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Debt Guard Standard Terms of Business

  1. Debt Guard
    1. Debt Guard and Debt Guard Solicitors are trading styles used by Ascent Performance Group Limited, a company registered in England & Wales under the Companies Acts with number 6742453. Any reference to “Debt Guard“, “Debt Guard Solicitors” “us” or “we”, whether in this or any other document or communication from us, is to Ascent Performance Group Limited and all contracts entered into and all advice given in relation to our business are entered into or are given by Ascent Performance Group Limited only.
    2. All contracts and/or obligations entered into or advice given in relation to our business by directors , employees or consultants of Debt Guard are entered into or given by Ascent Performance Group Limited and not those individuals personally.
    3. Debt Guard may assign our rights and/or our obligations under our agreement with you to any business which is a successor to our business or a part of it.
    4. Ascent Performance Group Limited is authorised and regulated by the Solicitors Regulation Authority and is therefore subject to rules and principles of professional conduct. The website of the Solicitors Regulation Authority (SRA) includes details of the relevant code of conduct: http://www.sra.org.uk/solicitors/handbook/code/content.page. We are also authorised and regulated by the Financial Conduct Authority.
    5. We may sub-contract litigation matters to Irwin Mitchell LLP, Irwin Mitchell Scotland LLP or to any successor of any part of its or their operations or business. In such cases, we will remain responsible for all the acts and omissions of the subcontractors as fully as if they were the acts and omissions of ourselves or our employees or agents. We will be your point of contact for the services and all charges payable by you in respect of such sub-contracted services shall be payable to us.
  2. Our fees and expenses
    1. We will quote fees applicable to our standard services on the relevant pages of the Debt Guard website and by taking an action to process recovery of your debt you are agreeing that you have viewed these fees and agree to them. Fees will always be fixed for the standard process undertaken by Debt Guard. Where matters become defended or complex then we will always quote fees to you prior to commencing any non-standard work.
    2. We will assume that we have authority to incur usual expenses (known as disbursements) in the course of our work for you unless you tell us otherwise. These will be charged to you as costs in addition to our fees and in some instances may be billed separately. Examples of disbursements are court fees or search fees.
    3. Where we do not agree a fixed or other fee, our fees for most services are calculated at a rate of £100 per hour or part thereof. We will always advise you of the basis for charging in advance of undertaking the work if it falls outside of our fixed fee rates.
    4. We may make other charges for services provided internally, for example, photocopying or the provision of data via electronic storage devices. Such charges will be shown separately on the bill.
    5. You may set a limit on the fees and disbursements we may incur without your consent. If you wish to do so please confirm the limit in writing.
    6. Where we are instructed to act for more than one person, your liability for our fees and expenses shall be joint and several.
    7. If, for any reason, the matter does not proceed to a conclusion, we will charge you for work done and expenses incurred up to the point we cease acting.
    8. All costs information provided by us, and all references in this document to fees, disbursements and other amounts exclude Value Added Tax unless expressly stated otherwise, and where applicable VAT will be charged in addition to such amounts. Our VAT number is 945758768.
    9. For standard Debt Guard services we will invoice our fees monthly to you and will include all disbursements incurred in the month including court fees that we will have paid on your behalf. Our payment terms are strictly 7 days from the date of the invoice. Where matters become defended or complex we shall be entitled to deliver interim bills to you before the conclusion of your matter at our discretion. Such interim bills will be either interim bills on account which may not include all the costs incurred during the period covered by the bill and may be adjusted when we deliver our final ‘statute’ bill, or interim ‘statute’ bills which are self-contained and complete final bills for the period or work to which they relate. The provisions of part III of the Solicitors Act 1974 affecting your rights and ours will apply to both interim statute bills and to final statute bills to the extent that, where lawfully we are able to vary those rights by agreement, we have not otherwise agreed to vary those rights
  3. Estimates
    1. At appropriate intervals, or at any time at your reasonable request, we will provide estimates of the likely overall cost of the work we are doing for you. However, changing circumstances and facts which are unknown to us can affect the level of work required. Accordingly such estimates are intended only as a general guide and should not be regarded as fixed quotes.
