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

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.


Q My client is abroad on business and urgently needs to swear an affidavit for use in court proceedings here. May I send the affidavit to him for swearing abroad?


A Yes. He can swear it before any person who has authority to administer an oath in that place (Commissioners for Oaths Act 1889 section 3(1)). Alternatively, section 6 (as amended) of that Act empowers every British ambassador, envoy, minister, consul and other officials exercising their functions abroad to administer oaths there. (See the Law Society's Guide to Oaths and Affirmations, 2nd edition, available from the Law Society Bookshop, (tel: 020 7320 5640.)


Q In a family matter, with the agreement of my client at the outset, may I charge extra if she is awarded a financial settlement that exceeds her expectations?


A No. This arrangement would constitute a conditional fee agreement, which is prohibited in family matters under section 58A of the Courts and Legal Services Act 1990 as substituted by section 27 of the Access to Justice Act 1999.


Q What is the difference between an interim bill and an interim statute bill?



A Interim bills are simply requests for payments on account of a final bill to be delivered at a later date. It is not possible to sue on this type of bill and a client cannot apply for assessment of it.


Interim bills should be distinguished from interim statute bills. The latter comply with all the requirements of the Solicitors Act 1974 and result in all the consequences that flow from such compliance. The solicitor can sue on them and the client can apply for assessment of them. They are final bills in respect of the work covered and cannot be adjusted at a later date.


Interim statute bills are not widely used and can arise in two ways. Firstly, a natural break, however, the Law Society's advice is not to rely on this ground except in the clearest circumstances (see Chamberlain v Boodle and King [1982] 3 All ER 188 CA for further guidance.)


Interim statue bills arise secondly by agreement with the client. However, practitioners should make it absolutely clear in their retainer letters that they propose to deliver interim statute bills in the event of protracted work. For further information, see the Contentious Costs booklet from the Law Society's Practice Advice Service.


Q I am an in-house solicitor for a local authority and have obtained letters of administration for the estate of a deceased person, as we are creditors. Are we entitled to our expenses?


A Yes. A creditor who obtains a grant may reimburse himself out of the estate for the expense he has been put to in obtaining the grant.


Q I am acting in a litigation matter for a client who no longer has the mental capacity to continue with the proceedings. Should I contact the Public Guardianship Office or the Official Solicitor's office to ensure that the client's interests are protected?



A You should contact the Official Solicitor's office, which provides representation for minors or adults under a disability in County Court or High Court proceedings in England and Wales. Contact tel: 020 7911 7127; www.offsol.demon.co.uk.


The Public Guardianship Office provides property and financial protection services for clients who are not able to manage their financial affairs because of mental incapacity. Contact tel: 0845 330 2900; www.guardianship.gov.uk.


Q I am acting for a buyer in a residential conveyancing transaction. I have just received the contract package from the seller's solicitor and in the covering letter it states that he 'expects such papers to be returned to his firm on request if the transaction does not proceed to exchange'. I have never come across this before. Is it correct?



A Yes, this has been included in the covering letter in case the transaction is aborted. A draft contract, along with the other papers supplied by the seller's solicitor to the buyer's solicitor in the contract package, belong to the seller until contracts are exchanged.


If the transaction is aborted before exchange takes place, the buyer's solicitor should comply with a request for return of those papers made by the seller's solicitor. This is notwithstanding any contrary instructions issued by the buyer to his own solicitor.


For the avoidance of doubt, it is suggested that the seller's solicitor indicates in his covering letter to the buyer's solicitor that he expects such papers to be returned to him on request if the transaction does not proceed to exchange, just as your seller's solicitor has done. (See the Law Society's Conveyancing Handbook, 10th edition, available from the Law Society Bookshop.


This column is compiled by the Law Society's Practice Advice Service, tel: 0870 606 2522. Send comments 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. This publication is intended for information purposes only and solicitors should not act on the basis of the information provided alone, without verifying it first.