In a continuing series, the Law Society’s practice advice service offers guidance on a range of issues


Q How much should I charge for swearing an oath and is this charge mandatory?



A Section 2 of The Commissioners for Oaths (Authorised Persons) (Fees) Order 1993 states that the following fees shall be charged: £5 for taking an affidavit, declaration or affirmation, for each person making the same and, in addition, £2 for each exhibit or schedule referred to. Please see the Law Society’s Guide to the Execution of Documents, A Practical Guide available from the Law Society bookshop (tel: 020 7320 5640).



Q I act for the purchaser in a conveyancing transaction which has just completed. The seller’s solicitor says he has posted the title deeds to me, but it appears that they have become lost in transit. We had agreed to use the Law Society’s Code for Completion by Post. Who is responsible for the cost of replacing the deeds?

A You are. Under paragraph 10(ii)(b) of the Law Society’s Code for Completion by Post, the seller’s solicitor undertakes to send the deeds by first-class post or document exchange to the buyer’s solicitor as soon as possible after completion, and in any event on the same day. This is done at the risk of the buyer’s solicitor.



Q I have issued a gross sum bill to my client. He has now requested a further detailed breakdown. Must I supply this?

A In contentious matters, where a solicitor has issued a gross sum bill, the client may request a detailed breakdown of costs in lieu of the original bill within three months of receiving the bill. This does not apply if the solicitor has issued proceedings for payment of the bill or if the costs are subject to a Contentious Business Agreement (see section 64(2) of the Solicitors Act 1974).



However, you might wish to explain to your client that his request has the dramatic effect of cancelling the original gross sum bill. If, when going through your file, you consider you did not include all of your costs in the original bill, you are free to draw up a bill for the higher amount.



The position differs in non-contentious matters because the client has the right to ask for a remuneration certificate if he is unhappy with the amount charged (see article 4 of the Solicitors (Non-Contentious Business) Remuneration Order 1994). In this case, the solicitor is not obliged to provide a further detailed breakdown after providing a gross sum bill. If the client wishes to receive a further breakdown, the solicitor can make a charge for the further work involved as long as the client is informed in advance of this additional cost.



Q I have been approached by a client to attend a child protection conference. Is there any Law Society guidance to assist me at such a conference?
A
Yes. The family law committee has issued guidance called ‘Attendance of solicitors at child protection conferences’, which can be found on the Law Society website www.lawsociety.org.uk.


Q My client is buying the ground floor flat of a house containing two flats in Newcastle. The freehold of my client’s flat is owned by the lessee of the first floor flat. Similarly, on completion my client will own the freehold of the first floor flat. I was concerned by this situation but I have been told by a local solicitor that this arrangement is recognised by the local land registry. Is this correct?
A
The type of arrangement you describe is known locally as a ‘Tyneside flat’ scheme and is understood to be in common use by practitioners in the Newcastle area in relation to particular properties in north Tyneside that are divided into two flats on a ‘one up, one down’ basis. Since the freehold that your client would be acquiring in the upper flat lies above ground floor level, it would constitute a flying freehold. So, in relation to the acceptability of the arrangements for the purposes of any particular lender that is a member of the Council of Mortgage Lenders, you would need to observe the requirements of the council’s handbook as they apply to flying freeholds.


The Durham (Southfield) office of the Land Registry is the proper office for the north Tyneside area. It will process the registration of the lease of the ground floor flat and the transfer of the freehold to the upper flat in the same way as any other lease or transfer, provided the forms used and the applications lodged comply with the normal registration requirements.



Q Does the Law Society recommend a fee we should charge for certifying copies of documents?
A
No. There are no specific rules that apply to the certification of documents in the same way as there are for the swearing of oaths, affirmations and declarations. It is, therefore, entirely up to you how you charge. You may wish to charge the equivalent of the fee which is prescribed for the swearing of affidavits, declarations and affirmations, which is £5, or you may wish to charge purely on a time basis or other fixed-fee basis. However, your charge should be fair and reasonable in all the circumstances.


Q Has the Law Society produced a precedent living will?
A
No. Living will precedents are available from the Terence Higgins Trust, the Alzheimer’s Society and other charities. Please bear in mind there are many practical problems in the use of these documents which need to be discussed with your client. See the Law Society’s Elderly Client Handbook (3rd Edition), which is available from the Law Society bookshop (tel: 020 7320 5640).


The Mental Capacity Act 2005, which is due to be implemented in October 2007 will give statutory force to ‘living wills’ through the introduction of: advance decisions, advance statements and enduring powers of attorney. The Mental Capacity Act code of practice provides guidance for making and using these powers.



This column is compiled by the Law Society’s practice advice service, tel 0870 606 2522. Comments relating to the questions should be sent to Nasrin Master, Practice Advice Service Manager, The Law Society, 113 Chancery Lane, London, WC2A 1PL. The service endeavours to ensure that the information provided is correct but does not accept liability for error or omission. Readers should bear in mind that this publication is intended for information purposes only and should not act on the basis of the information provided without verifying it first.