Our Engagement Terms
The following standard terms of business apply to all engagements accepted by Whiting & Partners. All work carried out is subject to these terms except where changes are expressly agreed in writing.
We will observe the Bye-laws, regulations and ethical guidelines of The Institute of Chartered Accountants in England and Wales (ICAEW) and accept instructions to act for you on the basis that we will act in accordance with those guidelines. Copies of these requirements are available for inspection in our offices.
Where you give us confidential information we shall at all times keep it confidential, except as required by law or as provided for in regulatory, ethical or other professional pronouncements applicable to this engagement.
We reserve the right to act during this engagement for other clients whose interests may be adverse to yours. We will notify you immediately should we become aware of any conflict of interest to which we are subject in relation to you.
Although we are not authorised by the Financial Services Authority to conduct Investment Business, we are licensed under the Designated Professional Body (DPB) Regulations of the ICAEW to provide certain limited investment services where these are complementary to, or arise out of, the professional services we are providing to you.
In particular, we may:
advise you on investments generally, but not recommend a particular investment or type of investment;
refer you for a full range of investments to a Permitted Third Party (PTP) (an independent firm authorised by the FSA), assist you and the permitted third party during the course of any advice given by that party and comment on, or explain, the advice received (but not make alternative recommendations). The PTP will issue you with his own terms and conditions letter, will be remunerated separately for his services and will take full responsibility for compliance with the requirements of the Financial Services and Markets Act 2000.
Our associated financial services company, Whiting & Partners Wealth Management Limited, is one such PTP regulated separately by the Financial Services Authority.
assist you in making arrangements for transactions in a limited range of investments in certain circumstances;
advise and assist you in transactions concerning shares or other securities not quoted on a recognised exchange; and
manage investments or act as trustee (or donee of a power of attorney) where decisions to invest are taken on the advice of an authorised person
We may also, on the understanding that the shares or other securities of the company are not publicly traded:
advise the company, existing or prospective shareholders in relation to exercising rights, taking benefits or share options, valuations and methods of such valuations;
arrange any agreements in connection with the issue, sale or transfer of the company’s shares or other securities;
arrange for the issue of new shares; and
act as the addressee to receive confirmation of acceptance of offer documents etc.
The above paragraphs in italics apply to corporate clients only (and possibly directors) – not applicable in all other cases.
The firm may receive commission from any introduction to a PTP in connection with the above, in which case you will be fully informed of the expected size and nature of such commission at the time of the introduction. Such commission will be held in our clients’ account until we receive instructions from you as to how it should be treated. In the event of no such instructions being received, we may use such monies against any fees that have been outstanding for 30 days or more and concerning which you are not in dispute with us. We may also request that you allow us to retain such commissions to cover our costs in connection with the above, but permission will be sought separately from you in these circumstances.
Should you require us to assist in arranging any of your investment business, you must instruct
us in writing.
If, at your request, we or our Financial Services Company undertake Investment Business services or corporate finance activities which are not integral to the general professional services rendered to you, this work would be subject to a further engagement letter from us and/or terms of business issued separately by them.
If you are dissatisfied in any way about our services described in this section, you should follow the procedures set out in the ‘Help us to give you the right service’ section of this letter and, if in the unlikely event that we cannot meet our liabilities to you, you may be able to claim compensation under the Chartered Accountants Compensation Scheme.
To enable us to provide you with a proper service, there may be occasions when we will need to contact you without your express permission concerning investment business matters. For example, it may be in your interests to sell a particular investment and we would wish to inform you of this. We may therefore contact you in such circumstances, but would only do so in our normal office hours of 9am to 5.30pm. We shall of course comply with any restrictions you may wish to impose which you notify to us in writing.
Commissions or other benefits
In some circumstances, commissions or other benefits may become payable to us in respect of introductions or transactions we arrange for you, in which case you will be notified in writing of the amount and terms of payment. The fees that would otherwise be payable by you generally as described above may be abated by such amounts. You consent to such commission or other benefits being retained by us without our being liable to account to you for any such amounts. For example, if we introduce you to Auditel, providers of comparisons of utility and other services, then we would likely receive an initial commission payable in the first month.
We may, from time to time, hold money on your behalf. Such money will be held in trust in a client bank account, which is segregated from the firm’s funds. The account will be operated, and all funds dealt with, in accordance with the Clients’ Money Regulations of the Institute of Chartered Accountants in England and Wales.
In order to avoid an excessive amount of administration, interest will only be paid to you where the amount of interest that would be earned on the balances held on your behalf in any calendar year exceeds £25. Any such interest would be calculated using the prevailing rate applied by Barclays Bank Plc for small deposits subject to the minimum period of notice for withdrawals. Subject to any tax legislation, interest will be paid gross.
