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Standard Terms of Engagement

Introduction

 

These terms set out the basis on which K.Y. Woo & Co. (“KYW”) provides legal services to its clients. These are standard terms and therefore some of them may not be immediately relevant to the work that KYW has agreed to conduct for a particular client. However, they may become relevant in the future.  This document and the covering letter which accompanies it should be retained for future reference. These terms may be varied by KYW by notice to the client.

 

Client and task

 

KYW will specify in correspondence the identity of the party that is its client and task or tasks which KYW is to undertake on its client’s behalf.  When KYW’s client is a company, it will be necessary to obtain a board resolution authorising KYW to act on its behalf.  KYW will provide a draft of the necessary resolution.

 

Anti-money laundering and terrorist financing

 

In order to comply with anti-money laundering and terrorist financing legislation, KYW will need to be satisfied that it has sufficient proof of the identity of its clients.  KYW will also need to obtain information on the nature, purpose, and source of funding for the transaction to be undertaken by KYW.  More detailed information may be required for more complex or larger transactions.

 

A list of information and documents required by KYW for the purpose of compliance with the legislation is sent to the client separately or along with the covering letter which accompanies this document.

 

If KYW does not obtain the required information and documents within a reasonable time or KYW is not satisfied that the information and documents provided are sufficient, KYW cannot act for the client and will stop advising the client unless and until all required information and documents are provided to the satisfaction of KYW and in satisfaction of the legal requirements.

 

Instructing KYW

 

In order to avoid any misunderstanding, KYW will specify in correspondence the name of the individual or individuals KYW’s day-to-day instructions will come from.  These instructions may be given to KYW orally or in some written form including by email.

 

Responsibility for work and details of KYW

 

All matters handled by KYW are overseen by a partner or consultant.  However, in order to provide KYW’s service as cost effectively and efficiently as possible, some of the day-to-day conduct may be dealt with by solicitors with KYW or other staff in consultation with the relevant partner or consultant.  KYW will specify in correspondence the name of the partner and any solicitors or staff designated to assist a client in any particular matter.

 

Brief descriptions of members of KYW and a general review of the type of the work KYW undertakes can be provided by the firm.  KYW will be pleased to expand on the information.

 

KYW’s commitment to clients

 

KYW will keep each client’s business confidential and not discuss it with any external person or organisation without permission. KYW’s client should, however, be aware that under certain circumstances disclosure of confidential information can be mandatory and required by law or by an order of a court.  Disclosure can be required without the knowledge of the client.  KYW may make public the fact that it is acting on behalf of a client unless requested not to do so in writing.

 

KYW will give clear, coherent legal advice.

 

KYW will keep its client informed of progress by telephone or in writing as appropriate and will provide its client with copies of any relevant documentation.

 

KYW will deal with all matters as promptly as possible.

 

As part of KYW’s commitment to providing a quality, cost effective service, KYW’s insurers or potential insurers may periodically review KYW’s files on a sample basis to confirm that KYW 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.

 

Helping KYW to help clients

 

Taking the following steps will undoubtedly help KYW ensure that a client’s matters are handled speedily and cost-effectively:-

 

  • Providing clear and complete instructions to KYW together with all relevant papers;

 

  • Explaining any particular time limits, targets or expectations;

 

  • Notifying KYW if its client is unsure of any particular aspect or if further detail or information is required;

 

  • Requesting a progress report from KYW from time to time.

 

Fees

 

KYW is flexible and is willing to consider different ways of charging fees.  These include fixed fees, fees subject to a fee limit, percentage fees based on the value of a transaction, retainer fees or fees calculated by reference to an hourly rate.  KYW also has special fee arrangements which may be attractive to clients in debt collection cases.  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, KYW’s fees will still be payable.  Unless KYW has specified another fee structure, KYW will charge fees primarily by reference to the amount of time spent by members of KYW who will record time in one-hour units.

 

KYW’s hourly charge-out rates vary according to the seniority or experience of the member of KYW 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 also be taken into account in calculating KYW’s fees.

 

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, researching, making and receiving telephone calls, correspondence including sending and receiving emails and attending at Court or Tribunal. 

