These terms and conditions relate to the provision of Professional Services by MBI Coakley Ltd trading as MBI and Insolvency-Online (“MBICL"), as set out in the letter of engagement between the client and MBICL.
We will endeavour to record all advice regarding pertinent and important matters in writing. Advice given orally is not intended to be relied upon unless subsequently confirmed in writing. If we provide you with oral advice, for example by telephone or during a meeting, and you wish to rely upon that advice, you must ask for the advice to be confirmed in writing by us.
The Professional Services are those services agreed to be provided to the client and include but are not necessarily limited to the services set out in the engagement letter or any other written or oral agreement relating to the provision of services.
i Our work is not, unless there is a legal or regulatory requirement, to be made available to third parties without our written permission and we will accept no responsibility to third parties for any aspect of our professional services or work that is made available to them.
ii We will provide services as outlined in this letter with reasonable care and skill. Our liability to you is limited to losses, damages, costs and expenses caused by our negligence or willful default. However, to the fullest extent permitted by law, we will not be responsible for any losses, [penalties, surcharges, interest or additional tax liabilities] where you or others supply incorrect or incomplete information, or fail to supply any appropriate information or where you fail to act on our advice or respond promptly to communications from us [or the tax authorities].
iii You will not hold us [our] [principal][s] [director][s] [and staff], responsible, to the fullest extent permitted by law, for any loss suffered by you arising from any misrepresentation (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 we provide to you against any of our partners or employees personally.
ii We will provide the professional services outlined in this letter with reasonable care and skill. However, we will not be responsible for any losses, penalties, surcharges, interest or additional tax or other liabilities arising from the supply by you or others of incorrect or incomplete information, or from the failure by you or others to supply any appropriate information or your failure to act on our advice or respond promptly to communications from us or others.
iii You agree to hold harmless and indemnify us against any misrepresentation (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 IO against any of our employees on a personal basis.
i Our fees are computed on the basis of the time spent on your affairs by our Directors and staff and on the levels of skill and responsibility involved and the nature and complexity of the work involved. We shall on ocasion agree to limit our fees to a maximum amount, in these circumstances you will be notified of the fact in writing. Unless otherwise agreed, our fees will be billed at appropriate intervals during the course of the engagement and will be due on presentation.
ii If work is required which is outside the scope of this engagement letter, such as the provision of accounting services, then this will be a separate engagement for which additional fees will be chargeable. We will add value added tax, if applicable, at the current rate, together with any direct expenses incurred.
iii We reserve the right to charge interest on late paid invoices at the rate of 5% above the Bank of England base rate under the Late Payment of Commercial Debts (interest) Act 1998. We also reserve the right to suspend our services or to cease acting for you on providing you with written notice if payment of any of our fees is unduly delayed. We intend to exercise these rights only where it is fair and reasonable to do so.
The Provision of Service Regulation 2009
In accordance with the disclosure requirements of the Provision of Services Regulations 2009, our professional indemnity cover is provided by Nexus Underwriting Limited of 150 Leadenhall Street, London, EC3V 4QT, as Coverholder for Syndicates at Lloyd’s. The territorial coverage is worldwide excluding professional business carried out from an office in the United States of America or Canada and excludes any action for a claim brought in any court in the United States of America of Canada.
General Data Protection Regulation (EU) 2016/679
To enable us to discharge the services agreed under this engagement, 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, we may obtain, use, process and disclose personal data about you. You have a right of access, under data protection legislation, to the personal data that we hold about you. We confirm when processing data on your behalf we will comply with the provisions of the Data Protection Act 1998 and the General Data Protection Regulation ((EU 2016/679). For the purposes of the Data Protection Act 1998, the Data Controller in relation to personal data supplied about you is MBI Coakley Ltd.
In this clause, the following definitions shall apply:
‘client personal data’ means any personal data provided to us by you, or on your behalf, for the purpose of providing our services to you, pursuant to our engagement letter with you;
‘data protection legislation’ means all applicable privacy and data protection legislation and regulations including PECR, the GDPR and any applicable national laws, regulations and secondary legislation in the UK relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time;
‘controller’, ‘data subject’, ‘personal data’, and ‘process’ shall have the meanings given to them in the data protection legislation;
‘GDPR’ means the General Data Protection Regulation ((EU) 2016/679); and
‘PECR’ means the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003).
We shall each be considered an independent data controller in relation to the client personal data.
Each of us will comply with all requirements and obligations applicable to us under the data protection legislation in respect of the client personal data.
