1.1 Who should read this practice note?
Solicitors who enter into contracts with clients:
- on their business premises
- away from the solicitor's own place of business, or following discussions that take place away from their own place of business
- at a distance as part of an organised distance sales or service-provision scheme
1.2 What is the issue?
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (the regulations) come into force on 13 June 2014. They regulate most contracts made between a "trader" and a "consumer".
The regulations are likely to apply to a wide range of contracts made between solicitors (as traders) and their clients (as consumers). Whether they apply will depend on the nature of the client and the circumstances in which the contract was made.
For contracts entered into on or after 13 June 2014, the regulations supersede two previous sets of regulations:
- The Consumer Protection (Distance Selling) Regulations 2000
- The Cancellation of Contracts made in a Consumer's Home or Place of Work etc Regulations 2008
This practice note explains when the regulations will apply to conracts between solicitors and their clients, and explains the consequences.
This note covers the key issues for solicitors, but it doesn't cover the whole of the regulations. You should read the regulations to ensure that you comply with the relevant requirements.
2 Situations in which the regulations apply
The regulations apply if the contract is made in one of three situations:
- distance selling
Where you make the contract will change the sort of contract it is for the purposes of the regulations. Regulation 5 defines each type of contract.
2.1 On-premises contracts
An on-premises contract is a contract between you and your client which is not an off-premises contract or a distance contract.
This definition is very wide in scope. Most of the contracts you conclude with your clients at your place of business where your clients are individuals will be on-premises contracts.
2.2 Off-premises contracts
A contract between you and your client will be off-premises if one of the following is true:
- it is concluded in the simultaneous physical presence of you and your client in a place which is not your business premises
- an offer was made by your client in the simultaneous physical presence of you and your client, in a place which is not your business premises
- it is concluded on your business premises or through any means of distance communication immediately after your client was personally and individually addressed in a place which is not your business premises
- it is concluded during an excursion organised by you with the aim or effect of promoting and selling goods or services to your client
It may be difficult to determine when and where a contract was made, if you discuss the contract with your client in your business office, either face to face or on the telephone, and then continue the discussions during an off-premises visit. The answer will depend on the facts of the particular case.
In other cases, it will be clear at which point the contract came into effect. For example, if a client telephones you, and you run through the terms of the agreement and inform them of costs, then send them a client care letter with their agreement prior to any visit or excursion, then the situation would be unlikely to fall within the definition of an off-premises contract.
However, you must exercise caution if you make a subsequent agreement during a follow-up visit: this may be a new contract, and caught by the definition.
A contract may fall within the definition of an off-premises contract even if it is made in your office, if it is made after an offer of the relevant kind made by the client.
For example, if you visit a client at home, the client offers to engage you to carry out legal work, and you then accept the offer by telephoning the client from your office the following day, this would be considered to be an off-premises contract.
Contracts agreed on excursions are only considered to be off-premises contracts if you organised the outing. For example, if a contract is made over dinner at a restaurant, and the meal was organised by your client. However point (1) above may still apply and therefore the contract may still be off-premises.
The precise scope of what is defined as an excursion is currently unclear. Until it is clarified by case law, you should assume that this section would apply to any situation where you arrange to meet a client away from your business premises.
Therefore, if you arrange to meet a client in hospital, you should assume that this falls within this section, even though the meeting would not be social in nature and you and your client would not go anywhere or do anything together.
Our practice note on the cancellation of contracts covers the regulations that apply to contracts prior to 13 June 2014.
2.3 Distance contracts
Distance contracts are contracts concluded under an organised distance sales or service-provision scheme where you and your client are not both physically present.
To be a distance contract, the agreement must be made by exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded.
The terms "organised distance sales" and "service-provision scheme" are not defined in the regulations. However, they are likely to refer to services like mail order, online sales and telesales.
