept instructions from you «name and/or title» representing you. 3. Doing the Work 3.1 The legal practitioner signing this letter will be the legal practitioner responsible for and in control of this matter. This legal practitioner is also the person whom you may contact with regard to legal costs. However there may be changes of legal practitioner responsible over time (which will be notified to you) and other legal practitioners and support staff may work on the matter as reasonably required. 1

2 4. Fees OPTION 1 TIME COSTING 4.1 I/we charge for our services on a time cost basis. You are also liable for disbursements described in section 5 and administrative service fees as described in section 7. (a) (b) (c) Fees charged for services are the product of the hours worked (divided into minimum units of 6 minutes or part thereof) multiplied by the hourly rates of the legal practitioners and other specified persons who did the work. The use of minimum units means that even if a particular task takes only say two minutes, it will be recorded and charged as a full six minute time unit. Hourly rates vary depending on the level of experience and expertise of the person involved. A schedule of rates is set out in the annexure hereto. These rates are inclusive of Goods and Services Tax (GST). At the end of each financial year, our rates will be increased by the amount of any increase in the national consumer price index, or (c) (d) (e) Our rates are fixed until the end of the current financial year. We will then advise you in writing of our proposed rates for the new financial year. You are not obliged to accept such proposed rates, but if you do not accept such rates we are entitled to cease acting for you. If you do accept the rates, either expressly or by paying bills expressly calculated upon such rates, they will be binding on you. Our rates of charge for time spent are different from the rates set out in the Scales of Fees published by the Supreme Court. Although time charging is common there may be other legal practitioners who would be prepared to act for you and charge according to the scale. You are entitled to seek independent legal advice regarding this or any other term of this agreement. Our rates may, and in some cases will, result in a higher charge than if the Court Scale of Fees were used. OR 2

3 (e) Our rates may well result in a lower charge than if the Court Scale of Fees were used. OR (e) Our rates are likely to result in a higher charge than if the Court Scale of Fees were used and other legal practitioners might well be prepared to do the work for a lesser fee. OPTION 2 SCALE FEES 4.1 I/We will charge for our services at the scale fixed by the Supreme Court, as varied by the Court from time to time [with the following variations: (if used, need to include a modified 4.1(d) and (e) above)]. It is a term of this agreement that any increase will apply automatically to you. A copy of the current scale is attached. [with this option, section 7 can be omitted] OR OPTION 3 FIXED FEES 4.1 I/We will charge you professional fees for a fixed fee of $# (AS APPLICABLE: because this is what we are entitled to charge in accordance with the [insert relevant name] Act) in addition to disbursements and administrative services as referred to in sections 5 and 7. (a) (b) This fixed fee is different from the rates set out in the Scales of Fees published by the Supreme Court. Although fixed fee charging is not uncommon for these types of services, there may be other legal practitioners who would be prepared to act for you and charge according to the scale. You are entitled to seek independent legal advice regarding this or any term of this agreement. This fixed fee may, and in some cases will, result in a higher charge than if the Court Scale of Fees were used. OR (b) This fixed fee may well result in a lower charge than if the Court Scale of Fees were used. 3

4 OR (b) This fixed fee is likely to be a higher charge than if the Court Scale of Fees were used. 4.2 This fixed fee will be subject to GST. 5. Disbursements 5.1 In addition to our fees we charge you for the out of pocket expenses incurred or paid on your behalf (called disbursements). 5.2 Out of pocket expenses incurred by us such as fees of barristers, agents, Government and local authorities fees, STD, international and mobile telephone calls and couriers are charged at the cost to us. We do not charge for local telephone calls. 5.3 Should we see a need to incur expenses on your behalf which are unusual as to their nature or extent (including in litigious matters expenses which are unlikely to be recoverable from the other side if you win and obtain a costs order), we will provide you with advice and seek your specific instructions before incurring such expenses. 5.4 Disbursements are incurred by us as your agent. In the event that the disbursement is subject to GST you will be required to pay the GST. 6. Goods and Services Tax ( GST ) Our fee/s is/are subject to GST. Under these Terms the amounts or rates quoted for fee/s is/are inclusive of GST. It is a term of this engagement that you, as client, pay not only our fee/s but any GST in respect of the fee/s. To the extent that disbursements we incur for you or on your behalf are subject to GST, GST will also be payable by you in respect of those disbursements. It is a term of this engagement that you, as client, pay not only the disbursements, but that you pay or reimburse us for any GST paid or payable in respect of the disbursements. 7. Administrative Services (not applicable if Scale fees charged) 7.1 Charges for facsimile transmissions and photocopying and printing are based on the number of pages sent or copied. Our current charges for facsimiles, photocopying and printing are also set out in the annexure to this letter. 4