You shall only disclose client personal data to us where:
(i) you have provided the necessary information to the relevant data subjects regarding its use (and you may use or refer to our privacy notice available at our website www.mbicoakley.co.uk for this purpose);
(ii) you have a lawful basis upon which to do so, which, in the absence of any other lawful basis, shall be with the relevant data subject’s consent; and
(iii) you have complied with the necessary requirements under the data protection legislation to enable you to do so.
Should you require any further details regarding our treatment of personal data, please contact our data protection officer at email@example.com.
We shall only process the client personal data:
(i) in order to provide our services to you and perform any other obligations in accordance with our engagement with you;
(ii) in order to comply with our legal or regulatory obligations; and
(iii) where it is necessary for the purposes of our legitimate interests and those interests are not overridden by the data subjects’ own privacy rights. Our privacy notice (available at www.mbicoakley.co.uk) contains further details as to how we may process client personal data.]
For the purpose of providing our services to you, pursuant to our engagement letter, we may disclose the client personal data to members of our firm's network our regulatory bodies or any third parties (for example, our professional advisors or service providers).
We will only disclose client personal data to a third party provided that the transfer is undertaken in compliance with the data protection legislation.
We may disclose the client personal data to other third parties in the context of a possible sale, merger, restructuring or financing of or investment in our business. In this event we will take appropriate measures to ensure that the security of the client personal data continues to be ensured in accordance with data protection legislation. If a change happens to our business, then the new owners may use our client personal data in the same way as set out in these terms.
We shall maintain commmercially reasonable and appropriate security measures, including administrative, physical and technical safeguards, to protect against unauthorised or unlawful processing of the client personal data and against accidentlay loss or destruction of, or damage to, the client personal data.
In respect of the client personal data, provided that we are legally permitted to do so, we shall promptly notify you in the event that:
(a) we receive a request, complaint or any adverse correspondence from or on behalf of a relevant data subject, to exercise their data subject rights under the data protection legislation or in respect of our processing of their personal data;
(b) we are served with an information, enforcement or assessment notice (or any similar notices), or receive any other material communication in respect of our processing of the client personal data from a supervisory authority as defined in the data protection legislation (for example in the UK, the Information Commissioner’s Officer); or
(c) we reasonably believe that there has been any incident which resulted in the accidental or unauthorised access to, or destruction, loss, unauthorised disclosure or alteration of, the client personal data.
Upon the reasonable request of the other, we shall each co-operate with the other and take such reasonable commercial steps or provide such information as is necessary to enable each of us to comply with the data protection legislation in respect of the services provided to you in accordance with our engagement letter with you in relatio to those services.
Contracts (Rights of Third Parties) Act 1999 and limitation of third party rights
(i) A person who is not party to this agreement shall have no right under the contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person that exists or is available otherwise than pursuant to that Act.
(ii) The advice and information we provide to you as part of our service is for your sole use and not for any third party to whom you may communicatio it to, unless we have expressly agreed that such third party may rely upon our work or advice.
i We have a duty under section 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.
ii The offence of money laundering is defined by section 340(11) of the Proceeds of Crime Act and includes the acquisition, possession or involvement in arrangements for concealing the benefits of any activity that constitutes a criminal offence in the UK. This definition is very wide and would include:
[a] tax evasion through deliberate understatement of income or overstatement of expenses or stocks; or
[b] deliberate failure to inform the tax authorities of known underpayments.
iii We are obliged by law to report to SOCA without your knowledge and consent and in fact we would commit the criminal offence of tipping off under section 333 of the Proceeds of Crime Act were we to inform you of any suspicions or that a report had been made.
iv 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.
i If at any time we hold money on your behalf, including prior to our appointment as an Office Holder under the Insolvency Act 1986, the money shall be held on trust in either a designated interest bearing client bank account or in our general client account, as appropriate to the circumstances, such accounts being separate from MBICL’s funds.
ii Should any monies be held in an interest-bearing account, we shall, subject to any current taxation legislation, pay any interest to you gross.
iii Should there no longer be any reason for us retaining funds on your behalf we shall immediately return such funds. Should we be retaining funds on behalf of a client where we have not been appointed as Office Holders under the Insolvency Act 1986 and that client has remained untraced for a period of five years, we shall pay any such funds to a registered charity. Should our firm cease to practice we shall pay any untraced client funds to a registered charity.
