1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in these Terms of Engagement. Claim: a claim made against a Firm, or submitted to the FSCS or FOS, for losses suffered by the Client resulting from the negligent mis-selling of an investment to the Client by a Firm.
Claim Assessment: the assessment of a potential Claim carried out by the Company, based on the contents of the Redress Application and any documents or other information supplied by the Client, in order to determine the likely prospects of a Claim being successful.
Client: the person or persons who have engaged the Company to provide the Services. The words’ you’ and ‘your‘ are to be construed accordingly.
Commencement Date: has the meaning given in clause 2.
Company/We/Our/Us: Addlington-West Group whose registered office is at Business Resource Network, Office 3, 53 Whateleys Drive, Kenilworth, Warwickshire, CV8 1LW. FCA Registration Number FRN838665. VAT Number 327482784
Contract: the contract between the Company and the Client for the supply of the Services on an exclusive basis in accordance with these Terms of Engagement.
Cooling Off Period: means the period in which the Client can cancel the Contract as defined in clause 9.1.
Disbursement: Variety of reasonable costs, dependant on individual circumstances.
Early Termination Fee: the fee payable by the Client, pursuant to clause 5.8, in the event that the Contract is terminated before a Reasonable Offer is offered or paid to the Client.
Firm: a financial services firm, financial adviser, broker, bank, building society, insurer or other entity authorised by the Financial Conduct Authority responsible for the sale of the investment to which the Claim relates.
FOS: The Financial Ombudsman Service, the United Kingdom’s official independent compensation expert in settling complaints between consumers and businesses providing financial services.
FSCS: Financial Services Compensation Scheme, the United Kingdom‘s compensation fund of last resort for customers of financial services firms authorised by the Financial Conduct Authority.
Other Costs: any costs incurred by You in order to obtain copies of documentation required by Us in order to progress your Claim as defined in clause 4.1(b). For example, if a Subject Access Request is required then maybe a fee of approximately £10.00 will be payable to the company you are requesting the information from. Your Bank or Building Society may require a small fee to provide copies of bank or credit card statements, or copies of a cheque to prove purchase.
Reasonable Offer: An offer which is made in accordance with the FOS, FCA, FSCS or any other appropriate body.‘
Redress Application: the collation of all information relating to a potential Claim to be provided by the Client in order to enable the Company to carry out the Claim Assessment.
Services: Means the provision of advice, investigation and or/ of a potential Claim for any loses sustained by the Client in respect of Mis-selling of the investment by the Firm.
Success Fee: the fee payable in respect of a Reasonable Offer, as described in clause 5.1.
Terms of Engagement: these conditions as amended from time to time in accordance with clause 13.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of the Contract.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.4 Words in the singular shall include the plural and vice versa.
1.5 Where the words include(s), including or in particular are used in these Terms of Engagement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.6 Any obligation in these Terms of Engagement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.7 References to clauses and schedules are to the clauses and schedules of these Terms of Engagement.
2. COMMENCEMENT AND DURATION
2.1 The Contract shall come into existence on the date upon which the Client returns a signed copy of these Terms of Engagement to the Company (“Commencement Date”) and shall continue until terminated in accordance with the provisions of clause 10.
3. COMPANY’S OBLIGATIONS
3.1 Subject to clause 3.2, the Company shall:
(a) provide the Services with reasonable skill and care;
(b) use its reasonable endeavours to complete the Claim Assessment(s) in a timely fashion;
(c) pursue a Claim only where, following completion of the Claim Assessment, the Company, in its fair and reasonable discretion, determines that: (i) there is a realistic prospect of the Claim being successful; and (ii) the Claim is financially viable for the Company to pursue.
