In a continuing series, the Law Society's practice advice service offers guidance on a range of issues
Q. I act for the purchaser in a conveyancing transaction that has just completed. The seller's solicitor says he has posted the title deeds to me, but it appears that they have become lost in transit. We had agreed to use the Law Society's code for completion by post. Who is responsible for the cost of replacing the deeds?
A. You are. Under paragraph 10(ii)(b) of the Law Society's code for completion by post, the seller's solicitor undertakes to send the deeds by first-class post or document exchange to the buyer's solicitor as soon as possible after completion, and in any event on the same day. This is done at the risk of the buyer's solicitor.
Q. I have taken instructions from an elderly lady in relation to making a will. My client has asked if she is entitled to any public funding. What is the position?
A. The making of wills and matters of trust law are the services that cannot normally be publicly funded as part of the Community Legal Services scheme. However, the Lord Chancellor issued a direction under section 6(8) of the Access to Justice Act 1999, authorising the Legal Services Commission (LSC) to fund certain areas of work that would normally be excluded.
In relation to wills, the Lord Chancellor has permitted the LSC to fund legal help where the client is:
Applications for funding under this direction must still satisfy all relevant criteria in the LSC's funding code and regulations (see the Law Society's Probate Practitioner's Handbook, 4th Edition, which is available from the Law Society's bookshop, tel: 020 7320 5640).
Q. Where can I find the specimen information for entitled persons under the Solicitors' (Non-Contentious Business) Remuneration Order 1994?
A. This is set out in the Guide to the Professional Conduct of Solicitors, 1999, eighth edition, page 302, and is reproduced here. The specimen information for the entitled person is not part of the order and solicitors may use any form of words that comply with the Solicitors' (Non-Contentious Business) Remuneration Order 1994.
Remuneration certificates
(1) If you are not satisfied with the amount of our fee you have the right to ask us to obtain a remuneration certificate from the Law Society.
(2) The certificate will either say that our fee is fair and reasonable, or it will substitute a lower fee.
(3) If you wish us to obtain a certificate you must ask us to do so within a month of receiving this notice.
(4) We may charge interest on unpaid bills and we will do so at [the rate payable on judgment debts, from one month after delivery of our bill].
(5)(i) If you ask us to obtain a remuneration certificate, then unless we already hold the money to cover these, you must first pay: half our fee shown in the bill; all the VAT shown in the bill; all the expenses we have incurred shown in the bill - sometimes called 'paid disbursements'.
(ii) However, you may ask the Consumer Complaints Service at 8 Dormer Place, Leamington Spa, Warwickshire CV32 5AE, to waive this requirement so that you do not have to pay anything for the time being. You would have to show that exceptional circumstances apply in your case.
(6) Your rights are set out more fully in the Solicitors' (Non-Contentious Business) Remuneration Order 1994.
Taxation
You may be entitled to have our charges reviewed by the court. (This is called 'taxation' or 'assessment'.) The procedure is different from the remuneration certificate procedure and is set out in sections 70, 71 and 72 of the Solicitors Act 1974.
Q. I am a solicitor and a client requires a document to be sworn before a commissioner of oaths. Can the document be sworn before me?
A. Yes. Under the Courts and Legal Services Act 1990, the powers conferred on a commissioner for oaths by the Commissioners for Oaths Acts 1889 and 1891 are exercisable by every solicitor holding a current practising certificate. Section 113(10) of the 1990 Act gives a practising solicitor the right to use the title commissioner for oaths.
See the Law Society publication Execution of Documents available from the Society's bookshop.
Q. Is after-the-event insurance mandatory in conditional fee cases?
A. No. However, the Solicitors' Costs Information and Client Care Code 1999 requires solicitors, in all cases, to discuss with clients whether the purchase of after-the-event insurance is advisable.
Furthermore, in matters where a conditional fee agreement is being entered into, under regulation 4(2)(e) of the Conditional Fee Agreement Regulations 2000, legal representatives must inform, explain and advise on whether they consider any particular method of financing the costs of litigation appropriate.
Note that some after-the-event insurers require solicitors who are on their panels to take out after-the-event insurance in all conditional fee agreement cases. It is important that solicitors make it clear to their clients that they are not acting as brokers.
Q. I have been instructed by an elderly client to draw up an enduring power of attorney (EPA). However, I have concerns about my client's mental capacity. What steps should I take?
A. If there is any doubt about the donor's capacity, a medical opinion should be obtained. The solicitor should inform the doctor of the test of capacity laid down in Re K, Re F [1988] 1 ALL ER 358, 363. If the doctor is of the opinion that the donor has capacity, he should make a record to that effect and witness the donor's signature on the EPA (see Kenward v Adams, The Times, 29 November 1975). See the Law Society's Enduring Powers of Attorney Guidelines for Solicitors booklet, which can be found on the Society's Web site at: www.lawsociety.org.uk, or obtained from the Practice Advice Service (contact details below).
This column is compiled by the Law Society's Practice Advice Service, tel: 0870 606 2522. Send comments to the Practice Advice Service, 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
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