We are committed to providing you with a high quality service that is both efficient and effective, however, should there be any cause for complaint in relation to any aspect of our service please contact either Dermot Coakley or Michael Bowell. We agree to look into any complaint carefully and promptly and do everything reasonable to find a solution to your complaint. If you are still not satisfied after we have investigated your complaint, you can refer your complaint to our professional body. Dermot Coakley and Michael Bowell are authorized by the Institute of Charted Accountants in England and Wales.
We will inform you if we become aware of any conflict of interest in our relationship with you or in our relationship with you and another client, unless we are unable to do so because of our confidentiality obligations. We have safeguards that can be implemented to protect the interests of different clients if a conflict arises. Where conflicts are identified which cannot be managed in a way that protects your interest then we regret that we will be unable to provide further services and may, depending on the circumstances, have to terminate our engagement with you.
Unless we are authorized by you to disclose information on your behalf, we confirm that where you give us confidential information, we shall at all times during and after this engagement keep it confidential, except as required by law, by our insurers, or as provided for in our regulatory, ethical, or other professional pronouncements, or as part of any regulatory review, or in connection with our duties as an Office Holder under the Insolvency Act 1986.
Michael Bowell and Dermot Coakley are licensed to act as insolvency practitioner in the UK by the Institute of Chartered Accountants in England and Wales. Both are bound by the Insolvency Code of Ethics when carrying out all professional work relating to an insolvency appointment.
Any party wishing to make a complaint against either Office Holder in that capacity should do so through the Insolvency Complaints Gateway at the following web address:
i E-mail may be used to enable us to communicate with you. As with other means of delivery this carries with it the risk of inadvertent misdirection or non-delivery. It is the responsibility of the recipient to carry out a virus check on any attachments received.
ii As Internet communications are capable of data corruption we do not accept any responsibility for changes made to such communications after their despatch. For this reason it may be inappropriate to rely on advice contained in an e-mail without obtaining written confirmation of it. All risks connected with sending commercially sensitive information relating to your business are borne by you and are not our responsibility. If you do not accept this risk, you should notify us in writing that e-mail is not an acceptable means of communication.
You have a legal responsibility to retain documents and records relevant to that of your financial affairs. During the course of our work we may collect information from you and others relevant to your tax and financial affairs. We will return any original documents to you upon request, unless the documents are required by law to be retained by us.
You are required by law to retain documents as follows:
Individuals, trustees and partnerships:
Companies, limited liability partnerships and other corporate entities:
Our document retention policy is to destroy client documents at the appropriate time, including any documents which legally belong to you, when our statutory obligations to keep the records have ceased, unless we are of the opinion that such documents may be of continuing significance.
Should you wish us to retain any documents for a longer period, you must inform us of this fact in writing. This does not apply to our own working papers which will be kept according to statutory requirements.
These terms and the terms set out in the engagement letter or any other agreement shall be governed by, and construed in accordance with, English law. The Courts of England shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the engagement letter and any matter arising from it. Each party irrevocably waives any right it may have to object to an action being brought in those Courts, to claim that the action has been brought in an inconvenient forum, or to claim that those Courts do not have jurisdiction.
It is the policy of MBICL to charge and recover all actual disbursements incurred and full records of those disbursements are retained and are available together with an explanation at any time.
Expenses are charged out at the following rates:
- Travel - Motor Vehicles are charged at 65p per mile and all other forms of travel are charged at actual cost
- Record Storage - 40p per week per archive box, £6.50 per box destruction
- Photocopying/Facsimiles – 10p per sheet
- Any other expenses at actual cost
MBICL’s Standard Charge Out Rates per hour
This information is provided to our clients together with our Letter of Engagement on each assignment.
Charges out rates are reviewed annually effective from 1 January each year.
Subject to the following provision, our engagement may be terminated by either party prior to the appointment of an Office Holder under the Insolvency Act 1986 by the giving of 14 days’ notice in writing to the other party, provided that the engagement may be terminated with immediate effect should you fail to cooperate with us in the carrying out of our work or if we are of the opinion that you have been in breach of any laws or other relevant regulations, including the provision by you of misleading information to HM Revenue & Customs. Unless otherwise agreed, our work will begin when we receive implicit or explicit acceptance of the terms of our engagement letter.
These terms and conditions supersede any other existing terms and conditions relating to the same period.
Our engagement will commence upon execution of the engagement letter. Once it has been agreed, the engagement letter will remain effective until it is replaced or terminated in accordance with the preceding provisions.
Insolvency-Online and its associated web-sites are trading styles of MBI Coakley Limited which is a limited company registered in England and Wales [Number: 6513631] whose registered office is Salisbury House, London Wall, London EC2M 5PS.