technical factsheet 174

Transcription

1 technical factsheet 174 Enforceability of Engagement letters (The Cancellation of Contracts made in a Consumer s Home or Place of Work etc Regulations 2008 and The Consumer Protections (Distance Selling) Regulations 2000) A document produced by a collaborative working party with ATT, CIOT, ICAEW, ACCA, and ICAS and approved by Leading Counsel. While every care has been taken in the preparation of the example engagement letters, specimen schedules and standard terms and conditions, the Association of Chartered Certified Accountants and all those involved in the preparation and approval of this guidance do not accept any responsibility for any loss occasioned by reliance on the aforementioned documents.

2 ENFORCEABILITY OF ENGAGEMENT LETTERS Regulations exist which may render any engagement letter issued by a practitioner unenforceable by the practitioner against his client (although the client may still be able to enforce against the practitioner). Failure to comply with the regulations therefore may mean that, not only will the practitioner be unable to enforce payment of outstanding fees, but also that any limitation of liability included within the engagement letter would not be effective. It is therefore important that practitioners are aware of the relevant regulations and take steps to comply with them. The regulations are: (1) The Cancellation of Contracts made in a Consumer s Home or Place of Work etc Regulations 2008 ( Cancellable contracts ) and (2) The Consumer Protections (Distance Selling) Regulations 2000 ( Distance selling contracts ). The full regulations and guidance can be found at: (1) Cancellable contracts- (2) Distance selling contracts- This guidance is only a summary of the regulations and requirements for practitioners and practitioners should satisfy themselves that their processes and procedures comply. Attached are flowcharts to assist practitioners to determine whether the regulations apply and, if so, what notice should be sent to clients. At Appendix 1 are template notices practitioners may wish to adopt or amend. In summary, both sets of regulations ( the Regulations ) apply where a practitioner acts for a consumer. In practice this means that a practitioner should always consider whether the Regulations apply where he acts for an individual in relation to that individual s personal affairs. Practitioners should be aware that this will include cases where they act for directors of company clients (for example) in relation to the directors personal tax returns, as well as clients who specifically instruct them in relation to their personal tax affairs. If the practitioner acts for a consumer (as defined) then he must consider whether the cancellable contract regulations or the distance selling regulations apply. In each case this will require a consideration of where the contract was made and whether the client had met the adviser in person before the contract was entered into. Practitioners should be aware that a contract may well be entered into before the engagement letter is sent to the client. The engagement letter is evidence of the terms of the contract but not necessarily the contract itself. For example, if a potential client telephones to arrange a meeting with a practitioner to discuss the client s personal tax affairs, and a meeting is subsequently arranged, then the distance selling regulations may well apply if the client is liable to pay the practitioner s fees for that meeting. If, however, no charge is to be levied for the initial meeting, and the potential client is free to decide at or after the meeting whether or not they wish to instruct the practitioner, then the distance selling regulations will not apply, as no contract was made prior to the meeting. If a practitioner meets a client away from the practitioner s office and the client then instructs the practitioner, the practitioner should consider whether the cancellable contract regulations apply. It is clear that if the meeting took place at the client s home, then the cancellable contract regulations apply. It is less clear if they apply if the meeting took place at, for example, a hospital where the client was receiving treatment, but it is advisable to assume that they will apply in such circumstances, as well as in circumstances where the meeting took place in a social environment, in order to prevent the consequences of failure to comply. If the Regulations apply then the client should be sent a cancellation notice (a draft template is at Appendix 1, Form D). The notice has to be in writing. If a client is not sent a cancellation notice when he is entitled to then, in relation to cancellable contracts, the contract is unenforceable by the practitioner against the client. For cancellable contracts, the client has 7 days to cancel his contract with the practitioner commencing with the date that he receives the cancellation notice. For distance selling contracts, the client has 7 working days in which to cancel (but the cancellation period in that case expires in any event after 3 months). 2

3 Until the cancellation period expires the client can cancel the contract and may not be required to pay any fees to the adviser for work done in that period unless he has made a written request for the performance of the contract to begin before the end of the cancellation notice. Draft template requests to start work now are at Appendix 1 Forms A, B & C. Practitioners should consider whether to include in their file opening forms a checklist to establish whether a client is a consumer and if so, whether the cancellable contracts or distance selling regulations apply, so as to ensure that the appropriate notices are sent to those clients, to preserve the enforceability of the contract terms (and recovery of fees) against their clients. Practitioners should also be aware that it is a criminal offence to fail to comply with the cancellable contract regulations, as a strict liability offence, punishable by fine or imprisonment, so any practitioner who is unsure whether the Regulations apply in a specific matter should take specialist legal advice. 3

4 CANCELLATION OF CONTRACTS REGULATIONS NB - This flowchart is for illustration purposes only, to help you decide whether the Regulations apply. Certain exceptions may also apply. If in doubt seek professional advice. Are you acting for an individual as a consumer, eg in relation to their personal tax affairs? Was the agreement to act made at your office [and not during a visit to the client s home or workplace, or another individual s home, or on an excursion organised by yourself away from your own business premises]? The Regulations may apply even when contracts are concluded at a later date, back at your office - the fact that the agreement was first made away from your own office is the important thing. The Cancellation of Contracts made in a Consumer s Home or Place of Work etc Regulations 2008 ( Cancellation of Contracts Regulations ) do not apply. The Cancellation of Contracts Regulations do not apply. Have you provided your client with notice of right to cancel in writing in the form prescribed by the regulations and clearly and prominently displayed these cancellation rights in the written contract? If you begin work before the end of the 7 day cancellation period, you must get your client s express agreement. Your client has 7 days in which to cancel the contract. Your contract agreement may be legally unenforceable by you against your client and the consequences of failing to comply with the Regulations will apply.