  4. Payment of our bills
    1. Our standard payment method for Debt Guard is by Direct Debit. Where this method fails we may accept payment by cheque, banker’s draft, BACS transfer, bank transfer, telegraphic transfer, debit card or credit card (Mastercard or Visa) to resolve the non-payment . We are unable to accept cash in excess of £250. When sending any payment to us, please ensure that you quote your name and our reference. Continued failure of Direct Debit payments may lead us to decline to act further on the matter(s) to which the invoice relates, regardless of whether alternative payment methods resolve those failed monies.
    2. If you transfer any amount to us by credit card, we reserve the right to deduct an appropriate service charge in recognition of the cost to us for processing the transaction. This rate is available on request.
    3. If we hold money which belongs to you (for example, money paid on account, or costs or damages received from another party) we may, after providing you with written notification of costs incurred, deduct the amount of our outstanding costs (including disbursements and VAT) from those funds before paying the balance to you.
    4. All of our bills are payable within 7 days. In the event of a bill not being paid promptly we may decline to act further on the matter to which the bill relates and any other matter on which you have instructed us, and deliver a final bill. You agree that we are not responsible for any loss resulting from such inactivity.
    5. For matters involving court proceedings, known as ‘contentious business’, if you refuse or fail within a reasonable time to pay a bill on account of costs then, under section 65(2) of the Solicitors Act 1974, your refusal or failure shall be deemed to be a good cause whereby we may, upon giving reasonable notice to you, withdraw from the retainer. In addition, pending payment of any interim bill we may suspend work and/or decline to act further.
    6. We may charge interest on unpaid amounts at the rate of 3% above the base rate for the time being of HSBC Bank plc or, at our discretion, at the rate applicable to judgment debts. We reserve the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. Interest on unpaid amounts shall take effect from one month of the date of delivery of our bill where the bill includes non-contentious work, and from the date of delivery of our bill in relation to contentious work.
    7. We shall be entitled to keep documents, money or other property belonging to you which has come into our possession in relation to any matter until we have been paid in full for all work carried out on your behalf This is known as ‘exercising a lien’.
    8. You may be entitled to apply to the court for an assessment of our bill under Part III of the Solicitors Act 1974.
  5. Money we hold on your behalf
    1. Whilst we do not expect to receive debtor payments on your behalf in the event that such a payment occurs then, in accordance with our policy on the payment of interest (available on request), where we hold monies on your behalf and interest is paid to us in relation to the same, we will pay a sum to you in lieu of the interest accrued unless that sum would be £20 or less. No tax will be deducted where we pay you a sum in lieu of interest and therefore you should disclose the amount received on your annual tax return.
    2. The interest rate applicable will be that payable on the firm’s general client account which is an instant access account. The rate of interest may be lower than the rates of interest which may be available at other institutions and in relation to other deposit accounts or financial products. Under the European Savings Directive, if we pay interest to an individual or company outside the UK but within the EU, we will declare the interest paid to HMRC.
    3. We use a variety of banks for depositing client monies because this spreads the risk of loss. Although we believe monies held by each of these banks are secure, we are not in a position to guarantee this and it is unlikely that Irwin Mitchell LLP will have any liability to you in the event of the loss of your funds as a result of the failure of the bank holding our client account.
    4. We are advised that funds held by us in our client account on behalf of clients who are individuals or small businesses are covered by the Financial Services Compensation Scheme (“FSCS”). You should be aware that the scheme covers only a limited amount of your deposits with any authorised institution (£85,000). This limit applies per depositor per institution. If you have your own account with the bank in question then the FSCS would, in calculating the £85,000 limit, aggregate all monies held in your name together with all funds belonging to you held in our client account in that bank. In the event that it is necessary to make a claim under the FSCS we will be required to send your details to FSCS. If you do not consent to this, please let us know now so that we may mark our records accordingly.