3 Key definitions: regulations 4 and 5
There are a number of key definitions within regulation 4 and regulation 5 which you should be aware of:
- A trader is defined in regulation 4 as 'a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf'. A solicitor entering into a contract with a client is a 'trader' within the meaning of the regulations.
- A consumer is defined in regulation 4 as 'an individual acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession'. Many clients - but not all - will be considered to be consumers under the regulations.
- Digital content is defined in regulation 5 as 'data which are produced and supplied in digital form'.
- A durable medium is defined in regulation 5 as 'paper or email, or any other medium that:
- allows information to be addressed personally to the recipient,
- enables the recipient to store the information in a way accessible for future reference for a period that is long enough for the purposes of the information, and
- allows the unchanged reproduction of the information stored'.
- A service contract is defined in regulation 5 as a 'contract, other than a sales contract, under which a trader supplies or agreed to supply a service to a consumer and the consumer pays or agrees to pay the price'.
4 Exemptions to the regulations
Regulation 6 sets out a number of contracts that fall outside the regulatons.Contracts that wholly consist of exempt activities aren't subject to the regulations. Briefly, the exemptions relate to:
- banking, credit, insurance, personal pension, investment or payment services
- the creation of or rights in immovable property
- residential rental agreements
- construction of new or substantially new buildings
- foodstuffs, beverages or goods intended for general household consumption on regular basis
- package holidays, tours or travel
- certain aspects of timeshare, long-term holiday product, resale and exchange contracts
- further exemptions listed in regulation 6(2)
These exemptions are not likely to be relevant to contracts between you and your clients. However, you must refer to regulation 6 for the full list of exempt contracts.
5 Legal aid
The Ministry of Justice has clarified the position of legal aid contracts under these regulations.
Where legal aid services are provided free of charge to the client and no payment is made by the client to the solicitor, the regulations will not apply. This is because there is no 'service contract' as defined under the regulations.
In legal aid cases where the client is required to make a payment towards the service they receive, payment is not made by the client to the solicitor, but rather to the Lord Chancellor in accordance with statutory obligations under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (section 23 - Payment for Services).
The Ministry of Justice confirmed that for this reason, legal aid cases involving payment by the client would also fall outside the remit of the regulations.
6 Information requirements
The regulations say that you must provide certain pieces of information to your clients.
The information requirements apply to all contracts, regardless of whether they are concluded on premises, off premises or via distance selling. However, there are some exemptions:
- the supply of medicinal products or other products by a healthcare profession under certain circumstances (regulation 7(2)(a))
- contracts in so far as they relate to passenger transport services (regulation 7(3)(a))
- off premises contracts under which the payment to be made is less than £42 (regulation 7(4)(a))
Much of the information that solicitors are required to provide under the regulations is likely to be included in your client care letters and terms of business.
The information required will vary depending on the type of contract. Therefore, you should consider whether you are likely to conclude contracts in different circumstances when considering if additional information needs to be provided in standard client care letters.
How the information is provided depends on the type of contact. This is discussed in more detail below. However, for the information to have been 'made available', the consumer must reasonably know how to access it.
You must give your client the information in a clear and comprehensible format before they enter into the contract.
Every contract to which the regulations apply will be treated as including a term that the trader has complied with the regulations regarding the provision of information. Therefore, failure to provide this information will be a breach of contract (regulation 18).
6.1 Information requirements for on-premises contracts
The regulations require that consumers must be given certain information when they enter into an on-premises contract. That information is set out in schedule 1 to the regulations.
To ensure you comply with the regulations, before a client is bound by a contract, you must provide the following information, if it isn't apparent from the context:
- The main characteristics of the goods or services. This may not always be readily apparent in relation to solicitors' services. However, you are required under the Code of Conduct to ensure that clients are in a position to make informed decisions about their matter. This means that you need to make sure that they understand the characteristics of your service (outcome 1.12).
- Your identity (such as your trading name), geographical address and telephone number. Your name and address may be obvious for clients who visit your premises. However, you must also tell your clients a telephone number for further contact.
