The Legal Profession
If you have acquired a timeshare from a resort, then the chances are that you have come across a timeshare salesman. If now you believe that you were mis-sold your timeshare, or that the timeshare you acquired bears no resemblance to the representation made to you, then of course, you have to concede that the salesman who sold it to you is of questionable standing (if they now want to profit from obtaining you an exit from the very product they sold you). “Ex-timeshare” salesman are popping up in the legal profession at an alarming rate and should warrant extra consideration if you decide to engage with them in obtaining an exit.
The other matter consumers ought to consider is cold calling.
Cold calling is legal under certain circumstances. However, the caller by their very actions is promoting a legal product which ought not to be promoted. In reality, if a consumer has a legal issue and they wish (after just contemplation) to address that issue, they should do so without enticement. To encourage someone to take legal action and/or enter an adventure they did not contemplate before the cold call came, is abundantly mischievous and morally wrong. In any event, the Solicitor’s Regulation Authority discourages its members from acting if cold calling features in the client’s engagement.
How much should a consumer pay for legal services?
The cost of legal services varies from firm to firm and is dependent upon the experience of the legal representative.In any event, it should like many professions be agreed between the parties.The model of a willing buyer and willing seller comes to mind. Any and all consumers are advised to listen to the representation made (make notes if you can) at any meeting and leave that meeting so as to justly consider what has been said, apply the risks and decide whether or not to engage the services of the legal company they sought advice from. To be faced by a salesman who wants you to sign up for an adventure without affording you time to consider is simply wrong, unfair, unreasonable and condemnable.However, the basic formulas are quite simple: Listen, consider, contemplate, check and then instruct.
The fixed fee is a fee which is charged for the service regardless of the service’s actual cost. It involves the provider claiming a fixed amount, regardless of hours spent or the work to be done to fulfil that service.
These fee agreements are generally used when the cost of providing the service cannot be reasonably fixed. In many cases, the issues can vary. The variation does not facilitate a definite and if there is uncertainty (as to the amount of work required) then the most reasonable approach would be to conduct the service at an hourly rate. This will ensure that consumers are only charged for the work done and time spent.
Damages based agreement
This area of charging takes into consideration risk. In some cases, the service provider can look at the initial issue in the case and, if a fee arrangement cannot be achieved, the service provider can opt to financially back the consumer’s case. If this is proposed by the service provider, he will demand that the risk they take is rewarded by an amount of damages awarded.This amount will depend on the level of risk. The smallest consideration is generally 25% and the largest offered is 50%. If significant funding is required, then, of course, those percentage rates could escalate even higher. Consumers have a need to understand that the higher the percentage rate, the more the funding provider sees the risk. In some cases, an independent and early evaluation is a good thing so that the prospects of success can be identified early.In any event, as long as the consumer has been honest, they are at no risk of any adverse cost orders.
Paralegal / Consultancy companies
TTS & Partners operates as a company registered in United Kingdom as a Consultancy practice. Our areas of expertise are the relinquishment of Holiday Ownership products, such as but not limited to; Timeshares, both fixed and floating allocations, Point systems & Fractional Ownership. TTS & Partners does not offer legal advice even on an impartial nature, but at the request of a client we may refer the client to trusted but unaffiliated colleagues / companies within this field of expertise.