  6. Litigation costs
    1. An award of costs in your favour against another party does not affect your primary responsibility for payment of our fees and disbursements. Recovery of costs from a losing party can be a time consuming process and we may bill you before the conclusion of any proceedings to recover costs. You will have to pay the fees and expenses incurred in any such proceedings. If you are VAT-registered, you must pay the VAT element of our charges in any event.
    2. To the extent that our fees and disbursements have not been covered by payment of interim bills, we will retain any costs paid by your opponent, plus any interest earned on such costs.
    3. Unless we have entered into a conditional fee agreement with you we are not acting on a conditional fee basis.
  7. Compliance activities
    1. To comply with the Money Laundering Regulations, which are designed to prevent the circulation of monies arising from serious crime, drug trafficking and terrorism, we need to obtain proof of your identity or, where we are instructed by a company, confirmation of the ownership of the company. We verify the identity of individual clients by undertaking an electronic check against your personal details. Similarly we undertake an electronic check regarding ownership for company clients. If our electronic checks are unsuccessful we may ask you to provide documentation confirming your identity and / or confirming company ownership. We will let you know if we require additional documentation. We may be unable to carry out your instructions if we are unable to verify your identity or, in some instances, the identities of your directors, shareholders and beneficial owners.
    2. We are also required by anti-money laundering legislation to report to the appropriate authorities any knowledge or suspicion that a client’s funds (or any funds provided for or on behalf of a client) derive from the proceeds of crime. We may be obliged to make a report in circumstances where we cannot tell you that we have done so and may have to cease acting for you in those circumstances. You agree that we are not responsible for any adverse consequences for you that may arise as a result of our compliance with laws and regulations.
    3. Occasionally our legal and professional duties require that we undertake compliance work while a matter is ongoing. An example of this would be work done to make sure we comply with money laundering legislation. Because of legal restrictions it may not be possible to inform you about these activities. We reserve the right to add a reasonable amount to our invoice in respect of all compliance work.
  8. Bankruptcy and IVA
    1. You must inform us immediately if you are, or have ever been declared bankrupt and if you are declared bankrupt while we are acting for you. The implications of bankruptcy are complex and the legal obligations imposed as a result are serious and it is vital that they are addressed.
    2. If you have been declared bankrupt and Court proceedings become necessary, a legal claim cannot be issued in your name unless your Trustee in Bankruptcy has granted a Deed of Assignment allowing you to do this before the claim is issued. If no Deed of Assignment is granted then any proceedings issued in your name will be void and you could be responsible for all the legal costs of the Defendant.
    3. If you are the subject of an Individual Voluntary Arrangement then this may also affect any claim and again you must inform us of that fact immediately.
  9. Data protection
    1. To provide you with legal services, we need to record and maintain certain factual information on your personal circumstances which we may hold in hard copy and electronic form. In addition to the information that you provide, we may in the course of acting for you, receive information about you from third parties such as Companies House, your accountants, your associated companies, etc. We may use all information we hold about you, including sensitive personal information, for the purposes of providing our services to you and, where relevant, your insurer(s), and maintaining records about you that we must keep by law or under regulatory requirements.
    2. You agree that we may communicate with you using electronic means, knowing that, although we will take appropriate measures to protect data, certain risks (including, for example, interception, unauthorized access and risk of viruses) are associated with such means.
    3. From time to time we share information with other entities which directly or indirectly control, are controlled by, or are under direct or indirect common control with Ascent Performance Group Limited or entities with which we are associated. We may also share information with Irwin Mitchell Scotland LLP where this is necessary. In doing so we will maintain confidentiality and legal professional privilege.
    4. We may use the information that we hold about you, other than sensitive personal information, for our internal market research purposes and to send you information from time to time on services provided by Debt Guard which we think may interest you. If you do not want us to send information to you in relation to Debt Guard’s other services then please contact the person in charge of your matter and let them know.