5 Charges for such administrative services are likely to exceed / may exceed / are likely to be less than those provided for under the applicable Court scale. These charges are subject to GST. 8. Legal Costs Your Right to Know You have the right to: negotiate a costs agreement with us; receive a bill of costs from us; request an itemised bill of costs after you receive a lump sum bill from us; request written reports about the progress of your matter and the costs incurred in your matter; apply for costs to be adjudicated within 6 months if you are unhappy with our costs; apply for the costs agreement to be set aside; make a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging); accept or reject any offer we make for an interstate costs law to apply to your matter; notify us that you require an interstate costs law to apply to your matter. For more information about your rights, please read the fact sheet titled Legal Costs Your Right to Know. You can ask us for a copy, or obtain it from the Law Society of South Australia (or download it from their website). 9. Cost Estimates 9.1 Your fees and expenses to be incurred with us in carrying out your instructions, subject to the factors set out below, are estimated to be « » (inclusive of GST). OR It is not possible at this time to provide an accurate estimate of the total costs. We advise that we believe legal costs will fall within the following range: $... to $... (inclusive of GST). 5

6 The major variables that will affect the calculation of these costs are [complete - see notes] 9.2 We emphasise that the estimate is just that, a preliminary estimate. It is not a quote or a fixed maximum charge. The actual costs will be based on the work actually done and the expenses actually incurred. 10. Updating of Advice You have the right under clause 17 of Schedule 3 of the Legal Practitioners Act to be notified of any substantial change to the matters to be disclosed to you under clause 10 of Schedule 3, including any substantial change to the estimated costs of work. 11. Litigation Matters 11.1 The estimate in 8 above only refers to the costs we charge you. In addition, the Court may order you to pay other moneys, including some or all of the costs of other parties Your costs with us are payable by you according to our payment terms whether or not you may, if successful in your action, have rights to recover some of your costs from another party or parties The scale of fees which applies in the Court in which your action will run will usually determine what can be recovered from the other party if you are successful It is a term of this engagement that you, as client, are aware and acknowledge that you have been advised by us, that even if you are successful in obtaining an order for costs payable by other parties in the litigation, such an order will not necessarily cover the whole of your legal costs. It is likely to be for an amount substantially less than the costs payable under these terms (in our experience it is likely to be no more than %... to %... of your costs due to us, namely $... to $... You will have to meet the difference in these costs from your own pocket. It is only in the most exceptional circumstances that a court would order the losing party to pay all of the costs which we have charged you If you are unsuccessful you may be liable to pay the costs of other parties to the litigation in addition to our costs. As we are not aware of the extent of the legal work which may be performed for the other side, it is difficult to be precise as to what the amount of such costs might be. We would estimate 6

7 these may be between...% to...% of the amount of your own legal costs, namely $... to $ If we negotiate a settlement of a litigation matter on your behalf we will disclose prior to the settlement a reasonable estimate of our costs and an estimate of the contribution to those costs likely to be received from another party so that the likely minimum net amount that you will receive may be calculated. 12. Legal Agent Fees [If legal agent is to be engaged] We intend to retain [insert agent's name], a barrister/country agent/interstate agent/costs consultant, to act on your behalf to [describe]. The basis on which he/she will charge is [specify]. [Insert agent's name] will bill at intervals of [specify]. [Insert agent's name] costs are estimated at $... [OR] are estimated in a range of $... to $... The major variables that will affect the calculation of those costs are [describe]. [If it is a litigious matter, and legal agent s fees are likely to be higher than is recoverable on a party/party basis, this should be specifically advised, and it should be recorded that the client consents to this]. 13. Billing 13.1 I/We are entitled to bill you on an interim basis, provided that no bill is to be delivered less than twenty-one days after the delivery of a previous bill Accounts are to be paid within fourteen (14) days after delivery. Interest at the rate of.% which is the Cash Rate Target as of the date the bill is issued plus 2%. Interest begins to run on our accounts once they have remained unpaid for thirty (30) days. If an account does remain unpaid after fourteen (14) days after delivery we may terminate the engagement The following avenues are available to you if you are not happy with a bill from us: requesting an itemised bill; discussing your concerns with us; having our costs adjudicated; applying to set aside our cost agreement; 7

