Navigation through a sea of law

In a continuing series, the Law Society's practice advice service offers guidance on frequently asked questionsQ I have been asked to administer an oath to a document intended for use in court proceedings in a foreign country.

May I do this?A It depends on the law of that country.

Do not take it for granted that the country concerned will accept the signature of a commissioner authorised to take oaths under the law of England and Wales.

You should suggest that the prospective deponent makes enquiries with his lawyers abroad.

In case of doubt, he can be referred to a notary public whose authority to administer oaths is recognised internationally.

Q In which areas of law is it possible to use a conditional fee agreement?A Section 58A of the Courts and Legal Services Act 1990, as substituted by section 27 of the Access to Justice Act 1999, states that 'the proceedings which cannot be the subject of an enforceable CFA are: (a) criminal proceedings, apart from those under section 82 of the Environmental Protection Act 1990 and, (b) family proceedings'.

The definition of family proceedings can also be found in this section.

The Conditional Fee Agreement Order 2000 allows all such agreements to provide for success fees except for proceedings under section 82 of the Environmental Protection Act 1990 where success fees are not permissible (section 3).

Q When can I start charging interest on unpaid costs?A If the matter is non-contentious, you may charge interest on outstanding costs from one month after delivery of the bill, provided written notice has been given to the client of the right to request a remuneration certificate and of the right to seek assessment of the bill by the court.

If the matter is contentious, you may charge interest - if the right to charge interest has been expressly reserved in the original retainer agreement; or if the client has later agreed to pay it for a contractual consideration; or where you sue the client and claim interest under section 35A of the Supreme Court Act 1981.

See principles 14.10 and 14.11 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition, page 282.

Q May I make an additional charge to my client for petty disbursements such as faxing and photocopying?A The view of the Supreme Court Costs Office is likely to be that the making of copies of documents is part of the solicitors normal overhead expense, and therefore would not normally be remunerated separately.

Even if there is an indication that unusual expenses, such as large amounts of photocopying will be added in addition, they will not normally be allowed, unless there is a specific agreement from the client that these sums are necessary.

Where a transaction is likely to involve substantial telephone work, faxing or photocopying, it should be made clear to the client if such items are to be charged in addition to any indication of costs.

The position is similar for legal aid cases, see Ref: CRIMLA1 (Amended) - 18.12.89 and 30.1.95).

Q The other side has requested that I copy a large number of documents.

Does the Law Society have a recommended rate for photocopying charges?A There are no Law Society guidelines for photocopying charges.

There is a prescribed fee in the County Court which can be used as a guideline, as can the current commercial rate; that is, what is charged in the high street for photocopying.

The court will, if given evidence of commercial photocopying charges, take this into account on assessment when deciding what is a reasonable charge.

The County Court prescribed fee as from1 January 1995 is 25 pence for A4 and A5 and 50 pence for A3 (See SI 1995/2838).

Q I understand that there have been some amendments to the Council of Mortgage Lenders' Handbook, where can I find these?A Amendments were published in the [1999] Gazette, 29 September, 39 and [2000] Gazette, 25 May, 46-47.

Details of the current handbook for England and Wales or the Isle of Man can be obtained from the Council of Mortgage Lenders' Web site at: www.cml.org.uk See practice points, page 41

Q I am acting for the tenant in a transaction and the tenant is required to pay the landlord's costs.

I have just received details of the landlord's costs, which are excessive.

What can I do?A The tenant is not entitled to request a remuneration certificate because he is not the client.

However, the tenant can ask the landlord to request a remuneration certificate although there is no obligation on the landlord to do so.

As a matter of practice, the Law Society will accept an application for a remuneration certificate in such circumstances, but only if the landlord consents.

In appropriate cases, the Society's council would hope that the landlords' solicitors will encourage their clients to give such consent (see Law Society Council statement [1984] Gazette, 19 December, 3556-3557).

If the landlord is unwilling to give such consent, the tenant is entitled to apply to the High Court for assessment of the bill under section 71 of the Solicitors Act 1974.

Detailed guidance on what precautions a tenant's solicitor can take to prevent a dispute arising is contained in the statement by the council.

Q My client has asked for my bill to be assessed.

What do I have to do?A You should advise him to make his own application.

Although you may issue an application to have your own costs assessed, it is inadvisable unless there are unusual circumstances.

Unless the client attends the assessment hearing, or the costs judge certifies that there are special circumstances the court will not make an order for the costs of the assessment proceedings (section 70(9)(a) and (b) of the Solicitors Act 1974).

Also the order made at the hearing will not include an order for payment of the assessed costs by the client, so that if the client does not pay the bill after the assessment you will have to begin separate proceedings for payment.This column is compiled by the Law Society's practice advice service.

Comments relating to the questions should be sent to Nasrin Master, Practice Advice Service Manager, The Law Society, 113 Chancery Lane, London WC2A 1PL