    5. We do not pass any information about our clients to third parties for commercial exploitation. We pass client information to third parties only where it may be necessary or beneficial in carrying out the work for which you have instructed us or where we have to disclose information to third parties because of our legal or regulatory obligations or to prevent fraud or money laundering. By way of example, documentation and information containing your personal details (such as your name, address and details of your claim) may, on occasions, have to be sent to the person you are making a claim against, their lawyer or their insurer. This may take place before or after you decide to issue court proceedings, but any such action is taken in accordance with our standard practices and protocols. We may pass relevant information to our insurers if we are concerned that our work for you may have given rise to a possible liability to you on our part.
    6. Any third party to whom we disclose information about you will be under an obligation to keep your information secure and not to use it for any other purpose than that for which it was disclosed. Some third parties to whom we disclose information may be situated outside the European Economic Area and you agree to our disclosing such information to such third parties where reasonably necessary.
    7. Where you are a trustee or are acting as a representative, attorney, litigation friend (or are acting in an equivalent representative capacity) of another person, you agree to advise that person that their personal information will be dealt with on these terms, as if each reference to “you” or “your” in this section includes a reference to that person. Unless you inform us otherwise, by disclosing any personal information to us about a person you are representing, we will assume that you have obtained consent to enable the use of such information on these terms.
    8. Under the Data Protection Act 1998, you are entitled (on payment of a fee and subject to some exceptions) to a copy of the information we hold about you. If you would like to obtain this information please contact the data protection compliance officer in writing stating what personal information you wish to access.
  10. ISO Standard
    1. As part of our commitment to quality, Irwin Mitchell LLP is certificated to the international quality standard BS EN ISO 9001. To maintain our certification we are subject to regular external audit by a third party which includes providing access to client files. The external auditors have given an undertaking of confidentiality to this firm. By agreeing to these terms and conditions you will be deemed to have consented to that access. You may withdraw your consent at any time. If you decide not to give your consent to the audit of your files for ISO purposes this will not affect the conduct of your matter or the quality of service we will provide.
  11. Storage of papers and documents
    1. Our usual practice is to keep your file relating to a matter for six years following the date of the final bill we send to you for the relevant work, after which it may be destroyed. The file may be stored as a paper copy or electronically. Files relating to claims for children or persons who are unable to manage their own financial affairs will be kept for longer. This does not apply to original legal documents such as property deeds, share certificates and signed agreements. If after the conclusion of this matter we produce or make copies of anything on the file for you, we may make a charge for this based on time spent.
  12. Equality and diversity
    1. We are committed to promoting equality and diversity in all our dealings with clients, third parties and employees. We are happy to make reasonable adjustments to the service we provide to assist clients and visitors with a disability. Please ask the person dealing with your matter if we can help in this way.
  13. Professional Indemnity Insurance
    1. Ascent Performance Group Limited maintains Professional Indemnity Insurance cover in accordance with the SRA Indemnity Insurance Rules. Minimum Mandatory Cover is provided by Underwriters at Lloyds (Syndicate 1955), care of Libra Managers, New City Court, 20 St Thomas Street, London SE1 9RR. Our professional indemnity insurance covers all legal jurisdictions. This cover together with the Compensation Fund operated by the Solicitors Regulation Authority provides clients with significant protection. Details of the Compensation Fund are available on request.
  14. Complaints procedure
    1. Our complaints procedure is available on request from Ascent Performance Group Limited, 20th Floor, City Tower, Piccadilly Plaza, Manchester, M1 4BT. Although he will not have principal responsibility for your matter, the person with overall responsibility for Ascent is our Chief Executive Niall Gilhooley. If you have a problem, you are entitled to complain and this can include a complaint about our bill.
    2. All solicitors must attempt to resolve problems that may arise with their services. If you have any concerns, it is important that you raise them with us within six years of the act or omission about which you are concerned, or three years from when you should have known about the complaint.