 

Fee estimates given by KYW are guides to assist clients in budgeting but are not definitive fee quotations unless this is specifically agreed in writing.

 

Disbursements and other charges

 

In addition to KYW’s own fees, any disbursements incurred (such as KYW’s photocopying charges) will be included in KYW’s bills.  It is likely that KYW will incur expense 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, printing, travel, computerized legal research and searches and will be included in KYW’s bills.  Disbursements will normally be billed at the same time as KYW invoices for its fees but may be billed at other times.

 

If KYW incurs additional expenses for staff (other than solicitors working overtime) during evenings, nights or weekends in order to provide the service that a client requires, KYW may include these additional expenses as separate item within its bills.

 

Air travel and work overseas

 

If members of KYW are require to travel overseas at the request of clients, unless with prior agreement they will travel business class.  On all occasions where air travel is required, members of the firm will endeavor to travel out of business hours, in which case there will be no time charged for the period of travel.  Travel during business hours will be charged at half of the normal hourly charge-out rate of the fee earner concerned. Clients will pay reasonable hotel and living expense incurred by the firm.

 

Billing

 

Regular billing will usually be sent to clients (unless otherwise agreed) enabling clients to keep track of costs.  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.  KYW’s client can request an indication of costs at any time and KYW can agree to a cost limit and review date if preferred.  All bills are sent on an errors and omissions excepted basis.

 

Payment information

 

Clients may make payment by cheque payable to “K.Y. Woo & Co.” or by telegraphic transfer to the following bank account:-

 

SWIFT code:           HSBC HKHHHKH

Account:                  K.Y. Woo & Co.

Account number:     004-036-401800-001     

Bank name:              HSBC

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

 

KYW’s clients should quote KYW’s reference when remitting funds and should ensure that the full amount of the payment is received into KYW’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 KYW’s bank into Hong Kong dollars at the prevailing market rate.  If a client wishes KYW to receive and hold funds in a foreign currency then KYW should be informed before the funds are remitted so that KYW can make appropriate arrangements.

 

KYW is unable to receive payments through credit or debit cards such as Visa, Mastercard, American Express and EPS.

 

Client account money

 

All money that KYW receives from clients or from third parties for the purposes of the legal services that KYW provides to its clients will be kept segregated from KYW’s own money in a designated client account.  KYW will keep clients advised of the utilization of money received from time to time.

 

Payment of KYW’s bills

 

KYW’s bills are payable on presentation unless KYW 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 KYW for a payment on account of costs and/or disbursements then KYW reserves the right to decline to act further.  In such case, the full amount for work done and disbursements will be charged to the client.

 

KYW is entitled to apply sums received from third parties (including but without limitation settlement payments, taxed costs, photocopying charges and refunds of payments made from KYW’s client account) in settlement of KYW’s bills to its clients.

 

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

 

If instructions for a particular task are given to KYW by more than one person or company who are collectively regarded as KYW’s client, KYW may recover its fees and disbursements from any one or more of them.  This includes situations where a person or company instructs KYW on behalf of another.

 

If arrangements are made for a third party to pay any of KYW’s fees or disbursements, or a Court orders a third party to pay any part of KYW’s fees or disbursements.  KYW’s client remains liable to pay them to the extent that the third party does not pay them when due.

 

Payment on account

 

It is KYW’s usual practice to ask clients to make payments on account of anticipated costs and disbursements.  KYW will notify its clients of this requirement from time to time.  KYW’s total fees and expenses may be greater than any advance payments.  It may be that at a later date a sum or further sum is required by KYW if it appears appropriate because of, for example, a commitment to counsel or to replenish money already paid on account when utilized.  At KYW’s discretion, some or all of the money may be applied towards any outstanding bill of KYW for the client on any KYW file in the name of that client.

 

Interest on unpaid bills

 

In many cases work is conducted by KYW well before a bill is rendered to a client.  If a bill is not paid within 30 days of presentation this places an unreasonable cash flow burden upon KYW.  KYW therefore reserves the right to charge interest until settlement at the rate of 1% of the total unpaid balance for each month or part of a month that payment is in default.

