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


Q I am acting for an elderly gentleman in a civil matter and the hearing is set to take place next month. I have just been informed that my client's health is deteriorating rapidly, and the doctors advise that it is unlikely that he will be well enough to attend the trial to give evidence. What should I do?



A When a person is too infirm to attend the hearing, arrangements may be made for that person's evidence to be taken in advance in a manner that suits the circumstances. It is a procedure known as taking depositions. This could be in a local court before the district judge, or in the individual's own home or a nursing home before an independent solicitor appointed for the purpose.


The power is discretionary, but an order for a person to be examined by way of deposition will usually be made (and is often made by consent) where the witness:


- Is too old and weak to attend a trial;


- Is so ill or infirm that there is no prospect of being able to attend the trial;


- Might die before the trial;


- Intends to leave the country before the trial.



For further information, see the Law Society's Elderly Client Handbook, 3rd Edition, which is available from the Society's bookshop, tel: 020 7320 5640.





Q I am a partner in a legal aid practice and we are considering taking on a trainee solicitor. Is it correct that the Legal Services Commission will award grants to firms to recruit trainees?



A Yes. The Legal Services Commission does award grants to firms with a general civil or criminal contract to enable them to pay the tuition fees for the legal practice course (LPC) for up to 100 students. Firms who derive more than 70% of their income from legal aid work will be targeted for the grants. An additional 100 grants will also be provided to support the provision of training contracts for successful LPC students. Further details can be found on the Law Society's Web site at: www.lawsociety.org.uk.





Q My client, who lacks mental capacity, has been involved in an road traffic accident. Can I enter into a conditional fee agreement (CFA) with this client and how can I ensure the level of success fee is not unduly challenged?



A In the case of an adult who lacks mental capacity to take proceedings on his own behalf, a litigation friend can enter into a CFA on behalf of the claimant.


If the Court of Protection is already involved, it should be asked to approve the CFA, especially the level of the success fee. It is the Court of Protection in those circumstances that gives the receiver the authority to enter into the agreement.


If the Court of Protection has not yet been involved, it will be necessary when an application is eventually made for the appointment of a receiver to bring the matter to the attention of the Court of Protection and seek retrospective approval at that point in time. If the Court of Protection indicated that it was not prepared to approve the CFA because of the level of the success fee, then it will be necessary to adjust the success fee and satisfy the Court of Protection.



Ultimately, the level of success fee in the CFA could be challenged by the other side in the litigation and the matter could be considered at the end of litigation by the costs judge dealing with the detailed assessment of costs. However, if the CFA has been signed by the receiver with the approval of the Court of Protection, there should be little difficulty in persuading the costs judge that the level of success fee was reasonably set at the time the agreement was entered into. For more information, see the Law Society's book, Conditional Fees, A Survival Guide, available from the Society's bookshop.





Q I am acting for a client on a CFA using the Law Society's current model agreement. If my client loses her case, what could she be responsible for regarding the opponent's costs?



A Your client could be liable for the losing side's costs and disbursements (plus potentially a success fee if the other side is also operating on a CFA). It should be pointed out that these will be subject to the scrutiny of assessment. Furthermore, you are under a duty under the CFA regulations to advise her about the availability and suitability of insurance products to cover such potential liabilities. It is important that your client understands the consequence of losing the case. This is a specific duty under regulation 4(2)(b) of the CFA Regulations 2000.





Q I understand that the Law Society has produced a family law protocol. When was this launched and where can I obtain it?



A The protocol was launched on 7 March 2002 and is available at £14.95 from the Law Society's bookshop.




Q What is the current judgment debt rate?



A Since 1 April 1993, the rate of interest payable on judgment debts has been 8% per annum. See Judgment Debts (Rates of Interest) Order 1993 (SI 93/564).



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