(d) notify the Client promptly in the event that any additional information or documentation is required from the Client in connection with a Claim;
(e) in a timely fashion keep You informed as to the progress of the Claim and respond to any reasonable enquiries from You in respect of the Claim;
(f) deal with any complaints made by You in a timely manner in accordance with the provisions of Our Complaints Handling Procedure;
(g) upon receipt of a Reasonable Offer and cleared funds by Us, We will forward payment to You for Your percentage of the Award (if applicable)
3.2 Any dates agreed in respect of the performance of the company‘s obligations under the Contract shall be estimates only.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
(a) co-operate with the Company in all matters relating to the Services;
(b) promptly complete the Redress Application and provide copies of all documents and information relating to each Claim (for the avoidance of doubt, it shall be the Client‘s responsibility to ensure that they retain copies of any such documents or information);
(c) provide, in a manner, such information and documentation as the Company may reasonably require in connection with each Claim, and ensure that it is accurate in all respects. Please note that your bank/credit card provider may charge you a fee for copies of these documents;
(d) Will in connection with any Claim promptly give notice to the Firm in writing of any acceptance of any offer of redress made by the firm, FOS or FSCS or acceptance of any offer or receipt of any redress from the Firm or FSCS during the term of this agreement. Such notification shall include the amount of redress and the date of payment (or if payment is yet to be made) then the client shall procure such details are certified by the Firm, FOS or FSCS ;
(e) immediately notify the Company if the Client is: (i) deemed either unable to pay its debts or as having no reasonable prospect of so doing (within the meaning of section 268 of the Insolvency Act 1986); or (ii) the subject of a bankruptcy petition or order.
(f} when a Reasonable Offer has been paid direct to the Client, the Success Fee shall be payable to Us within 14 days of the payment and cleared funds of a Reasonable Offer to You.
4.2 Will pay the fee due to Addlington-West Group in accordance with Clause 5,6 and 11.
4.3 The Client shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client‘s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Client in writing.
5. FEES AND PAYMENT
5.1 For each separate claim, you shall pay us a success fee where your claim is successful. The amount of success fee will be dependent on the level of award/compensation that is offered and is based on the GROSS amount. Our fees range from 15% to 25% excluding VAT. VAT will also be added and charged at the prevailing rate which is currently 20%.
5.2 Below is an illustration of what the success fee would be if you were made an offer of compensation to one of the amounts detailed below:
The fee illustrations are not to be taken as an estimate of the amount likely to be recovered for you. (VAT rate calculated as the correct rate on 27th June 2019, subject to change).
5.3 The Success Fee shall become due upon acceptance of a Reasonable Offer on behalf of the Client.
5.4 (a) The Success Fee is detailed in clause 5.1 and in circumstances where settlement is received by You directly, it will be required to be paid by You.
5.5 If following a Claim Assessment, the Company, in its fair and reasonable discretion, determines that there is no realistic prospect of the Claim being successful or that the Claim is not financially viable for the Company to pursue no Success Fee shall be payable. For the avoidance of doubt, no refund will be due where a Claim is pursued by the Company but does not result in a Reasonable Offer being made to the Client.
5.6 If the contract is terminated after the end of the Cooling off Period but before an Award is offered to You, you may be liable to pay a reasonable fee to Us in respect of work undertaken by Us prior to such termination (“Early Termination Fee”). This is a reasonable fee in relation to work completed to date. In order to calculate the basis of this charge, the payable amount will be calculated by the time engaged undertaking work at the firm's hourly rate, applicable at this date, (currently charge at £100 per hour plus VAT. Although, such fees shall not exceed the initially agreed success fee, prior to work being undertaken.
5.7 If the Contract is terminated during the Cooling Off Period, no Early Termination Fee will be payable
6.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by the Company, its agents, consultants or subcontractors and any other confidential information concerning the Company’s business or its products which the Client may obtain.
6.2 The Company and the Client may each disclose such information as may be required by law, court order or any governmental or regulatory authority.
6.3 The Client shall not use any such information for any purpose other than to perform its obligations under the Contract.
7. LIMITATION OF LIABILITY - YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 Nothing in these Terms of Engagement shall limit or exclude the Company’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or (b) fraud or fraudulent misrepresentation.
7.2 Subject to clause 7.1 if the Company fails to comply with these Terms of Engagement, the Company shall be liable for loss or damage suffered by the Client that is a reasonably foreseeable result of the Company‘s breach of the Terms of Engagement or of its negligence, but the Company is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it were an obvious consequence of the Company breach or if it were contemplated by the client and the Company on the Commencement Date.
7.3 Except as set out in these Terms of Engagement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. Where, following a Claim Assessment, the Company agrees to pursue a Claim, it makes no representation or warranty, and provides no guarantee, that such Claim will be successful.