 

Litigation

 

KYW’s client will be responsible to KYW for the legal fees and expenses incurred in litigation matters.  If a client is successful it may be possible to recover some of the costs from the opponent.  There are cases where the client’s opponent is not ordered to pay or may not be able to pay all or some of KYW’s client’s fees and expenses.  Conversely, if a client is unsuccessful in the litigation, it is likely that KYW’s client will be ordered to pay part 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 the opponent’s costs and expenses and they cannot be agreed then the sum is established by a Court official known as a taxing officer.  This process is called taxation and can involve 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 75% of the costs actually incurred with solicitors and most of the sum incurred for disbursements such as photocopying and counsel’s fees.  Payment by the client of KYW’s bills in full is required whether or not KYW’s client obtains an order for costs against the opponent at the end of a litigation and regardless of the outcome of the litigation and of any party and party taxation.  It is likely to be necessary for KYW’s client to pay KYW’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 for the opponent’s fees and expenses at various stages in the course of the action. If a party withdraws from an action, the opponent may be entitled to apply to the Court for an order for payment of the opponent’s fees and expenses.

 

With effect from 1 January 2018:

 

The High Court will normally use the following rates when taxing or assessing costs:-

Number of years in practice                    Hourly rate allowed by the High Court - HK$

Over 15 years                                          5,800

15 years                                              5,200

7 – 8 years                                               4,500

5 – 6 years                                               3,900

2 – 4 years                                               3,200

Newly admitted solicitor                         2,600

Trainee solicitor                                      1,700          

Litigation clerk                                        1,300

 

The District Court will normally use the following rates when taxing or assessing costs:-

Number of years in practice                    Hourly rate allowed by the District Court - HK$

Over 15 years                                          3,860

9 15 years                                              3,460

7 – 8 years                                               3,000

5 – 6 years                                               2,600

2 – 4 years                                               2,130

Newly admitted solicitor                         1,730

Trainee solicitor                                      1,130

Litigation clerk                                        860

 

 

In rare cases, costs can be ordered to be paid on a higher level if the Court considers the conduct of a party to a litigation to be worthy of disapproval.

 

Email

 

KYW may communicate with its clients using normal, non-encrypted email.  This form of email is not secure and there is a risk to a client if KYW communicates confidential information in this way.  KYW does not accept liability for any communication which is intercepted or otherwise falls into the hands of third parties or for non-receipt, late receipt or corruption.

 

Each client consents to communication between it and KYW and related parties being by email unless KYW is instructed otherwise in writing by the client.

 

Conflicts of interest

 

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

 

Limitation of liability

 

KYW’s liability shall be limited to the minimum insurance cover required by the Law Society of Hong Kong, currently at HKD10 million.

KYW will rely upon the information and instructions provided by its client or by others on its client's behalf. KYW's advice will reflect the nature and extent of information and instructions received and the timescale in which KYW is operating.  If KYW 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.  KYW's advice is provided in relation to a specific set of facts.  As a result KYW does not accept any responsibility for the accuracy of that advice in other situations.

 

KYW will not be responsible for any failure to advise or comment on any matter which falls outside the scope of its instructions.

 

KYW 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 KYW'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.

 

If a client has agreed with any other adviser any limitation on that adviser's liability, KYW will not be liable for anything that its client could have claimed from that adviser but could not do so because of that limitation.

 

KYW's liability to its client for breach of contract or breach of duty or negligence or otherwise arising out of or in connection with KYW's engagement or the services KYW provides shall be limited to the extent permitted by law to that proportion of the loss or damage (including interest and costs) suffered by KYW's client which is ascribed to KYW by  a Court allocating proportionate responsibility to KYW having regard to the contribution to the loss and damage in question of any other person responsible and/or liable to KYW's client for such loss and damage.

 

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.  KYW considers that in certain non-contentious business it is appropriate to limit its liability to clients and will notify clients in writing in such cases.

 

Nothing in these terms 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

 

The services provided by KYW to a client are solely for that client's benefit and KYW accepts no responsibility to anyone else.

 

KYW's advice may not, without KYW's prior written consent, be disclosed to any other party. In particular, KYW's client agrees not to refer to KYW or KYW's advice in any public document or communication without KYW's prior written consent.

