Criminal solicitors gear up for mile-high club

In the first of a series, the Law Society's practice advice service answers some frequently asked questions from practitionersQ What is the difference between a contingency fee agreement and a conditional fee agreement?A The term 'contingency fee' is generic in that it covers all agreements where the fee - whether fixed, or calculated either as a percentage of the proceeds or otherwise - is payable only in the event of success.

However, contingency fee agreements are historically known to be agreements where the fee is calculated as a percentage of the proceeds recovered.

Such contingency fee agreements are only permissible in non-contentious matters (see rule 8, The Guide to the Professional Conduct of Solicitors, eighth edition, p278).A conditional fee agreement is a statutory species of contingency fee, and is governed by the Conditional Fee Agreements Regulations 2000.

Conditional fee agreements are agreements where the fee charged depends on whether the case is won or lost.

They are commonly known as 'no win, no fee' agreements.

The fee may consist of basic or reduced costs or basic costs plus a success fee of anything up to 100% of the basic costs, although the wording of section 27 of the Access to Justice Act 1999 is wide, and covers any arrangement where certain fees are payable only in specified circumstances.If you are considering entering into a conditional fee agreement, you should familiarise yourself with: section 58 of the Courts and Legal Services Act 1990 (as amended by section 27 of the Access to Justice Act 1999); the Conditional Fee Agreement Regulations 2000 (SI 2000/ 692); the Civil Procedure Costs Rules 2000 (SI 2000/131 L11); the practice direction on costs supplementing parts 43 to 48 of the Civil Procedure Rules.General guidance on contingency fee agreements and conditional fee agreements is also available in our booklet called Payments by Results which you can find at www.lawsociety.org.uk (click on the A-Z index and you will find the booklet at 'P').Furthermore, the Law Society has produced a leaflet called Conditional Fees: what they are and how they can help you for the benefit of your clients, which you can purchase in packs (tel: 020 7320 5640).

Q My client's case has been sent straight to the Crown Court under section 51 of the Crime and Disorder Act 1998.

Is it correct that I can represent my client at any preliminary hearings listed in the Crown Court?A Where the purpose of the preliminary hearing is to deal with outstanding bail issues, set a timetable for the service of the prosecution case, or set a date for the plea and directions hearing - and this hearing takes place before the prosecution has completed service of its case - then any person who has rights of audience in the magistrates' court may appear in these hearings in the Crown Court unrobed.See the practice direction given by the senior presiding judge for England and Wales on 22 December 1998 for additional details.

The practice direction is available from the Law Society library's, document delivery service at a small cost (tel: 020 7320 5920).

Q I am having difficulty in tracing the beneficiary of an estate I am administering.

How do I deal with this problem?A If beneficiaries cannot be traced there are several course of action available:l Statutory advertisements and searches should be made as soon as possible as they may provide helpful information.

See section 27 of the Trustee Act 1925;l Assistance from the court may be sought.

For example, it is possible to obtain a Benjamin order to allow the estate to be distributed on the basis of certain assumptions;l It may be possible for the Department of Social Security to forward a letter to the beneficiary.

(Newcastle Benefits Directorate, DSS Central Office, Benton Park Road, Newcastle upon Tyne, NE98 1YX);l Genealogists may be instructed to trace the beneficiaries.

For additional guidance, see the Probate Practitioner's Handbook, p192.

Q Does the Law Society set a recommended mileage rate?A No.

However, the Legal Services Commission (LSC) has prescribed mileage rates for publicly funded work which could be used as a guideline.

Since 1 April 2001, the LSC mileage rate for civil work is 45p per mile and the criminal contract rate for work done in the magistrates' court is 36p per mile.

Crown Court mileage rates are not prescribed.

It is proposed that as of 1 April 2002, criminal rates will be bought in line with civil work.

Additional information on LSC mileage rates has been published in past Gazettes (see [2001] Gazette, 21 June, pp50-51 and [2001] Gazette, 1 November, p3).Nature of enquiriesThe areas the practice advice service (PAS) is able to deal with include: problems of legal practice and procedure; solicitors' costs; the policy and practice of the Law Society; multi-party actions.Multi-party actions information service The multi-party actions information service (MPAIS) provides details on past and present multi-party actions.

The service records individual solicitors' name, firm details, details of court orders and any other relevant information about the action.

MPAIS is an information service maintained by solicitors at PAS.Making contactPAS and MPAIS may be contacted by fax, e-mail or telephone between 9am and 5pm weekdays.

Tel: 0870 606 2522; fax: 0207 316 5541; e-mail:lib-pas@lawsociety.org.ukMost telephone enquiries can be answered immediately.l Frequently Asked Questions is compiled by the Law Society's practice advice service, which is a dedicated service for members of the Law Society.

It is staffed by solicitors working from many sources, including a database of Law Society policy and practice and drawing on the experience of colleagues in other departments of the Society.

Solicitors should send any comments relating to the questions to Nasrin Master, Practice Advice Service Manager, the Law Society, 113 Chancery Lane, London WC2A 1PL.