- The total price of the goods or services, including all taxes. If you can't reasonably calculate the price in advance, as with many legal matters, then you should give information on how the price will be calculated. The Code of Conduct also requires you to provide best possible information about the likely overall cost of their matter (outcome 1.13).
- Information on any additional delivery charges. You should inform your client if these may be payable, even if you can't reasonably calculate the charges in advance
- Arrangements for payment, delivery or performance and the time that you will take to deliver the goods or perform services, where applicable. This might include setting out what the next steps in the matter might be, estimated timescales and how frequently you will get in contact with your client.
- Your complaint handling policy. You are already required to provide information about how to make a complaint. More information on this is available in our client care information practice note.
- A reminder that the goods you sell must be in conformity with the contract, in the case of sales contracts. For example, a statement that the goods should be of satisfactory quality and be fit for purpose as required by consumer rights law
- Information on after sales services or guarantees, including any conditions, if provided, and where applicable.
- The length of the contract if fixed or, if the contract is of indeterminate duration or will be automatically extended, the conditions for cancelling that contract. Most retainers involving legal proceedings will be of an indeterminate duration, so you will need to provide information on how a client can end the retainer. We provide guidance on this in paragraph 5.2.7 of our client care information practice note.
If you are providing digital content, you must provide the following information:
- digital content functionality - for example, information about:
- file type
- internet connection
- geographical restrictions
- any additional purchases required
- digital content compatibility
You don't need to provide the above information if contract involves a day-to-day transaction, where the consumer pays and gets the goods straight away - for example, if they buy a paper or a take-away coffee.
The regulations don't specify how this information has to be made available - the important thing is that consumers have this information given or made available to them.
While the information might be provided in a variety of ways - for example, via notices or leaflets - it may be easiest to provide it in the client care letter.
6.2 Information requirements for off-premises and distance contracts
The regulations also require that consumers are provided with certain information when they enter into an off-premises contract or a distance contract (Schedule 2 of the regulations).
Some of this information is the same as for on-premises contracts. However, you must also provide the following information before your client is bound by a contract:
- i. Your telephone number, fax number and email address, where applicable.
- ii. The identity and geographical address of any third-party trader if you are acting on their behalf.
- iii. The address which complaints should be sent to, if it is different to the address supplied for the business or the third-party trader you are acting on behalf of.
- iv. If the contract is of an indeterminate length or is a subscription, the monthly costs (where the contract is charged at a fixed rate) or billing period costs. If you have an ongoing retainer, you should give estimates at each stage.
- v. The costs associated with using distance communication to conclude the contract if they are above basic rate for instance where the contract is concluded via a telephone numbers which has a higher rate charge.
- vi. Information on the conditions, time limits and procedure for exercising a right to cancel, if there is one (see section 8 for more information).
- vii. Costs of returning the goods in the case of cancellation, where applicable.
- viii. A notification that if the client expressly asks you to start work within the cancellation period, they will be responsible for paying you the reasonable costs of the service (see section 8 for more information).
- ix.A notification if there are no cancellation rights for specific goods, services or digital content, or if there are circumstances in which clients will lose their right to cancel. For instance, this would be required if the client asks you to start work in the cancellation period and you have completed the retainer (see section 8 for more information).
- x. Information on how your client can obtain a copy of the Solicitors Handbook - for example by providing a link to the SRA's website.
- xi.The minimum duration of the clients obligation under a contract, if applicable.
- xii. Information on any deposits or other financial guarantees the client is required to pay and any applicable conditions.
- xiii. A notification that the Legal Ombudsman handles complaints about lawyers, and the details for contacting them. You are, in any case, required to provide this information in writing under outcome 1.10.
6.2.1 Providing the information in an off-premises contract
If this information is given in relation to an off-premises contract, it must be given on paper or, if the consumer agrees, on another durable medium.