 

If KYW is requested to introduce other professional or expert advisers, or third parties (such as accountants, foreign lawyers and surveyors) KYW will endeavour to do so.  Unless agreed by KYW otherwise, KYW's client will be responsible for payment of their fees and charges directly.  They are responsible for any advice given by them directly to KYW's client and KYW shall not be liable for any act or omission by them.

 

Audit enquiries

 

Should KYW receive requests either directly from a client or from a client’s accountants and/or auditors for confirmation as to whether KYW is instructed, KYWs response shall always be addressed directly to its client for onward transmission.

 

Such requests may require KYW to confirm whether any matters are of a litigious nature, whether any deeds or documents are retained by KYW and also whether there are any outstanding bills owed by KYW's client to KYW for any work in progress.

 

KYW reserves the right to charge on a time basis for work undertaken in responding to such requests.

 

Tax advice

 

Unless specifically agreed with KYW's client in writing, KYW’s advice will not extend to advice on the tax implications of the work on which KYW is advising.

 

Copyright and intellectual property

 

KYW retains all copyright and intellectual property rights in all material developed, designed or created by KYW during the course of complying with instructions.

 

Document return and storage

 

At the end of a retainer and upon payment of all outstanding bills KYW will, if requested, return to its client all of the original documents which the client has sent to KYW or which KYW may be holding together with any other important documents which KYW considers its client may wish to hold.  When KYW closes its file, KYW will keep the documents and correspondence that KYW retains either at its offices or to commercial storage company from where they can be retrieved for the next 3 to 10 years, depending on the nature of the matter.  Thereafter, and unless for some reason it is obvious to KYW that the documents need to be retained for a longer period (for example, if KYW is holding title deeds or a will for safe­ keeping) they will be destroyed with no further notice to the client.

 

KYW reserves 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

 

A client may terminate KYW's appointment as solicitors at any time by giving KYW reasonable written notice.  KYW may terminate its appointment as a client's solicitors by 14 days prior written notice to the client if:-

 

  • The client fails to pay KYW's bills;

 

  • The client fails to provide KYW with adequate instructions;

 

  • The client fails to comply with KYW's request for a payment on account:

 

  • KYW considers its client's interest would be better advanced by other representation; or

 

  • KYW finds itself in a position of conflict of interest.

 

If KYW's appointment is terminated by the client or by KYW, the client must pay KYW's fees and expenses for work done and expenses incurred up to the date on which the termination takes effect.

 

If KYW is on record at Court as acting for a client in any proceedings the consent of the Court may be required before KYW can be removed from the Court record.  To that extent, a client's right to terminate KYW's engagement may be restricted.

 

If KYW does not accept additional instructions from a client the solicitor/client relationship with that client is will be considered terminated upon completion of the specific service that KYW has been engaged to provide.  If KYW is later retained and agrees to provide further or additional services the solicitor/client relationship will be revived subject to these terms and any variation of them by KYW.  The fact that KYW may inform a party of developments in the law or other matters of interest by newsletter or otherwise should not be taken as a revival of any solicitor/client relationship.  Moreover, KYW does not accept any obligation to inform any party of such developments in the law or other matters unless KYW has been specifically engaged in writing to do so.

 

Future instructions

 

Unless otherwise specified by KYW, these terms shall apply to all future matters where KYW acts on a client's behalf.

 

Professional referrals

 

From time to time KYW receives instructions from professional firms to assist their clients. Until such a time as KYW has been introduced to and has accepted a solicitor/client  relationship with that professional firm's client, the professional firm shall be TDW's client and KYW will address bills to that professional firm.

 

Governing law

 

All of KYW'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 KYW comments on documents governed by the laws of other jurisdictions, KYW is not advising on the laws of those jurisdictions and the client should instruct lawyers in those jurisdictions for appropriate advice.

 

These terms and the services KYW provides to its 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 jurisdiction of the Hong Kong Court.  It is agreed that KYW may bring proceedings against a client in other jurisdictions at KYW's option.

 

Satisfaction

 

KYW prides itself on the range and quality of work which KYW undertakes.  However if anything arises to cause a client concern then the client is requested to raise the matter in the first instance with the partner with overall responsibility for the work or, if preferred, with one of the other partners at KYW.

 

KYW very much looks forward to a long, fruitful and successful relationship with all its clients.