An Ohio medical graduate in the 1850s had a truly great idea: “It occurred to me that if I could invent a machine – a gun – which could by its rapidity of fire, enable one man to do as much battle as a hundred, that it would, to a large extent supersede the necessity of large armies, and, consequently, exposure to battle and disease [would] be greatly diminished,” (Dr Richard Jordan Gatling – The Gatling Gun, Wahl & Toppel [1971]).

   Dr Gatling’s multi-barrel gun of 1861 enabled one man to fire 200 bullets a minute and it and its successors have made a major contribution to the mass slaughter typical of modern industrialised warfare since the American Civil War.  Large armies are nowadays required because so many soldiers tend to be mown down that they would otherwise quickly become very small armies. The so-called ‘Gatling gun approach’ of spraying a perceived problem with lots of hot lead, or a less metallic equivalent, is understandably open to criticism because it can create more destruction than the original issue.

   A government bureaucracy does not usually make policy, but is responsible for its implementation. So therein lies the creative opportunity. One of the reasons why the sage Confucius is remembered is because he realised that a truly meritocratic bureaucracy can help stabilise what our flawed leaders so frequently upset – notably the lives of everyone else. When we curse new forms and procedures as a ‘bureaucratic nightmare’ it may or may not be unfair, depending upon whether or not the arbiters of policy are operating from a Confucian or just a confused perspective.

   In my opinion, the Cancellation of Contracts made in a Consumer’s Home or Place of Work (etc) Regulations 2008 (the regulations) is not in the finest Confucian tradition and owes a lot to thought processes after the manner of poor self-deluded Dr Gatling. But as failure to comply with these regulations will result in the relevant contract being unenforceable, and possibly a penalty of up to £5000 being imposed, it is well worth getting this right.

   These important rules that few lawyers have (even) heard of and even fewer abide by affect all ‘traders’. That is probably why many of us have never considered they might apply to us. A trader now apparently embraces anyone who buys and sells. It includes skilled workers who have completed an apprenticeship such as a qualified bricklayers or carpenters. It includes lawyers, accountants and other professional people.

   Buying and selling places our activities within the highly political arena of consumer protection, where the broad sweep of the law takes no account of existing professionalism and far more appropriate and more finely tuned regulation – a ‘consumer’ is the person who we used to call the ‘client’.

   We are all traders for the purpose of these Regulations so long as we enter into a contract: in the consumer’s home (for example, when visiting an elderly will client referred by one of their relatives); at the consumer’s place of work (for example, of a friendly accountant who we are helping with his mother’s probate); at the home of another person (for example, of a carer in the case of a potential deputyship case); or on an ‘excursion’ organised by us away from our own premises (for example, to effect some estate planning in the Law Society meeting rooms in Chancery Lane).

   We must give the consumer a written ‘notice of the right to cancel’ (the notice) their verbal/written contract at the same time as the contract is made. When is that? It’s simple. A short play follows:

  

   Solicitor: I will draft your will for £X.

  

   Client: Thank you. I am very ill.

  

   Solicitor: Now we have to fill in a form.

  

   Client: Forget it I don’t do forms [and so on] I’d rather

             die intestate.

   

We must also give the consumer a seven-day cooling off period during which the wannabe, over eager, client may exercise the right to cancel the contract – should they live so long. The seven days start from the date of receipt of the notice. (Frankly few of my clients get as excited about entering into a contract with me that a cooling off period appears necessary – I suspect it only applies to divorce lawyers. The legal profession as a whole has shown considerable expertise in all aspects of expectations management. Most people now have none.)

   Where the notice is in writing, then it must be incorporated in the same document. It must, in short, form part of our standard terms of business. That is a lot of extra words for a relatively rare event.

   The notice (wherever it is given) must be set out in a ‘separate box’ with the heading ‘notice of the right to cancel’. (This is just so artless). The notice must also be as prominent as any other information supplied, for instance, not ‘small print’. (Drat.)

