Keeping advocacy in the family

The Law Society's practice advice service offers guidance on a range of subjects

Q I am acting for a defendant in a civil matter and the claimant is a litigant in person who intends to bring her sister along to the trial to act as her advocate.

Is she able to do this?A Yes, but only with the express permission of the court (see the Courts and Legal Services Act 1990, section 27).

The litigant in person must apply for permission from the court for her sister to appear as her proposed advocate.

The application should be made at the first hearing on notice and it is the litigant in person, not the proposed advocate, who must explain to the court why permission should be granted.

It appears that the court will be more inclined to allow the sister of the litigant in person to appear on her behalf than it would an 'unconnected' person (see D v S (Rights of Audience) [1997] 1 FLR 724 and Clarkson v Gilbert [2000] 2 FLR 839).

Such an advocate is usually referred to as a McKenzie friend (see McKenzie v McKenzie [1971], p33).

Q I am a solicitor with a practising certificate.

Does this mean that I am also regarded as a notary public?A No.

If you wish to qualify as a notary contact the Court of Faculties, Faculty Office, 1 The Sanctuary, London SW1P 3JT, tel: 020 7222 5381.

Q I have been approached to act in the administration of an estate in which there appear to be no living relatives.

What should I do? A Immediately contact the Treasury Solicitor, Bona Vacantia Section, Queen Anne's Chambers, 28 Broadway, London SW1H 9JX, tel: 020 7210 3000.

Do not spend time or money on searches, as the Treasury Solicitor is responsible for searching for relatives of the deceased, and may not be able to reimburse you.

Relatives traced by the Treasury Solicitor may be unwilling to pay for extensive work done before they were found.

See the Probate Practitioners Handbook (3rd edition) available from the Law Society bookshop, tel: 020 7320 5640.

This procedure is to be followed if there are no living relatives.

If there are beneficiaries who cannot be traced, see the Probate Practitioners Handbook, p192.

Q Why is it so important in contentious matters that my client signs and returns a copy of the client care letter?A You should ensure that in contentious matters you hold a terms of business letter signed by the client because the practical effect of Civil Procedure Rule 48(8) is that without such a signed letter you cannot recover any more from the client than he could recover from the other side.

Q Can I use a conditional fee agreement in housing disrepair cases?A Yes.

Section 58A of the Courts and Legal Services Act 1990, introduced by section 27 of the Access to Justice Act 1999, allows proceedings under section 82 of the Environmental Protection Act 1990 to be prosecuted under a conditional fee agreement, although they cannot provide for a success fee.

Section 82 cases are statutory nuisance cases and this criminal provision relates to housing disrepair cases.

Q Solicitors at my former firm received free newsletters from the Law Society.

I have now changed firms.

How can I receive newsletters in specific areas of law?A The Law Society's policy advisers produce several free newsletters such as: Conveyancing in Focus, Inside Track (civil litigation), Dispatch (legal aid), Criminal Practitioners Newsletter.

Solicitors registered with the Society's registration business unit as dealing with specific areas of law will automatically receive any newsletter produced in that area.

Solicitors are able to register as dealing with different areas of law when they renew their practising certificates annually or by contacting the unit, tel: 0870 606 2555.

Q Can a solicitor sign the contract for sale in a conveyancing transaction on behalf of a client?A Suleman v Shahsavari [1989] 2 ALL ER 460 confirmed that a solicitor needs his client's express authority to sign the contract on behalf of the client.

Unless the solicitor holds a valid power of attorney it is recommended that such an authority be obtained from the client in writing, the client previously having been informed of the legal consequences of giving such authority, including that the signature implies authority to proceed to exchange, and exchange creates a binding contract.

A solicitor should never sign a contract on behalf of a client without being certain that the client accepts all the terms of the contract.

Particular care should be taken when there are joint purchasers or co-owners involved.

It is recommended that express authority is obtained from each party and that the solicitor ensures that each party understands the legal consequences of the authority and accepts the terms of the contract.

Failure to obtain authority may render the solicitor liable in damages for breach of warranty of authority (see the Law Society's Conveyancing Handbook 2002, C.2.3, p316).

This column is compiled by the Law Society's practice advice service, tel: 0870 606 2522.

Send comments relating to the questions 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 it 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