TERMS OF ENGAGEMENT (MEDICAL NEGLIGENCE)
The following terms apply to all medical negligence clients within South Australia.
We confirm that you wish for us to act for you in a South Australian medical negligence matter.
Before commencing work we are required to set out the following general terms on which we accept instructions.
2. Scope of the Legal Work
2.1 You have instructed us to advise and if required, represent you at the
Magistrates and/or District Court with regards to a Medical Negligence claim. .
2.2 We will accept instructions from you and will represent you.
3. Doing the Work
As previously advised, you have a primary legal practitioner responsible for and in control of this matter. This legal practitioner is also the person whom you may contact with regard to legal costs. However there may be changes of legal practitioner responsible over time (which will be notified to you) and other legal practitioners or legal staff may work on the matter from time to time as we consider necessary.
4.1 We will charge for our services in accordance with the Boylan Lawyers Scale of Costs which is based on the scale fixed by the Higher Court, as varied by the Court from time to time. It is a term of this agreement that any increase in the Higher Court Scale will result in an increase to the Boylan Lawyers Scale of Costs and consequently the increase will apply automatically to you. A copy of the Boylan Lawyers Scale of Costs is attached.
4.2 We charge you fees for our services if your claim is successful, whereby you receive a benefit or payment, but not if it is unsuccessful in which case we will not charge you fees for our services. This is sometimes referred to as a “no win no fee” agreement. However, you may still incur disbursement expenses as outlined in clause 6 of this agreement and if you are unsuccessful and a claim for costs is made by the other side then you may be liable to pay same in those circumstances.
4.3 There may be other legal practitioners who would be prepared to act for you and charge you differently and this may result in a lower charge. You are entitled to seek independent legal advice regarding this or any other term of this agreement.
5. Cost Estimates
5.1 We only charge fees if you recover a monetary sum including, but not limited to, a payment of a lump sum by way of a settlement agreement or payment due to an order of the Court.
5.2 Your fees and expenses to be incurred with us in carrying out your instructions, subject to the factors set out below, were advised (exc of GST). We will not charge you for our fees if you do not receive a monetary payment as described above in clause 4.
5.3 We emphasise that the above estimated range is just that, a preliminary estimate covering the anticipated costs associated with considering your claim and getting proceedings filed. It is not a quote or a fixed charge and, indeed, it can be less than that amount. Our fees can vary depending on the extent of work required to obtain the best result, which is based on the approach and attitude of other parties, the available evidence in support of your claim, and other factors. These matters cannot be accurately determined in advance. Nevertheless, on the information that we have to date, and in our experience, the estimate given seems reasonable.
5.4 You are also liable for disbursements as described in clause 6.
6.1 In addition to our fees we charge you for the out of pocket expenses incurred or paid on your behalf (called disbursements).
6.2 Out of pocket expenses incurred by us such as fees of barristers, court fees, agents, Government and local authorities fees, STD, international calls and couriers are charged at the cost to us. We do not charge for mobile or local telephone calls.
6.3 Should we see a need to incur expenses on your behalf which are unusual as to their nature or extent (including in litigious matters expenses which are unlikely to be recoverable from the other side if you win and obtain a costs order), we will provide you with advice and seek your specific instructions before incurring such expenses.
6.4 Disbursements are incurred by us as your agent. In the event that the disbursement is subject to GST you will be required to pay the GST.
7. Goods and Services Tax (‘GST’)
Our fees are subject to GST. Under these Terms the amounts or rates quoted for fees are inclusive of GST.
It is a term of this engagement that you, as client, pay not only our fee/s but any GST in respect of the fee/s.
To the extent that disbursements we incur for you or on your behalf are subject to GST, GST will also be payable by you in respect of those disbursements.
It is a term of this engagement that you, as client, pay not only the disbursements, but that you pay or reimburse us for any GST paid or payable in respect of the disbursements.
8. Legal Costs – Your Right to Know
You have the right to:
- negotiate a costs agreement with us;
- receive a bill of costs from us;
- request an itemised bill of costs after you receive a lump sum bill from us;
- request written reports about the progress of your matter and the costs incurred in your matter;
- apply for costs to be adjudicated within 6 months if you are unhappy with our costs;
- apply for the costs agreement to be set aside;
- make a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging);
- accept or reject any offer we make for an interstate costs law to apply to your matter;
- notify us that you require an interstate costs law to apply to your matter.