   The notice must contain the information required by the regulations and a cancellation form provided as a detachable slip for use by the client if they want to cancel.

   Being bound by the Solicitor’s Code of Conduct is not enough. Don’t think you will get away without abiding by these rules as well. Remember, you will (inevitably) be the first victim of the smart arse son of a miser who wants the value of your experience and hard graft without the usual necessity of opening their freeze wrapped wallet to pay for it.

   I would suggest the following, in mitigation of all the above.

   Incorporating this superfluous verbiage in every set of standard terms of engagement would be cumbersome and confusing to unaffected clients. Don’t do it to them.

   Where any fee-earner attends upon a potential client outside the office for the first time, they should make sure than an additional sheet is added and stapled to the standard terms they (should) take with them. This sheet should note at the top (for the avoidance of a stapled addition being treated as ‘not part of’ that to which it is attached): This forms part of our standard terms of business and is supplied in accordance with the regulations. That should do the trick.

   Insert the regulatory opt-out provision for the potential client to sign so you can get on with the work that is needed without waiting seven days or more. Bearing in mind there is inconsistent case law suggesting we must send out drafts within just a few days if someone is elderly or ill – this seems mightily prudent. I only hope they can still sign forms.

   Alternatively, never trade anything. Let’s see how a command economy based on barter really works in practice.

   I illustrate (below) a mock up form in accordance with the regulations for your further delight.

 

This forms part of our standard terms of business and is supplied in accordance with the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008

Notice of the right to cancel

This notice applies to [… client name(s)…] of [… address…].

   You have a right to cancel your contract with [… your firm…] in the matter of _______________ (for example, your will(s)/lasting           power of attorney/other).

   Your matter is being handled by [… for example, solicitor/paralegal’s name(s)].

   This right lasts for seven calendar days starting from the date of receipt of this notice.

   The date of receipt this notice from which this applies is [… insert date].

   Please note in particular:

 

If you wish to cancel your contract, then you must deliver or send (including by electronic mail) this to us at [… your firm and firm address] within seven days of the date of this notice.

Please note that notice of cancellation is deemed to be served upon us as soon as it is posted or otherwise sent to us or in the case of electronic communication from the day it is sent.

If performance of the work we have been asked to provide to you has begun with your written agreement before the end of the cancellation period, then you will be required to pay for those services. If the matter has been substantially completed, for example, by the issuance of a draft will or detailed advice that may be the whole or most of the agreed fee.

You may use the cancellation form provided by us if you wish. However, you are not obliged to use it.

To avoid delays in effecting our service to you, we ask for your authority below to waive the cancellation period so we may proceed without delay. We are unable to commence work within ten days of your receipt of this notice (to allow for postal cancellations to arrive) otherwise.

 

I/We require/do not require [… your firm and firm address…] to commence work immediately and am/are aware that I/we shall be liable to pay for the services delivered accordingly. (Delete as appropriate.)

 

Signed __________________ [… name in capitals]                 Dated __________________

Signed __________________ [… name in capitals]                 Dated __________________

Cancellation form

If you wish to cancel the contract you MUST DO SO IN WRITING and deliver personally or send (which may be by electronic mail) this to the person named below. You may use this form if you want to but you do not have to.

   (Complete, detach and return this form ONLY IF YOU WISH TO CANCEL THE CONTRACT.)

 

To: _______________________________ at [… your firm and firm address]

 

I/We hereby give notice that I/we wish to cancel my/our contract (delete as appropriate) __________________________________ (for example, for wills/other please specify)

 

Signed __________________             [… name in capitals]                 Dated __________________

 

Address ____________________________________

 

Signed __________________             [… name in capitals]                 Dated __________________

 

Address ____________________________________

 

 

David Coldrick is a member of the editorial board and a partner at Wrigleys Solicitors LLP. He can be contacted at david.coldrick@wrigleys.co.uk