If the total sum of money held on your behalf exceeds £10,000 for a period of more than 30 days, or such sum is likely to be held for more than 30 days, then the money will be placed in a separate interest-bearing client bank account designated to you. All interest earned on such money will be paid to you. Subject to any tax legislation, interest will be paid gross.
Our fees are computed on the basis of time spent on your affairs and assignments by the Principals and our Staff/Consultants, and on the levels of skill and responsibility involved. Disbursements represent travel, accommodation and other expenses incurred in dealing with your affairs.
Unless otherwise agreed our fees will be charged separately for each of the main classes of work described above. You will be billed at appropriate intervals during the course of the year. Payment of fees will be due within thirty days of the date of the payment request.
For illustration purposes, current typical hourly charge-out rates are as follows:-
Managers £70 - £110
Seniors £40 - £70
Juniors £20 - £35
Typical charge-out rates applicable may be amended from time to time in the future; we will be pleased to supply details of current rates upon request.
We will be pleased upon request to provide an estimate of the likely costs involved before commencement of work or any assignment.
For normal ongoing continuous supply services the initial payment request issued will not be a tax invoice for VAT purposes but will include a notional amount for VAT. On receipt of your payment a tax invoice will be issued to enable you to recover input tax where applicable. However, please note that a VAT invoice will be issued in certain rare circumstances for exceptional “non-continuous” work only.
If it is necessary to carry out work outside the responsibilities outlined in this letter it will involve additional time spent on your affairs and will therefore involve higher fees. Accordingly we would like to point out that it is in your interests to ensure that your records etc., are completed promptly to the agreed stage.
Fees rendered for work done are payable in full (including disbursements) irrespective of whether any report is signed or accounts are made available, unless otherwise agreed in writing.
There are a variety of ways in which you may pay your fees; this can be done by Cheque or Cash, Electronic bank transfer, Credit Card or our Premium Credit facility. If you wish to pay monthly in advance by Standing Order or Direct Debit please advise us and we will agree with you an appropriate figure and take your necessary bank details. Similarly, if you would like to pay by Electronic bank transfer please contact our local office or Central Cashiers on 01284 752313, so that we can provide the necessary details/reference.
Our terms relating to payment of fees rendered, and not covered by pre-agreed advance standing orders where appropriate, are strictly 30 days net. Interest (and compensation for recovery costs) will be charged on all overdue debts at the rate for the time being applicable under the Late Payment of Commercial Debts (Interest) Act 1998.
Retention of and access to records
During the course of our work we will collect information from you and others acting on your behalf and will return any original documents to you following the preparation of your accounts and returns.
Whilst certain documents may legally belong to you, we intend to destroy correspondence and other papers that we store which are more than seven years old, other than documents which we consider to be of continuing significance. If you require retention of any document you must notify us of that fact in writing.
As part of our ongoing commitment to providing a quality service, our files are periodically subject to an independent quality review. Our reviewers are highly experienced and professional people and are, of course, bound by the same requirements of confidentiality as our principals and staff.
Help us to give you the right service
If at any time you would like to discuss with us how our service to you could be improved, or if you are dissatisfied with the service you are receiving, please let us know, by telephoning your Contact Partner or the Vice Chairman of Whiting & Partners, Mr J D Cater.
We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you. If you feel that we have given you a less than satisfactory service, we undertake to do everything reasonable to address your concerns. If you are still not satisfied, you may of course take up matters with the Institute of Chartered Accountants in England and Wales.
In order for us to provide you with a high quality service on an ongoing basis it is essential that you provide us with relevant records and information when requested, reply to correspondence in a timely manner and otherwise follow the terms of the agreement between us set out in this Standard Terms of Business and associated Engagement letters. We therefore reserve the right to cancel the engagement between us with immediate effect in the event of:
your insolvency, bankruptcy or other arrangement being reached with creditors;
failure to pay our fees by the due dates;
either party being in breach of their obligations where this is not corrected within 30 days of being asked to do so.
In addition this agreement may be terminated for any reason if 90 days notice is given.
This engagement letter is governed by, and construed in accordance with English law. The Courts of England will have exclusive jurisdiction in relation to any claim, dispute or difference concerning this engagement letter and any matter arising from it. Each party irrevocably waives any right it may have to object to any action being brought in those courts, to claim that the action has been brought in an inappropriate forum, or to claim that those courts do not have jurisdiction.
Electronic communication and data transfer, methods and media
In recent years there has been a move towards greater transmission electronically to and from Government, quasi Government bodies and other commercial organisations and this will in future be one of the normal methods of communication we use, unless we are specifically instructed otherwise. We may also transmit information to you electronically from time to time using your last known email/electronic address.