7.4 This clause (Clause 7) shall survive termination of the Contract.
8. DATA PROTECTION
8.1 We use the information you provide primarily for the provision of the Services to you and for related purposes including:
8.2 Our use of that information is subject to your instructions, the Data Protection Act 2018 and our duty of confidentiality. Please note that our work for you may require us to give information to third parties such as expert witnesses and other professional advisers. Under data protection legislation you have a right of access to the personal data that we hold about you. We may from time to time send you information relating to our services that we think might be of interest to you based on our legitimate interests. If you do not wish to receive that information please notify our office, preferably in writing.
9. CLIENT’S RIGHT TO CANCEL
9.1 The Client has the right to cancel the Contract at any time during the period of 14 days starting on the day after the Commencement Date (the “Cooling Off Period"). For the avoidance of doubt, the Client has the right to not pursue the Claim at any time, however, the Company reserves the right to charge for any Disbursement and Early Termination Fee incurred.
9.2 Notice of cancellation may be made in writing, by e-mail, by telephone or in any other form to the person named in the accompanying letter. However, to establish proof of cancellation it is preferable to send this by registered post. You can use the NOTICE OF RIGHT OF CANCELLATION FORM provided separately, but you do not have to do so. For the avoidance of doubt, no fees will be due if you cancel within the Cooling Off period.
10.1 The Company may terminate the Contract if:
(a) following a Claim Assessment in respect of the only outstanding Claim, the Company, in its fair and reasonable discretion, determines that: (i) there is no realistic prospect of the Claim being successful; or (ii) the Claim is not financially viable for the Company to pursue.
(b) the Client commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach;
or (c) the Client is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or is the subject of a bankruptcy petition or order.
10.2 Without prejudice to clause 9, the Client may terminate the Contract:
(a) if the Company commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach;
or (b) at any time by giving written notice to the Company.
10.3 The Contract shall terminate automatically if:
(a) the Claim (being the only outstanding Claim) is rejected;
and (b) the Company, in its fair and reasonable discretion, determines that there is no realistic prospect of the Claim being successfully pursued any further.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract for any reason (other than cancellation during the Cooling Off Period in accordance with clause 9):
(a) the Client shall be liable to pay the Early Termination Fee (if any);
(b) the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination;
and (c) clauses which expressly or by implication have effect after termination shall continue in full force and effect, including the following clauses: clause 5.8 (Early Termination Fee), clause 6 (Confidentiality), clause 7 (Limitation of liability), clause 11, clause 20 (Notices) and clause 21 (Governing law and jurisdiction).
11.2 For the avoidance of doubt, if the Contract is terminated automatically in accordance with clause 10.3, the Client shall not be liable to pay a Success Fee or an Early Termination Fee.
11.3 If the client does not pay the invoice then the Firm may use a debt collection company to retrieve funds. Debt Collection Services Ltd, Unit S First Floor, Silkwood Court, Wakefield, WFS 9TP.
12. FORCE MAJEURE
12.1 For the purposes of the Contract, "Force Majeure Event" means an event beyond the reasonable control of the Company including, but not limited to, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
12.2 The Company shall not be liable to the Client as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
12.3 If the Force Majeure Event prevents the Company from providing any of the Services for more than 4 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Client.
No variation of the Contract shall be valid unless it is in writing and signed by or on behalf of the Company.
14.1 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
14.2 No single or partial exercise of any right or remedy provided under the Contract or by law shall preclude or restrict the further exercise of any such right or remedy.
15. CUMULATIVE REMEDIES
Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17. ENTIRE AGREEMENT
17.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of the Contract.
17.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that its only liability in respect of those representations and warranties that are set out in the Contract (whether made innocently or negligently) shall be for breach of contract.
17.3 Nothing in this clause shall limit or exclude any liability for fraud.
18. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
19.1 Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by e-mail to the other party’s business e-mail address last known to the sending party, or sent by fax to the other party‘s main fax number.
19.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post, by recorded delivery, by commercial courier, by e-mail or by fax, on the day upon which it was sent.
20. GOVERNING LAW AND JURISDICTION
20.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
We are a claims-handling business only and We do not provide any financial or legal advice of any kind. Any such information discussed with you is for general guidance purposes only and does not constitute financial or professional advice and We accept no liability for loss or damage of any kind arising from the use of, or inability to use any such information. You should seek your own independent financial advice.