    3. If, for any reason, we are unable to resolve the problem between us, then it may be open to you to refer your concerns to the Legal Ombudsman. Where we act for a business, the Ombudsman scheme is only available if that business can be defined as a ‘micro-enterprise’. Normally, you will need to bring a complaint to the Legal Ombudsman within six months of receiving a final written response from us about your complaint. In certain circumstances the Legal Ombudsman may accept a complaint outside of these timescales and further information about that is available from their website. Contact details for the Legal Ombudsman are as follows:Telephone: 0300 555 0333
      Email: enquiries@legalombudsman.org.uk
      Website: www.legalombudsman.org.uk
      Postal: Legal Ombudsman, PO Box 6806, Wolverhampton, WV1 9WJIn addition, as Debt Guard operates under a Consumer Credit Licence if we are unable to resolve your complaint internally, you also have the right to contact the Financial Ombudsman Service, whose details are set out below. The Financial Ombudsman Service has similar timescales as set out above.Telephone: 020 7964 1000 (switchboard)
      Email: complaint.info@financial-ombudsman.org.uk
      Website: financial-ombudsman.org.uk
      Postal: The Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London E14 9SR
  15. Limitations on our liability to you
    1. We accept instructions from you on the basis that services provided by Debt Guard are provided solely for your benefit and we do not assume any liability to any person other than you in relation to the advice we give you. Unless we indicate otherwise in writing, we assume no responsibility or liability (including liability for fees) in relation to the acts or omissions of, or advice given by, any experts, consultants or other advisers (including legal advisers) engaged in relation to any matter connected with your instructions to us.
    2. Our advice is confidential to you and Debt Guard shall not be responsible if you make it available to third parties. Advice we give may be covered by legal professional privilege and if you show it to others it may cease to be privileged, and therefore become disclosable to other parties to a dispute.
    3. No person who is not a party to the agreement embodied in these standard terms and conditions and the relative covering letter(s) shall, in the absence of express provision to the contrary, have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms, but this does not affect any right or remedy of a third party which exists or is available other than under that Act.
    4. You shall not bring any claim against any of our directors, employees or consultants in his or her personal capacity in connection with the advice we give you save in circumstances of fraud by a member, employee or consultant. We shall not seek to avoid any liability to you on the grounds that the relevant claim should be brought against one or more of our members, employees or consultants and not Ascent Performance Group Limited.
    5. Debt Guard shall not be liable for any delay in performing or failure to perform any of our obligations to you if such delay or failure results from events or circumstances outside our control, including, without limitation, transport or communications failure; the consequences of a terrorist attack; failure of our computer systems; or damage to our premises or storage facilities by explosion, fire, corrosion, flood, natural disaster, malicious or negligent act or accident.
    6. In connection with these instructions Debt Guard shall not be liable to you for any indirect or consequential loss or damage (including loss of profits) suffered by you or any other person.
    7. Where you agree to a limit being imposed on the liability of any other professional or financial advisers instructed by you in relation to this matter for loss or damage resulting from the performance of or failure to perform their respective duties, the liability of Debt Guard and/or any of its directors will not in any event exceed what it would have been had the liability of such other advisers not been so limited and had the contribution of all such advisers, but for such limitation, been proportionate to their respective responsibilities for such loss or damage.
    8. The liability of Debt Guard to you shall be reduced to take into account any contributory negligence on your part.
    9. Paragraphs 15.1 to 15.5 (inclusive) above shall not apply in relation to any liability to you we may incur arising from your instructions in this matter if these terms of business constitute a contentious business agreement (as defined in section 59 Solicitors Act 1974). The agreement of which these standard terms and conditions form part shall not be a contentious business agreement unless we have agreed this with you in writing.
    10. Our liability shall not be limited by anything in paragraphs 15.1 to 15.5 (inclusive) (or by any limitation on our liability set out in any of the documents referred to in paragraph 17.1 below) in relation to death or personal injury or in circumstances of fraud or reckless disregard of professional obligations.