5 DISTANCE SELLING REGULATIONS NB - This flowchart is for illustration purposes only, to help you decide whether the Regulations apply. Certain exceptions may also apply. If in doubt seek professional advice. Are you acting for an individual as a consumer, eg in relation to their personal tax affairs? Was your contract to provide services arranged in a face to face meeting and not over the phone or internet? The Regulations may apply even when contracts are concluded at a later date, back at your office - the fact that the first agreement was made over the phone or internet is the important thing. The Consumer Protection (Distance Selling) Regulations 2000 ( Distance Selling Regulations ) do not apply. The Distance Selling Regulations do not apply. If you begin work before the end of the 7 day cancellation period, you must get your client s express agreement. Have you provided your client with notice of right to cancel in writing in the form prescribed by the regulations? Your client has 7 working days in which to cancel the contract. The 7 working days cancellation period will not begin until you do, and may be extended by a further 3 months. Also your contract may be legally unenforceable by you against your client and the consequences of failing to comply with the Regulations will apply.

6 APPENDIX 1 [NB. Pre-populate where indicated] DISTANCE SELLING FORM A Where the Firm agrees to act for a client over the phone and meets the client within 7 days [Letter to the Client on Adviser letterhead.] Dear [Client] I refer to our [telephone conversation/ s] of [date]. As the contract for our services was initially made [over the phone/by ] the Consumer Protection (Distance Selling) Regulations 2000 apply. This means that you have the right to cancel your instructions to my firm within 7 working days of you receiving this letter. You can cancel your instructions by contacting the firm by post or fax to this office. Once I have started work on your file you may be charged, even if you then cancel your instructions. Given we are meeting in less than 7 days, I should be grateful if you would please sign a duplicate copy of this letter ticking the box start work now and return it to me as soon as possible. If I do not receive this before our meeting then your attendance at our forthcoming meeting will be taken as your implied instructions that you would like us to start work now. Please do not hesitate to contact me should you have any queries in advance of our meeting. Kind regards. Yours sincerely Adviser The Duplicate Letter Start work now [Client name] Dated 6

7 [NB. Pre-populate where indicated] DISTANCE SELLING FORM B Where the Firm agrees to act for a client over the phone but is not meeting the client within 7 days [Letter to the Client on Adviser letterhead.] Dear [Client] I refer to our [telephone conversation/ s] of [date]. As the contract for our services was initially made [over the phone/by ] the Consumer Protection (Distance Selling) Regulations 2000 apply. This means that you have the right to cancel your instructions to my firm within 7 working days of you receiving this letter. You can cancel your instructions by contacting the firm by post or fax to this office. Once I have started work on your file you may be charged, even if you then cancel your instructions. Please do not hesitate to contact me should you have any queries in advance of our meeting. Kind regards. Yours sincerely Adviser The Duplicate Letter Start work now [Client name] Dated 7

8 [NB. Pre-populate where indicated] DISTANCE SELLING FORM C Where substantive work will be undertaken by the Firm prior to meeting with the client [Letter to the Client on Adviser letterhead.] Dear [Client] I refer to our [telephone conversation/ s] of [date]. As you have instructed us to carry out work on your file prior to us meeting, the Consumer Protection (Distance Selling) Regulations 2000 apply. This means that you have the right to cancel your instructions to my firm within 7 working days of you receiving this letter. You can cancel your instructions by contacting the firm by post or fax to this office. Once I have started work on your file, you may be charged, even if you then cancel your instructions. Given I will need to commence work on your file within 7 working days in order to prepare for our forthcoming meeting, would you please sign the duplicate copy of this letter ticking the box start work now and return it to me as soon as possible. I will not be able to start work for you until I receive this letter. Please do not hesitate to contact me should you have any queries in this respect. Kind regards. Yours sincerely Adviser The Duplicate Letter Start work now [Client name] Dated 8

9 [NB. Pre-populate where indicated] CANCELLABLE CONTRACT FORM D [Letter to the Client on Adviser letterhead.] Dear [Client] TICE OF RIGHT TO CANCEL This notice has been provided to you because you have entered into a contract to which the Cancellation of Contracts made in a Consumer's Home or Place of Work Regulations 2008 ("the Regulations") apply. The contract is for the supply to you of services. Under the Regulations, you have the right to cancel this contract if you wish to do so. This Notice explains how to exercise this right. It also gives you other information which is required by the Regulations. In order to exercise your right to cancel the contract, you need to deliver or send a cancellation notice, that is, a written notice that you wish to cancel the contract. You can use the cancellation form provided overleaf if you wish, but you do not have to do so. You can send your notification by if you prefer. Any cancellation notice should be delivered or sent to [adviser]. You have 7 days in which to serve a cancellation notice. The period of 7 days begins on the date when you received this notice. The 7 day period is referred to in the Regulations as the cancellation period. Under the Regulations the cancellation notice is treated as being served as soon as it is sent or posted to us and a cancellation notice sent by electronic communication is treated as being served on the day when it is sent. If you agree in writing that the performance of this contract should begin before the end of the cancellation period, then, even if you cancel the contract, you may still be required to pay for the services supplied before the cancellation. The reference number to enable the contract to be identified is [XXXX]. This Notice is dated [XXXX]. The cancellation sheet is on the next page. If you have any questions then please do not hesitate to contact me. Kind regards. Yours sincerely Adviser 9

10 [NB. Pre-populate where indicated] CANCELLATION TICE TO: [Adviser] I/We hereby give notice that I/we wish to cancel my/our contract under the file reference [XXXX]. Signed:... Name and address: [Client] Date:... 10