A durable medium is defined by regulation 5 as paper, email or other medium that:
- Allows the information to be addressed personally to the recipient.
- Enables the recipient to store the information in a way that is accessible for future reference for a period long enough for the purpose of the information. For instance, the information could be held in the client's personal account area of your website, which he can access by logging in.
- Allows unchanged reproduction of this information so that the information does not change due to subsequent changes in your terms.
If the right to cancel exists then you must give the client the cancellation form as set out in part B of schedule 3 of the regulations. You should provide it in a durable medium, in a legible form.
The information in vi, vii and viii can be provided via the model instructions for cancellation set out in part A of schedule 3 of the regulations.
If you don't inform clients of additional delivery charges or the information in iv or vii, then they will not be liable for the costs referred to in those paragraphs.
6.2.2 Confirming an off-premises contract
If you are preparing an off-premises contract, you must provide the client with a copy of the signed contract, or confirmation of the contract, on paper (or other durable medium, if the client agrees).
This must include all of the information which is set out in the above paragraphs, unless you have given it to the client in a durable medium prior to the conclusion of the contract.
The copy or confirmation should be provided within a reasonable period after the conclusion of the contract, and:
- not later than the time of delivery of goods
- before the performance begins of any service supplied under the contract
There is an exemption from providing this information in relation to repair of maintenance contracts. which is set out in detail in regulation 11.
6.2.3 Providing the information in a distance contract
For the client to be bound by the contract, you must provide the information detailed above in a format appropriate to the means of the distance communication.
If the right to cancel exists then you must give or make available a cancellation form to the client as set out in part B of schedule 3 of the regulations. The information in vi, vii and viii can be provided via the model instructions for cancellation set out in part A of schedule 3 of the regulations.
If the means of distance communication allows limited space or time then you can provide some information by a different means. However, this does not apply in relation to information about:
- the characteristics of the good or services
- your identity
- the price of the good or services
- additional delivery charges
- the right to cancel where applicable
- the duration of the contract or, if it is indeterminate or automatically renewed, how to cancel
You must supply this information in a format appropriate to the means of the distance communication.
For instance, if you were forming a contract over the telephone, you would need to supply the information described above over the phone, but the other information listed under 6.1 and 6.2 might be provided via an email.
If your client isn't informed of additional delivery charges or the information in iv or vii, they will not be liable for the costs referred to in those paragraphs.
Any information given to a client that is required by the regulations becomes part of the contract. Changes in that information either before or during the contract are only effective with the express agreement of you and the client.
If you make a telephone call with a view to concluding a distance contract, you must tell the potential client three things at the beginning of the conversation:
- the firm's identity
- the identity of the firm you are making the call on behalf of, if applicable
- the commercial purpose of the call
6.2.4 Providing the information in a distance contract concluded by electronic means
If a contract places any obligation for a client to pay then directly before a client places an order they must be made aware of the following:
- the main characteristics of the goods or services
- the total price of the goods or services, including all taxes or, if the price cannot be calculated in advance, information on how the price will be calculated.
- the monthly costs (where the contract is charged at a fixed rate) or billing period costs, for contracts of indeterminate length or subscriptions
- additional delivery charges
- the duration of the contract or, if the contract is indeterminate or automatically renewed, how to cancel
- a notification if there is a minimum duration of the client's obligation under a contract
You should ensure that the client acknowledges that placing an order implies an obligation to pay when placing an order.
If the client places an order by clicking a button or similar, it should be labelled clearly with 'obligation to pay' or something similarly unambiguous. If the above does not occur, the client is not bound by the contract.
At the beginning of the process, you should make it clear if there are any delivery restrictions and which means of payment are accepted.
6.2.5 Confirming a distance contract
You must give the client confirmation of the contract in a durable medium once they have agreed to a distance contract. This might be via a client care letter. You must include all the information set out above unless you have previously provided it in a durable medium.