  16. Termination
    1. You may terminate your instructions to us at any time by notice in writing.
    2. We may decide to stop acting for you only with good reason, for example if you fail to pay your bills, if you fail to give us adequate instructions to enable us to advise you, if a conflict of interests arises which prevents us from continuing to act, or if you fail to provide any evidence of identity we have requested. If you are a body corporate, partnership or unincorporated association we may stop acting for you if you: cease or threaten to cease carrying on business; suspend making payments on any of your debts or announce an intention to do so; are or are deemed for the purposes of any law to be, unable to pay your debts as they fall due or insolvent; enter into or propose any composition, assignment or arrangement with your creditors generally; take any step or suffer any step to be taken in relation to your winding-up, dissolution, administration (whether out of court or otherwise) or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise); have a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer appointed (in each case, whether out of court or otherwise) in respect of you or any of your assets; have any security over any of your assets enforced; or any analogous procedure or step is taken in any jurisdiction. We will give you reasonable notice if we intend to stop acting for you.
    3. If you terminate your instructions or we stop acting for you with good reason, you must pay our fees and expenses up to the date that we cease acting, including any costs we incur in removing our name from the Court record, and/or transferring our files to you or another adviser.
  17. General
    1. These standard terms and conditions supersede any previous arrangement with you concerning their subject matter and must be read in conjunction with all accompanying and subsequent correspondence and documentation sent to you relevant to the terms on which we act. Together, they set out the terms of business governing the work we do for you on a particular matter. Each provision of such terms of business is severable and distinct from the others. These terms of business cannot be amended except with our written agreement or as provided in these terms of business.
    2. Unless we notify you otherwise, these standard terms and conditions shall apply to any future instructions you give us.
    3. Your continuing instructions on any particular matter will indicate your acceptance of these standard terms and conditions and any other terms we may agree in writing.
    4. These standard terms and conditions and any other terms we may agree with you are governed by English Law and any dispute relating to them shall be subject to the exclusive jurisdiction of the English Courts, provided always that we may in our absolute discretion refer any dispute to binding arbitration in London under the Rules of the London Court of International Arbitration, which Rules are deemed incorporated by reference into this paragraph, and in which case the number of arbitrators shall be one, the language to be used in the arbitral proceedings shall be English and the seat of the arbitration shall be England. These terms are provided in English and we will communicate with you in English. This paragraph 17.4 is subject to our obligations under law and the rules of professional conduct by which we are bound.
    5. You may not assign all or any part of the benefit of, or your rights and benefits under, the agreement of which these standard terms and condition form part.
    6. We will advise you on the law applicable in England only and, unless agreed otherwise, are not responsible for advising you as to the effect or enforceability of any documents or matters which may be subject to or governed by laws of any other jurisdiction.
    7. Copyright may arise in documents, reports or other material which we produce for you. We shall own this copyright and without our prior written agreement payment of our bill will not transfer it to you.
    8. Unless we specifically agree otherwise in writing, no communication by Debt Guard in the course of our work for you is intended to be, or should be construed as, an invitation or inducement to any person to engage in investment activity for the purposes of the Financial Services and Markets Act 2000, or as the approval of any communication of any such invitation or inducement.
    9. We may submit your file for external review as part of our procedures to ensure that our internal quality management systems are effective. We will only do so with your consent.
    10. Unless you specifically instruct us to advise on tax planning matters, our advice will not concern or take into account the taxation implications or consequences of any course (or possible course) of action.
  18. Arrangements with Third Parties
    1. You may have been introduced to Debt Guard by a third party. We have agreements with some introducers where we pay them a fee for making the introduction. The fee will vary but will generally be between £15 – £40 for each new client that is introduced, or a fee sharing arrangement where we might share up to 20% of our fees. Should you require any further information regarding this please contact us. Any such arrangements will not affect the advice or service that Debt Guard provide to you and under no circumstances will you be asked to reimburse Debt Guard for any payment we make.

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