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

Q. When does the Statutory Declarations Act 1835 require a statutory declaration to be used?


A. The Statutory Declarations Act 1835 provides for a declaration to be substituted for an oath in the following cases where:


  • An attesting witness wishes to prove the execution of a will, codicil, deed or instrument in writing (see section 16);




  • A competent person wishes to prove the signing, sealing, publication or delivery of a will, codicil, deed or instrument in writing (section 16);




  • The Bank of England wishes to prove the death of a proprietor of any transferable stocks or funds, or identify the person of any such proprietor, or remove any other impediment to the transfer of any such stocks or funds, or otherwise deal with the loss or mutilation of any banknote (section 14);



  • A body corporate has the authority to administer or receive (by law statute or by usage) an oath, affidavit or solemn affirmation; it can substitute a statutory declaration for such oaths, affirmation and affidavits (section 8); and



  • The Treasury uses an oath relating to customs or excise revenues, the office of stamps and taxes, etcetera (section 2).




    • Subsequent legislation has also specified situations when statutory declarations are to be used. Various government agencies require the use of statutory declarations.


    In addition, there are several situations when a statutory declaration is commonly used (although there is no legislative requirement to do so), for example: on change of a person's name; on change of a baby's or an infant's name; and as evidence of incidental matters arising in proof of title to real property.


    See the Law Society publication Execution of Documents, which is available from the Law Society bookshop, price £39.95, tel: 020 7320 5640.





    Q. What is a statement of truth?


    A. The statement of truth has replaced the affidavit (or affirmation) as the main means of verifying the contents of a document in litigation save in a few cases.


    A statement of truth is a statement that the party putting forward the document (other than a witness statement) believes the facts stated in the document are true (see rule 22.1 (4) of the Civil Procedure Rules 1998 (CPR)). If the document is a witness statement, it is a statement that its maker believes that the facts stated within it are true.


    See the Law Society publication Execution of Documents.





    Q. I am a solicitor representing a client in an employment case before the Employment Tribunal. Can I enter into a contingency fee agreement?


    A. Yes. Practice rule 8 of the Guide to the Professional Conduct of Solicitors (8th edition, 1999) provides that a contingency fee may be entered into in respect of non-contentious business. Proceedings before all tribunals other than the Lands Tribunal and Employment Appeals Tribunal are deemed to be non-contentious business.



    See the practice advice service booklet, Non-Contentious Costs, which is available on the Law Society Web site (www.lawsociety. org.uk) or from the service, see details below.





    Q. The partners in our firm have been appointed as executors in a will. However, we no longer carry out probate work and wish to renounce the appointment. Can we do this?


    A. Yes. Where all the partners were appointed executors, rule 37(2A) of the Non-Contentious Probate Rules 1987 allows two partners to renounce probate (and administration with will annexed) on behalf of and with the authority of the other partners.


    The renunciation must recite the authority of the other partners. The executors must not have assumed a duty or performed an act that would normally only be attributable to a person assuming the executorship.





    Q. I am a solicitor acting as a litigant-in-person and wish to bring civil proceedings. Will I be entitled to claim costs?


    A. Yes. Rule 48.6(6)(b) of the CPR defines a litigant-in-person as including 'a barrister, solicitor, solicitor's employee or other authorised litigator who is acting for himself'.


    CPR 48.6(4) states that the amount of costs allowed to a litigant-in-person is dependant on the litigant either proving financial loss or where financial loss cannot be proved, an amount for the time reasonably spent on doing the work. The prescribed rate is set out in practice directions 43-48, section 52.4.





    Q. My firm has paid the fee for my practising certificate. Do I have to declare this on my income tax return form? (see [2005] Gazette, 28 April, 35).


    A. No, Revenue & Customs has agreed that where an employer has paid an employee's professional subscription to a recognised body, no benefit would be deemed to accrue to the employee and this does not have to be recorded on his income tax return. This applies to solicitors in private practice and those solicitors in-house whose duties of employment require them to hold a practising certificate (see section 343 of the Income Tax (Earnings and Pensions Act) 2003).


    Additional information on the tax position can be found on the Revenue & Customs Web site: www.hmrc.gov.uk/manuals/eimanual/eim32890.htm. We apologise for the misleading answer given in the earlier edition.


    This column is compiled by the Law Society's practice advice service, tel: 0870 606 2522. Send comments to the service at 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