In a continuing series, the Law Society's practice advice service offers guidance on a range of issues
Q. I am a trainee solicitor working in the criminal law department of my firm. I need to write to my client, who is currently on remand in Wormwood Scrubs. How can I be sure my letters reach him without being opened?
A. A solicitor's letter should not be opened and read by the prison authorities if it is posted inside a double envelope. The outer envelope should be addressed as normal to your client; the inner unstamped envelope should be marked clearly 'Prison rule 39' (or YOI (Young Offender's Institute) rule 14 if addressed to a young offender).
The inner envelope should also be marked with the client's name and prison number, if known, address and telephone number of the solicitor's office; a reference number, if possible and the signature of the solicitor. Mail clearly marked in this way will be regarded as legally privileged and passed to your client unopened unless a governor suspects that it is not actually privileged. See the Law Society's publication, Criminal Defence, second edition, which is available from the Law Society's bookshop, tel: 020 7320 5640.
Q. When can I start charging interest on unpaid costs?
A. If the matter is non-contentious, you may charge interest on the whole or outstanding part of an unpaid bill 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:
See principles 14.10 and 14.11 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition, available at: www.guide.lawsociety.org.uk, or from the Law Society's bookshop.
Q. I am acting as executor in the administration of an estate where the only residuary beneficiary is a charity. The charity is unhappy with my firm's costs and has requested a remuneration certificate. I have provided the charity with a practice rule 15 letter and information on costs, even though it is strictly speaking not my 'client'. Am I obliged to comply with its request? My final bill of costs is less than £50,000.
A. Yes, as the charity is an entitled third party, article 2 of the Solicitors (Non-Contentious Business) Remuneration Order 1994 permits a residuary beneficiary absolutely and immediately (not contingently) entitled to an inheritance to request a remuneration certificate where the only personal representatives are solicitors (whether or not acting in a professional capacity), or solicitors acting jointly with partners or employees in a professional capacity.
Q. I am a trainee solicitor assisting in the preparation of a bill of costs in a contentious matter. My firm's cost draftsperson tells me that I cannot make a charge for incoming letters in my bill of costs. Is this correct?
A. Yes. The unit charge for letters out will include perusing and considering the relevant letters in and no separate charge should be made for incoming letters (section 4.16(1) of the Costs Practice Direction relating to part 43 of the Civil Procedure Rules 1998 (CPR)), although the terms of your retainer may allow recovery of this from your client.
Q. My firm represents a claimant in relation to a personal injury claim and we have received the final order from the court today. There is an error in the order that makes its interpretation unclear. How can the order be amended? Do we need to inform the defendant's solicitors?
A. Clerical mistakes in judgments or orders, or errors arising from any accidental slip or omission, may at any time be corrected by the court (CPR rule 40.12). A party may apply for a correction without notice. There is no time limit for such an application.
Q. I am acting for the seller in the sale of a leasehold residential property and the buyer's solicitor has agreed to adopt the national conveyancing protocol. I have forwarded the seller's property information form and the seller's leasehold information form fully completed to this solicitor but he has now raised a large quantity of additional enquiries, some of which are in standard form, and some of which have been answered by the information already supplied. How should I deal with these extra enquiries?
A. There is no restriction on users of the protocol raising relevant additional enquiries, particularly those arising out of the documents provided with the draft contract.
However, a buyer's solicitor who sends a sheet of standard additional enquiries is not adhering to the terms and spirit of the protocol. The main aim of the protocol is to streamline procedures in domestic conveyancing.
Practitioners are urged to raise only those additional enquiries that are needed in each particular transaction or locality and to resist the temptation to ask additional enquiries, especially those relating to the state and condition of the property. If a solicitor, having agreed to adopt the protocol, departs from its provisions he should give notice to the solicitor acting for the other party.
For further guidance, see A Guide to the National Conveyancing Protocol, fifth edition, available from the Law Society's bookshop.
Q. Is there any guidance for solicitors on court dress?
A. Yes, guidance can be found in Practice Direction (Court Dress) (No 3) which is available on the Court Service Web site at: www.hmcourts-service.gov.uk. Solicitors should wear a black stuff gown and bands, but no wig.
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
No comments yet