Internet communications including emails are capable of data corruption and interception by third parties, especially if unencrypted, and therefore we do not accept any responsibility for changes made to such communications after their despatch. It may therefore be inappropriate to rely on advice contained in an e-mail without obtaining written confirmation of it. We do not accept responsibility for any errors or problems that may arise through the use of internet communication/emails and all risks connected with sending and/or receiving commercially sensitive information relating to your office/your business are borne by you. If you do not agree to accept this risk, you should notify us in writing that internet/e-mail is not an acceptable means of communication.
It is the responsibility of the recipient to carry out a virus check on any e-mail and attachments received or internet based connection.
Transfer of information/data to or from our offices or held in our offices on a clients unencrypted data storage device is potentially not secure upon loss of such a device or digital storage media of any type. We do not accept responsibility for any loss of such unencrypted data and all risks relating to such unencrypted personal data or commercially sensitive information relating to your affairs/your business are borne by yourself if made available by you to us.
Electronic communications, including but not limited to telephone calls, facsimile and email messages, maybe be intercepted, monitored, recorded and stored in accordance with the Regulation of Investigatory Powers Act 2000, the Telecommunication (Lawful Business Practices) (Interception of Communications) Regulations 2000 and the Data Protection Act 1998 for the purposes of quality assurance, system security, detection and prevention of crime and for other operational reasons.
Data Protection Act 1998
We may obtain, use, process and disclose personal data about you in order that we may discharge the services agreed under this engagement letter, and for other related purposes including updating and enhancing client records, analysis for management purposes and statutory returns, crime prevention and legal and regulatory compliance. You have a right of access, under data protection legislation, to the personal data that we hold about you. We confirm that when processing data on your behalf we will comply with the provisions of the Data Protection Act 1998. For the purposes of the Data Protection Act 1998, the Data Controller in relation to personal data supplied about you is Mr J D Cater.
The services, work and advice which we give to you are for your sole use and should not be used for any other purpose or disclosed to any other person without our express written consent. In the event that it is communicated to any third party by you then it does not constitute advice from our firm to any third party to whom we owe no duty of care, and we will not be liable for any reliance it chooses to place upon such information nor for any loss, damage or expense of whatsoever nature thereby arising. We accept no responsibility to third parties for any aspect of our professional services or work that is made available to them.
Contracts (Rights of Third Parties) Act 1999
Persons who are not party to this agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not effect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
In common with all accountancy and legal practices the firm is required by the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007 to:
Maintain identification procedures for all new and existing clients;
Maintain records of identification evidence obtained; and
Report in accordance with the relevant legislation and regulations.
We have a duty under s. 330 of the Proceeds of Crime Act 2002 to report to the Serious Organised Crime Agency (SOCA) if we know, or have reasonable cause to suspect, that you, or anyone connected with your business, are or have been involved in money laundering. Failure on our part to make a report where we have knowledge or reasonable grounds for suspicion would constitute a criminal offence.
The offence of money laundering is defined by s. 340(11) of the Proceeds of Crime Act and includes concealing, converting, using or possessing the benefits of any activity that constitutes a criminal offence in the UK. It also includes involvement in any arrangement that facilitates the acquisition, retention, use or control of such a benefit. This definition is very wide and would include amongst others such crimes as deliberate tax evasion, deliberate failure to inform the tax authorities of known underpayments or excessive repayments, fraudulent claiming of benefits or grants; or obtaining a contract through bribery.
We are obliged by law to report any instances of money laundering to SOCA without your knowledge or consent. In fact, we may commit the criminal offence of tipping off under s. 333 of the Proceeds of Crime Act if we were to inform you that a report had been made. In consequence, neither the firms' principals nor staff may enter into any correspondence or discussions with you regarding such matters.
We are not required to undertake work for the sole purpose of identifying suspicions of money laundering. We shall fulfil our obligations under the Proceeds of Crime Act 2002 in accordance with the guidance published by The Institute of Chartered Accountants in England and Wales.
If we have agreed to act as your Registered Office we will endeavour to communicate matters received by us in a timely fashion to you. This may be by postal service or otherwise and we can not accept responsibility for failure to deliver or consequences arising from non-receipt.
In the event that we are unable to contact you we reserve the right at our sole discretion to change the Registered Office address to your last known correspondence or physical location address.
Limitation of Liability
We will provide our professional services with reasonable care and skill. However, we will not be held responsible for any losses arising from the supply by you or others of incorrect or incomplete information, or your or others’ failure to supply any appropriate information or your failure to act on our advice or respond promptly to communications from us or other relevant authorities.
You agree to hold harmless and indemnify us against any misrepresentation, whether intentional or unintentional, supplied to us orally or in writing in connection with this agreement. You have agreed that you will not bring any claim in connection with services provided to you by the firm against any of our employees on a personal basis.