Disciplinary Cover

From 1 April 2007 Bar Mutual Indemnity Fund’s (BMIF) cover was extended to include costs and expenses incurred with BMIF’s consent in defending disciplinary proceedings.

Barristers in receipt of a formal complaint are strongly urged to make immediate use of the available support before preparing any response (for which a maximum of three weeks is usually given in the first instance).

The Managers dealing with complaints against members of the Bar are all legally qualified. It is envisaged that they would assist with advice and in carrying out the necessary investigations. Only exceptionally would solicitors be instructed. However, the Managers will instruct counsel both for specialist advice and/or if it is necessary to act as advocates in hearings.

Cover

Prior to April 1 2007 the costs of defending disciplinary proceedings were only paid by BMIF as part of the basic cover if in the view of the Managers the outcome of the disciplinary proceedings had a potential impact on a claim for a civil liability that was covered under the BMIF Rules.

With effect from April 1 2007 the BMIF Rules were changed to provide cover for the costs of responding to a complaint and, in the event that the Conduct and Complaints Committee decides that disciplinary proceedings should be instigated, providing appropriate representation at the hearing.

The extension of the BMIF cover is set out in Rule 10.1.1(c), which provides as follows:

“BMIF shall indemnify the Insured against any costs and expenses incurred with the prior consent of BMIF in the defence of Disciplinary Proceedings, but such indemnity shall not be available in respect of any Disciplinary Proceedings falling within the exclusions from cover in Rule 10.1.2.”

Exclusions

The exceptions set out in 10.1.2 referred to above are:

(i) failure to pay BMIF premiums

(ii) failure to comply with CPD requirements

(iii) failure to obtain a practising certificate

(iv) complaints made in the context of intra chambers disputes

(v) complaints made as a consequence of criminal convictions

(vi) enquiries conducted by Her Majesty’s Revenue and Customs into tax or VAT affairs

In relation to these exclusions, the Directors retain the power to sanction the funding of a defence. This power is contained in Rule 3.3, which provides that “the Directors may, in their discretion, provide indemnity for any cost even if specifically excluded from the Rules”.

It is only in exceptional cases that the Directors will cover what is otherwise excluded. If a member believes that the circumstances of his or her case are exceptional and/or if a member believes that the funding of a defence may cause him or her financial hardship a request for support, giving full details of the basis upon which it is made, should be made to the Directors, through the Managers.

Role of the Managers

BMIF is a mutual set up by barristers for barristers and is not a commercial insurance company. Accordingly, the Managers are available to give advice on any issue, even if the subject matter is excluded from cover. They will also be able to provide contact details for BCAS and LCLCBA, where pro bono support may be available.

If the subject matter of the complaint is not excluded by virtue of Rule 10.1.2, legal costs incurred by a member will be recoverable only if they are incurred with the approval of the BMIF. Accordingly, it is important that the Managers are advised of the complaint at an early stage.

Immediate Action to be Taken

The importance of the initial response to the complaint cannot be over-emphasised. In many instances an appropriate response may persuade either the Complaints Commissioner or the Conduct and Complaints Committee to dismiss the complaint. Equally an inadequate or inappropriate response may make it more likely that the matter will be escalated to the Conduct and Complaints Committee who may decide that the complaint should be made the subject of disciplinary proceedings.

If it is not practical to respond to a complaint within the three week time limit laid down by the Bar Standards Board, an extension of time will normally be granted in response to a reasoned request. An extension should be applied for as soon as it is recognised that it will be required.

Contact Details

For further information and to notify BMIF of a disciplinary complaint please contact the Managers of BMIF: International House, 26 Creechurch Lane, London EC3A 5BA. Telephone: 020 7621 0405, Facsimile: 020 7283 5988.