The copy or confirmation should be provided within a reasonable after the conclusion of the contract and
- not later the time of delivery of goods
- before the performance begins of any service supplied under the contract
Where the contract is for the supply of digital media - for example, a download - and the client has consented to that the supply can begin before the end of the cooling off period, the confirmation should include confirmation of the consent and acknowledgment that they lose the right to cancel (regulation 16).
6.2.6 Burden of proof
Generally, if there is a dispute, you, as the trader, will have to prove that you have complied with the requirements to provide information relating to off-premises and distance contracts set out in part 2 of the regulations. However, this is not the case in relation to an offence under regulation 19 or court orders.
7 Criminal offences
Regulation 19 makes it an offence to fail to inform consumers of their right to cancel off-premises contracts.
The offence is punishable on summary conviction by a fine of up to level 5 on the standard scale.
Regulation 20 provides a due diligence defence, if you can show that the offence occurred due to one of the following:
- the act or default of another
- reliance on information given by another
You must also be able to show that you have taken all reasonable precautions and exercised all due diligence to prevent the commission of the offence.
If the offence has been committed by an officer of a corporate body, the officer is also guilty of the offence and liable to prosecution and punishment, if one of the following is true:
- they consented to or connived in committing the offence
- the offence is attributable to any neglect on their part
Regulation 25 makes it an offence to intentionally obstruct an investigation by authorised officers into breaches of the regulations, or to knowingly make a false statement to an authorised officer.
However, the regulations do not authorise officers to inspect or take possession of privileged material. If you are asked to produce any such material by an authorised officer, you are not required by the regulations to produce it (Regulation 24).
8 Right to cancel
This section only applies to distance and off-premises contracts.
If your client has agreed to a distance or off-premises contract, they have a right to cancel it without giving any reason or incurring any liability during the cancellation period.
There are a few exceptions to this, and although these are unlikely to apply to most contracts between solicitors and their clients, you should refer to regulation 29(1) to check these.
In most cases where the contract is for a service or a contract for the supply of digital content which is not supplied on a tangible medium, the cancellation period is 14 days starting the day after the date that the contract is entered into (regulation 30(2)).
8.1 Exclusions: regulations 27 and 28
Regulation 28 sets out a number of circumstances where the right to cancel is excluded. As a brief summary, the exemptions relate to:
- goods or services which vary in price, dependent on market fluctuations
- goods personalised or made to consumer's specifications
- goods liable to deteriorate or expire rapidly
- some alcoholic drinks
- urgent repairs or maintenance
- newspapers or magazines (but not subscription contracts)
- public auctions
- accommodation, transport of goods, vehicle rental services, catering or leisure activities if for a specific date or period of performance
There are further exemptions listed in regulation 27(2) and (3), including off-premises contracts where the client payment is not more than £42.
In most cases, these exemptions are unlikely to be relevant to contracts between you and your clients. However you must refer to regulation 27 and regulation 28 for the full list of exempt contracts.
8.2 Providing notice
As mentioned in section 6.2, you must provide your client with information regarding the conditions, time limit and procedures to enable the consumer to exercise that right (schedule 2, paragraph l).
8.3 Failing to provide notice: regulation 31
If you don't give your client the required information regarding their right to cancel, and the time limit and procedures for cancelling, then the cancellation period will be extended beyond the usual 14-day period:
- If you give your client the relevant information within a period of 12 months after the contract is entered into, the cancellation period ends 14 days after your client receives the information.
- If you don't give this information to your client at all, the cancellation period ends at the end of 12 months and 14 days.
This means that if you don't give your client a notice of their right to cancel, then you will not be able to enforce the contract against them until you either give them the relevant information or a period of 12 months and 14 days has lapsed.
For instance, you won't be able to sue under the contract for fees for work done until the cancellation period has lapsed. However, the contract won't be void, and will still be enforceable against you by the client.