When contemplating legal action, the litigants can choose which areas they wish to have that dispute resolved. These areas include arbitration, fast-track courts, multi-track actions, ombudsman, mediation, without prejudices forums etc. Paralegals/Consultants cannot represent consumers in such forums as “fast-track” cases and “multi-track” cases as they are a contentious business. In the event that a TTS & Partners client requires such representation, they will refer the client to a duly accredited industry professional who is on their panel and TTS & Partners will discharge those fees (any fees will be informed in writing 14 days before commencement of action) in support of their client. At the same time, the accredited industry professional will owe a duty of care to the consumer and as such, will carry out the instruction and TTS & Partners will be merely the funding provider/ Mackenzie Friend. Reserved business The Legal Services Board Sections 2 to 7 and Schedule 1 create the Legal Services Board with a duty to promote the regulatory objectives. David Edmonds was appointed the first chair of the Board on 23rd April 2008 and nine members were appointed on 17th July. The members took up a post on 1st September 2008 and the Board became fully operational on 1st January 2010. The Board is to have a Consumer Panel to represent consumers (ss. 8-11). As of July 2008, no date has been fixed for the coming into force of the provisions about the Consumer Panel.Reserved legal activities Section 12 and Schedule 2 define six reserved legal activities:
- Exercise rights of the audience
- Conduct of litigation
- Reserved instrument activities, being certain activities concerning land registration and real property
- Probate activities
- Notarial activities
- Administration of oaths
This list can be amended by an Order in Council of the Chancellor (ss. 24-26).Section 12 then goes on to define, for the purposes of the Act, a legal activity as either a reserved legal activity or as the provision of legal advice, assistance or representation in connection with the application of the law or with any form of resolution of legal disputes. Legal activity does not include acting as a mediator or arbitrator.Only an authorised person or an exempt person can carry out a reserved legal activity (s. 14). It is a crime to carry out a reserved activity otherwise, though it is a defence that the person “did not know, and could not reasonably have been expected to know” that they were committing an offence. It is also an offence to pretend to be authorised (s. 17). An offender can be sentenced on summary conviction to up to six months’ imprisonment and a fine of up to £5,000. If convicted on indictment in the Crown Court, an offender can be sentenced to up to two years imprisonment and an unlimited fine. An unauthorised person who purports to exercise a right of audience commits a contempt of court can also be punished.These provisions came into force on 1st January 2010.
Unfair Contractual Terms
The inclusion of contractual terms is subject to a test (in the courts) so that they are used fairly. In such cases, fairness can generally be achieved by redrafting the term more precisely so that it reflects the practice and current intentions of the supplier. These are generally done if the terms do not read right and do not fully express the interests of the parties or they frustrate the purpose of the terms to the detriment of the contracting parties.
Schedule 2 to the Regulations illustrates the meaning of ‘unfairness’ by listing some types of terms which may be regarded as unfair. The 17 groups of terms covered in Part II correspond to the 17 headings used in paragraph 1 of Schedule 2. The terms listed are not necessarily unfair – it is a grey area not a so-called blacklist. That said terms are under suspicion of unfairness if they either have the same purpose or can produce the same result as terms in the ‘grey’ list. They do not have to have the same form or mechanism.
All the illustrative terms listed in Schedule 2 have the object or effect of altering the position which would exist under the ordinary rules of contract and the general law if the contract were silent. They either protect the supplier from certain sorts of claims ‘in law’, which the consumer might otherwise make or give rights against the consumer that the supplier would not otherwise enjoy.
The OFT’s/court’s starting point in assessing the fairness of a term is, therefore, normally to ask what would be the position for the timeshare consumer if it did not appear in the contract. The principle of freedom of contract can no longer be said to justify using standard terms to take away protection consumers would otherwise enjoy.
The Regulations recognise that contractual small print is in no real sense freely agreed with consumers. Where a term changes the normal position seen by the law, as striking a “fair balance” it is regarded with inquisitive suspicion.
Transparency is also fundamental to fairness. Regulation 7 says that standard terms must use plain and intelligible language. Taking account of the Directive the Regulations implement, this needs to be seen as part of a wider requirement of putting the timeshare consumer into a position where he can make a reasonably informed choice. Thus even though a term would be clear to a lawyer, we will probably conclude that it has the potential for unfairness if it is likely to be unintelligible to normal timeshare consumers and thereby cause detriment, or if it is misleading (in which case its use may also be actionable as an unfair commercial practice).
Moreover, unfair contract terms in guidance 11, timeshare consumers need adequate time to read terms before becoming bound by them, especially lengthy or complex terms, and this can also be a factor in assessing fairness.
Examples of Unfair Terms
One point needs to be particularly stressed, any revised terms should not be seen ‘cleared’ by the OFT for general use. The revisions reflect our assessment of what a court would be likely to consider fair in the particular contract under consideration. Their view and that of others are not binding on the courts, or upon other enforcers, nor does it fetter the freedom of the OFT itself to take future enforcement action in the interests of consumers. They have a statutory duty to consider complaints about any terms brought to our attention, including any terms that have been revised as a result of our actions.