8 making a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging). For more information about your rights, please read the fact sheet titled Your Right to Challenge Legal Costs. You can ask us for a copy, or obtain it from the Law Society of South Australia (or download it from their website). 14. No Apportionment of Liability Where we act for two or more people or entities in a matter, each of you will be individually responsible for payment of our entire account whatever arrangements may be made between you. You agree that you are personally liable for our costs and disbursements even if the matter involves our acting for other persons and/or organisations. If you provide us with instructions for or on behalf of a third party or jointly with another party, you will be personally liable to pay for our services in accordance with these terms of engagement, irrespective of the liability of any third or other party to pay our fees. 15. Trust Money IMPORTANT NOTE: You should not rely on this clause as being a valid authority to withdraw trust money for fees or disbursements. The requirements set out in Schedule 3 of the Act and regulation 45 of the 2014 Regulations must be complied with in order to withdraw trust money for payment of costs I/We may ask you to pay money into our trust account from time to time to cover reasonably anticipated expenses, including counsel fees, and anticipated fees. These moneys are retained in our trust account and will be applied to our invoices (including GST) when they fall due for payment, or will be used in payment of particular expenses of this firm which are incurred on your behalf Should the matter proceed to trial, we will ask you to provide to us, at least 21 days prior to the trial date, the moneys reasonably estimated by us to cover the full cost of the trial, including counsel, court and witness fees. We will hold those moneys in our trust account against the anticipated costs and disbursements If you do not comply with any such request, we may cease acting for you in accordance with the following clause. 16. Termination 16.1 You have the right to terminate our services at any time. 8

9 16.2 Upon good cause such as failure to comply with the terms of this agreement or if in our view the necessary relationship of confidence no longer exists between us we have a right upon reasonable notice to terminate our engagement and cease acting for you, and in litigation matters apply to be removed from the Court file as your legal practitioners. [To be added when acting for a client in a serious criminal offence However, we will not cease to act for you due to failure to make satisfactory arrangements for the payment of costs unless we have served written notice on you of our intention to do so providing at least 7 days to make such arrangements prior to the commencement of the trial or the commencement of the sitting of the Court in which the trial is listed ] All fees and expenses incurred prior to termination by either you or us are then immediately billable to you Subject to any court order to the contrary or consequent agreement to the contrary, you agree that we are entitled to retain all moneys, papers and records relating to this matter until our bills are paid. 17. Conflicts of Interest I/We will not intentionally become involved in a situation where there is a conflict of interest of a legal nature between you, us and/or another client but if through inadvertence or unforeseen circumstances this should occur we may be obliged to terminate the engagement in this matter. 18. Storage of Records I/We will store your files for seven (7) years following completion of the matter. We do not charge for this storage, but if you require us to retrieve any of your files stored by us after completion of the matter, you agree that we will charge you a reasonable fee for the services required. You authorise us to destroy any of your files retained by us after seven (7) years following the completion of the matter. We encourage you to collect your file from us for your own records within seven (7) years after completion of the work. 9

10 19. Your Agreement to Work with Us It is a term of this agreement that you will reply to correspondence, return phone calls, respond reasonably to requests for instructions, and pay accounts or pay money into trust when reasonably required. If you do not work with us in these ways then we may terminate this agreement. In such circumstances, you agree that you will file a notice of acting in person in any current court proceedings in which we have been acting for you. 20. Authorisation It is a term of the engagement that should we receive any money from you or on your behalf other than for a specified purpose, we are at liberty to apply that money in payment of our outstanding accounts if nothing has been heard from you disputing the accounts within14 days after delivery. 21. Copyright I/We own the copyright in all documents we author in supplying our services and you have the right to use those documents only for the purposes for which they are supplied 22. Applicable law These terms are governed by South Australian law. All parties consent to the nonexclusive jurisdiction of the courts of South Australia with regard to any dispute arising under or out of them. 23. Your Agreement to These Terms 23.1 Please do not hesitate to contact the writer if there is anything in this letter which you do not understand or with which you disagree. You are also entitled to seek independent legal advice on the terms of this letter This is an offer to enter a costs agreement and we ask you to sign the counter-part copy of this letter by way of confirmation and return it to us. You may also acknowledge your agreement by facsimile or . The offer may also be accepted by conduct if you pay bills expressly calculated under the terms of this agreement. Please do not hesitate to call the writer if there are any aspects of the above you wish to discuss. We look forward to working with you towards a successful completion of this matter. 10

11 Yours faithfully I have read and confirm the above terms of engagement and acknowledge receipt of «the attached Statement of Fees setting out the fees» «Supreme Court Scale». Dated this day of client signature 11