8.4 Withdrawing or cancelling the contract: regulation 32
Your client must tell you if they choose to withdraw an offer to enter into a distance or off-premises contract.
To cancel a contract your client must inform you of their decision to cancel by doing one of the following:
If you give your client the option of filling in and submitting a cancellation form or other statement on your website, they don't have to use it, but if they do you must acknowledge receipt of the cancellation on a durable medium without delay.
If your client sends you a communication cancelling the contract before the end of the cancellation period, it falls within the cancellation period if it is sent before the end of that period.
If a dispute arises, the burden rests on your client to show they cancelled the contract in the relevant period. However, in order to avoid any disputes, you may wish to check with clients, shortly after the end of the cancellation period, that they have not exercised their right to cancel.
8.5 Effect of withdrawal or cancellation: regulations 33 and 34
Cancelling a contract within the relevant period ends the obligations of both parties to the contract.
If this happens, you must reimburse all payments to your client, using the same means of payment (unless expressly agreed otherwise by your client), without undue delay and not later than 14 days after the day on which you were informed of your client's decision to withdraw an offer or cancel the contract.
You must not charge your client a fee for any reimbursement.
8.6 Dealing with urgent requests: regulation 36
If your client wants you to do work urgently, they can ask you to commence work before the cancellation period expires. However, you must not provide a service before the end of the cancellation period unless your client has made an express request (on a durable medium, if it is for an off-premises contract).
This request means the client must pay for services provided such as the instructions, even if the contract is later cancelled. The payment must be:
- based on the supply of the service for the period for which it is supplied, ending when you are notified of your client's decision to cancel
- in proportion to what has been supplied in comparison with the full contracted service.
The payment amount must be calculated on the basis of the total agreed price. If the total agreed price is excessive, on the basis of the market value of the service, determined be comparing prices for equivalent services supplied by other traders.
However, your client won't bear any cost during the cancellation period if one of the following is true:
- you do not provide your client with information on the right to cancel (schedule 2 paragraph l)
- you do not provide your client with information on payment of reasonable costs (schedule 2 paragraph n)
- the service is not supplied in response to a request to commence work during the cancellation period
Your client loses their right to cancel the service contract if the service has been fully performed at their request and they acknowledged that they would lose their right to cancel once the contract had been completed.
8.7 Digital content: regulation 37
You must not begin to supply digital content which isn't on a tangible medium before the end of the cancellation period unless your client does two things:
- provides express consent
- acknowledges that the right to cancel the contract will be lost
If your client provides consent and acknowledgement, and you begin to provide digital content before the end of the cancellation period, they lose their right to cancel.
Your client will bear no cost for supply of digital content if one of the following is true:
- They haven't given express consent to begin before the end of the cancellation period.
- They gave consent but didn't acknowledge the right to cancel would be lost.
- You failed to provide the required confirmation as set out in regulation 12(5) or regulation 16(3).
8.8 Ancillary contracts: regulation 38
If your client withdraws an offer or cancels a contract, any ancillary contracts are automatically terminated without any costs to your client.
There are a few exclusions to this. Although these are unlikely to apply to most contracts between solicitors and their clients, you should refer to regulation 38(1) to confirm these.
An ancillary contract in this context means a contract by which your client acquires goods or services related to the main contract, where they are provided by either:
- a third party on the basis of an arrangement between yourself and the third party
9 More information
9.1 Legal and other requirements
9.2 Further products and support
9.2.1 Practice Advice Service
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 09:00 to 17:00 on weekdays or by email on firstname.lastname@example.org.
9.2.2 Law Society Consulting
If you require further support, Law Society Consulting can help. We offer expert and confidential support and guidance, including face-to-face consultancy on risk and compliance. Please contact us on 020 7316 5655, or email email@example.com.
Find out more about our consultancy services
This practice note has been updated to reflect the Ministry of Justice's guidance that the regulations do not apply to legal aid contracts - see section 5 for further information.