For more information about your rights, please read the fact sheet titled Legal Costs—your right to know. You can ask us for a copy or obtain it from the Law Society of South Australia (or download it from their website).
9. Updating of Advice
You have the right under clause 17 of Schedule 3 of the Legal Practitioners Act to be notified of any substantial change to the matters to be disclosed to you under clause 10 of Schedule 3, including any substantial change to the estimated costs of work.
10. Litigation Matters
10.1 The estimate in 5 above only refers to the costs we charge you. In addition, the Court may order you to pay other moneys, including some or all of the costs of other parties.
10.2 Your costs with us are payable by you according to our payment terms whether or not you may, if successful in your action, have rights to recover some of your costs from another party or parties.
10.3 The scale of fees which applies in the Court in which your action will run will usually determine what can be recovered from the other party if you are successful.
10.4 It is a term of this engagement that you, as client, are aware and acknowledge that you have been advised by us, that even if you are successful in obtaining an order for costs payable by other parties in the litigation, such an order will not necessarily cover the whole of your legal costs. It is likely to be for an amount substantially less than the costs payable under these terms and in our experience it is likely to be no more than 50% to 70% of your costs due to us. You will have to meet the difference in these costs from your own pocket and/or your settlement and/or court ordered payment. It is only in the most exceptional circumstances that a court would order the losing party to pay all of the costs which we have charged you.
10.5 If you are unsuccessful you may be liable to pay the costs of other parties to the litigation. As we are not aware of the extent of the legal work which may be performed for the other side, it is difficult to be precise as to what the amount of such costs might be. We would estimate these may be between 50% to 70% of the amount of your own legal costs.
10.6 If we negotiate a settlement of a litigation matter on your behalf we will disclose prior to the settlement a reasonable estimate of our costs and an estimate of the contribution to those costs likely to be received from another party so that the likely minimum net amount that you will receive may be calculated.
11.1 We are entitled to bill you on an interim basis, provided that no bill is to be delivered less than twenty-one days after the delivery of a previous bill.
11.2 Accounts are to be paid within seven (7) days after delivery. Interest at the rate of [4.5%] per annum which is the Cash Rate Target as of the date the bill is issued plus 2%. Interest begins to run on our accounts once they have remained unpaid for thirty (30) days and shall be compounding and calculated on a daily basis. If an account does remain unpaid after seven (7) days after delivery, we may terminate the engagement.
11.3 The following avenues are available to you if you are not happy with a bill from us:
- requesting an itemised bill;
- discussing your concerns with us;
- having our costs adjudicated;
- applying to set aside our cost agreement;
- making a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging).
For more information about your rights, please read the fact sheet titled Your Right to Challenge Legal Costs. You can ask us for a copy, or obtain it from the Law Society of South Australia (or download it from their website).
12. No Apportionment of Liability
Where we act for two or more people or entities in a matter, each of you will be individually responsible for payment of our entire account whatever arrangements may be made between you. You agree that you are personally liable for our costs and disbursements even if the matter involves our acting for other persons and/or organisations. If you provide us with instructions for or on behalf of a third party or jointly with another party, you will be personally liable to pay for our services in accordance with these terms of engagement, irrespective of the liability of any third or other party to pay our fees.
13. Trust Money
13.1 We may ask you to pay money into our trust account from time to time to cover reasonably anticipated expenses, including counsel fees. These moneys are retained in our trust account for payment of disbursement or will be applied to our invoices (including GST) when they fall due for payment, or will be used in payment of particular expenses of this firm which are incurred on your behalf.
13.2 If you do not comply with any such request, we may cease acting for you in accordance with the following clause.
14.1 Your Right to Terminate this Agreement
You have the right to terminate our services at any time.
14.2 Cooling off period
You also have a five (5) business day cooling-off period commencing one business day after you sign this agreement. To exercise this right, you must provide us with written notice within this timeframe to the effect that you intend to terminate this agreement.