Accepting Full and Final Settlement
By accepting a full and final settlement in respect of this claim you will prejudice any future claims you may have been able to make against the Creditor. However this may not prejudice any future claim(s) you may have against the Seller or any other third parties, which may include but are not limited to; consequential loss and or damages and class actions, for which you should seek independent legal advice. Acceptance of the full and final settlement does not relinquish the contract between you and the Seller. You are still bound by the terms of that contract. For the avoidance of doubt you will still own the timeshare and therefore remain liable for any liabilities and obligations which arise as a result of your contract with the Seller.
Limitations Act 1980
Any claim in respect of misrepresentation or breach of contract is subject to the 6 year statutory limitation period. For the avoidance of doubt if the statutory limitation period were to expire during our process of seeking redress for your claim, the Creditor may then decide the claim was outside the statutory limitation period and statute-bar your claim. This will ultimately result in your claim being closed permanently. This in all likelihood would end any option moving forward for financial redress. It is the domain of lawyers to issue proceedings which stops the statutory limitation period from expiring. If you are in doubt regarding this matter, please seek independent legal advice to instigate such proceedings.
PLEASE NOTE: We believe that we provide a valuable service to our clients but would like to remind you: that you do not need to engage a claims management company in order to make a Claim, you can submit your own claim for free - there are a number of bodies that you can claim through depending on the circumstances of the claim. We should not be held liable for any claim wholly or partly excluded under the Financial Services Compensation Scheme (FSCS) rules. We will submit all claims in good faith and with reasonable skill and care. We may transfer your data outside the European Economic Area.
1. Complaints may be made verbally or in writing, by e-mail, by telephone or in any other form in respect of a claims management service that we have provided.
2. We reserve the right to decline the consideration of a complaint that is made more than six years after the event when the complaint occurred, or more than three years after you became aware of the cause of the complaint. There may be instances where we will waive this requirement at our discretion. We will confirm to you in writing if a complaint has been made outside the time limit that we are prepared to consider.
3. We will send you electronic or written acknowledgment of your complaint within five business days of receipt. We will identify the person who will handle the complaint. Wherever practically possible, that person will not have been directly involved in the subject of the complaint, and will have the relevant authority to investigate and bring the complaint to a satisfactory outcome.
4. Within four working weeks of receiving a complaint, we will send you either:
4.1. a response which addresses the complaint to a satisfactory outcome, or
4.2. a holding response, which explains why we cannot yet resolve the complaint and also indicates when we will contact you.
5. Within eight working weeks of receiving a complaint we will send you either:
5.1. a response which addresses the complaint to a satisfactory outcome, or
5.2. a response which: explains why we are still not able to make a final response, giving reasons for the delay and indicating the timescale of when we will be able to provide a final response.
6. Where we decide that compensation is appropriate, we will settle it for any acts or omissions for which we are responsible.
If you are unhappy with our final response, or a response is not received within 8 weeks you have the right to escalate your complaint to the Financial Ombudsman Service (FOS) or the Claims Management Ombudsman (CMO)
FOS: financial-ombudsman.org.uk or CMO: cmc.financial-ombudsman.org.uk
We will comply with any offer of compensation which you accept. Compensation may not always be financial.
Hours of Operation: We are normally open between 09:00 a.m and 05.00 p.m from Monday to Friday.
Service Levels and Frequency of Communication: We will update you by telephone or in writing with progress on your Claim, when appropriate and no later than 10 days after receiving a material update. Whenever there is a material change in circumstances associated with your Claim, we will update you with the options available and Suggest an appropriate course of action.
Outsourcing: Sometimes we ask other companies or people to conduct work for us which may include typing/photocopying/ other work on our files to ensure this is done promptly/in the most cost-effective manner. We will always seek a confidentiality agreement with these outsourced providers. If you do not want your file to be outsourced, please tell us as soon as possible.
External Auditing: External firms or organisations may conduct an audit or quality checks on our practice. These external firms or organisations are required to maintain confidentiality in relation to your files.
Equality and Diversity: We are committed to promoting equality and diversity in all our dealings with clients, third parties and employees.
Future Instructions: Unless otherwise agreed, these Terms of Engagement will apply to all future instructions you give us on this or any other matter.