In a continuing series, the Law Society's practice advice service offers guidance on a range of issues
Q I am acting for the tenant in a transaction in which my client is required to pay the costs of the landlord's solicitor. I have just received details of these costs, which are excessive. What can I do?
A The tenant is not entitled to ask the landlord's solicitors to obtain a remuneration certificate because he is not their client. However, the tenant can ask the landlord to request a remuneration certificate from his solicitors, although there is no obligation on him 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 Law Society would hope that the landlord's solicitors will encourage their client to give such consent.
If the landlord is unwilling to give consent, the tenant is entitled to apply to the High Court for assessment of the bill under section 71 of the Solicitors Act 1974.
Q 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 traditionally known to be agreements whereby the fee is calculated as a percentage of the proceeds recovered. Such contingency fee agreements are only permissible in non-contentious matters (see practice rule 8, Guide to the Professional Conduct of Solicitors, 1999, eighth edition, p278).
A conditional fee agreement is a statutory species of the contingency fee, and is governed by the Conditional Fee Agreements Regulations 2000.
Conditional fee agreements are agreements where the fee charged depends on whether you win or lose the case. 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 the following, while noting that the regime is subject to imminent reform:
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.
Q Can I represent my client in the Crown Court on committal for sentence?
A The 1972 Practice Direction, 1 ALL ER 608, allows defence solicitors in criminal proceedings to appear in the Crown Court on appeal from the magistrates' court or on committal for sentence in the Crown Court, if the solicitor, or a member of his firm, appeared on behalf of the defendant in the magistrates' court. Solicitors also have a right of audience in civil proceedings which are on appeal from the magistrates' court, if the solicitor, or a member of his firm, appeared in the magistrates' court proceedings.
There are also special exemptions for solicitors practising in Bodmin, Truro and Cornwall.
Q I have been approached to act in the administration of an estate in which there appears to be no living relatives. What should I do?
A If approached about the administration of an estate in which there are apparently no living relatives, you should immediately contact the Treasury Solicitor, Bona Vacantia Section, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS (tel: 020 7210 3000).
Time should not be spent on searches, or costs expended, as the Treasury Solicitor is responsible for searching for relatives of the deceased and may not be able to pay solicitors who have incurred expenditure.
If the Treasury Solicitor traces relatives, they may be unwilling to reimburse costs in respect of extensive work done before they were found. Please see the Law Society's Probate Practitioners Handbook, 4th edition, which is available for purchase from the Law Society bookshop (tel: 020 7320 5640).
Please note this is the procedure to be followed if there are no living relatives. If there are beneficiaries who cannot be traced, please see page 192 of The Probate Practitioners Handbook.
Q Can a solicitor sign the contract for sale in a conveyancing transaction on behalf of a client?
A The case of Suleman v Shahsavari [1989] 2 ALL ER 460, confirmed that a solicitor needs his client's express authority to sign the contract on his behalf.
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, available from the Law Society bookshop (tel: 020 7320 5640).
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 the Practice Advice Service, the Law Society, 113 Chancery Lane, London, WCA 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
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