14.3 Our Right to Terminate this Agreement
We may terminate this agreement if there has been:
14.3.1. Good cause
This includes, but is not limited to, if you do not comply with the terms of this agreement, including clause 16 below, or if, in our view, the necessary relationship of trust and confidence no longer exists between us. We would give you reasonable notice and would then cease acting for you and, in any litigation, we would apply to be removed from the Court file as your legal practitioner.
14.3.2 Unreasonable refusal to accept a settlement offer
This occurs if you refuse to accept an offer to settle your matter if we have advised you that it is unreasonable to refuse in the circumstances.
14.4 Payment of fees on termination
All fees and expenses incurred prior to termination by either you or us are immediately billable to you as though you had been successful in your matter in the manner described in clause 4 above (except where you have terminated our Agreement as per the above Cooling Off period).
14.5 Holding of documents and monies until payment received
Subject to any court order or agreement to the contrary, we are entitled to retain all moneys, papers and records relating to this matter until our bills are paid.
15. Conflicts of Interest
We will not intentionally become involved in a situation where there is a conflict of interest of a legal nature between you, us and/or another client but if through inadvertence or unforeseen circumstances this should occur we may be obliged to terminate the engagement in this matter.
16. Storage of Records
16.1 We operate an electronic filing system. We do not store paper records for the majority of your documents. In most cases we will scan your documents and give them back to you.
16.3 All reasonable steps must be taken to keep personal information confidential, destroy or de-identify personal information if it is no longer needed for any purpose for which the information may be used or disclosed. The information obtained cannot be disclosed to any other person without the client’s consent being provided in the terms of engagement or through their instructions.
16.4 Boylans staff members are trained to maintain professional standards of confidentiality in their contact with clients, barristers and other professionals. Boylans has a policy of requiring staff to sign confidentiality agreements re the non-disclosure of personal information of clients. This is in addition to the staff being bound by the professional conduct rules.
16.5 Files are available only to staff members who have a need to use them for the purpose of providing the legal service. Computer data bases containing information are protected by passwords known only to Boylans staff. Boylans collect electronic data containing matter documents, such as; correspondence, statements, Court Documents, file notes, terms of engagement, client authorities and other documents relating to a specific matter. Where this data is cloud hosted, the cloud hosting services are to be provided in Australia. Boylans also collect electronic data containing client contact information, such as; name, address, email, phone number and other contact information. Where this data is cloud hosted it may be hosted in Australia or overseas. Whether data is hosted in Australia or Overseas through a cloud hosting provider, all reasonable steps will be taken to ensure the information is appropriately protected. Emailed information is handled confidentially according to Boylans policy and procedures.
16.6 Personal information held by Boylans has been provided, with consent, by clients themselves or referrers on their behalf. A client may have access to his/her personal details which are held in his/her own personal record in accord with the provisions of the Australian Privacy Principles. Information to be provided to client must be provided to him/her personally after it has been clearly established that he/she is the person about whom the information is requested. If a client considers that Boylans has breached his/her privacy or this policy, he/she may complain to the Managing Partner.
17. Your Agreement to Work with Us
It is a term of this agreement that you will reply to correspondence, return phone calls, respond reasonably to requests for instructions, information and documents, and pay accounts or pay money into trust when reasonably required. If you do not work with us in these ways then we may terminate this agreement. In such circumstances, you agree that you will file a notice of acting in person in any current court proceedings in which we have been acting for you.
It is a term of the engagement that should we receive any money from you or on your behalf other than for a specified purpose, we are at liberty to apply that money in payment of our outstanding accounts if nothing has been heard from you disputing the accounts within 7 days after delivery.
We own the copyright in all documents we author in supplying our services and you have the right to use those documents only for the purposes for which they are supplied.
20. Applicable law
These terms are governed by South Australian law. All parties consent to the non-exclusive jurisdiction of the courts of South Australia with regard to any dispute arising under or out of them.
20. Your Agreement to These Terms
Please contact Boylan Lawyers if there is anything in these Terms which you do not understand or with which you disagree. You are also entitled to seek independent legal advice on the contents of the above Terms.
We note that you have a cooling off period of 5 clear business days during which you may, by written notice, terminate this agreement.
21. Cooling Off Period
We note that you have a cooling off period of 5 clear business days during which you may, by written notice, terminate this agreement.