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Disciplinary Cover

From 1 April 2007 Bar Mutual Indemnity Fund’s (Bar Mutual) 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 for charges of professional misconduct were excluded from cover. With effect from April 1 2007 the Bar Mutual 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 Bar Mutual cover is set out at clause 1.3 of the Terms of Cover (September 2010 Edition), which provides as follows:

“Bar Mutual shall indemnify the Insured against Defence Costs”.

Defence Costs are defined as:

Any costs or expenses incurred with the prior consent of Bar Mutual in any of the following situations:

(i) As regards a Circumstance notified under sub-clause 5.1(i):

(a) in the investigation, defence and settlement of a potential Claim;
(b) in the investigation or defence of potential Disciplinary Proceedings;

(ii) in the defence or settlement of any Claim;

(iii) in the conduct of any proceedings for indemnity, contribution or recovery relating to a Claim;

(iv) in the defence of any Disciplinary Proceedings.

Exclusions
 
Certain matters are excluded from the indemnity set out at clause 1.3 of the Terms of Cover. They are set out at clause 3 of the Terms Of Cover.

3.1 Any liability of Bar Mutual under these Terms of Cover for the following shall be excluded:

(i) Claims or Disciplinary Proceedings for bodily injury or death unless arising out of the provision of Legal Services to a client by the Insured;

(ii) Claims or Disciplinary Proceedings for loss of or physical damage to property unless

(a) the property is property in the care of the Insured in connection with, but is not occupied or used by him for the purposes of, the Insured Practice, or (b) the loss or physical damage arose out of the provision of Legal Services to a client by the Insured;

(iii) Claims or Disciplinary Proceedings against which the Insured is entitled to be indemnified under any other insurance, but only to the extent that he is entitled to be and is so indemnified;

(iv) Claims or Disciplinary Proceedings against which the Insured is entitled to be indemnified under any other insurance, but only to the extent that he is entitled to be and is so indemnified;

(v) Claims or Disciplinary Proceedings arising out of any breach of any duty owed by the Insured as an employer to an employee, or as owner or occupier of any property;

(vi) Claims or Disciplinary Proceedings in respect of debts incurred by the Insured

(vii) Claims or Disciplinary Proceedings in respect of any loss or damage directly or indirectly caused by ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, or the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear assembly or nuclear component thereof;

(viii) Claims or Disciplinary Proceedings arising out of any dispute between present or former members, pupils or Clerks or Chambers in respect of matters relating to or in any way connected with ownership, occupation, possession, management or administration of the Chambers or of any property used in or for the purposes of the Chambers or the Insured Practice;

(ix) Claims or Disciplinary Proceedings in respect of any liability arising directly or indirectly out of any association (including partnership) entered into with any lawyer (whether as permitted under the Overseas Practice Rules in the Code of Conduct or otherwise), save to the extent that in the opinion of the Directors such liability results from the personal act or omission of the Insured and would otherwise fall within the provisions of these Terms of Cover;

(x) Claims or Disciplinary Proceedings in respect of any liability arising directly or indirectly out of any association (including partnership) entered into with any lawyer (whether as permitted under the Overseas Practice Rules in the Code of Conduct or otherwise), save to the extent that in the opinion of the Directors such liability results from the personal act or omission of the Insured and would otherwise fall within the provisions of these Terms of Cover;

(xi) Claims or Disciplinary Proceedings arising out of or in any way in connection with the supply of Legal Services as a Foreign Lawyer or European Lawyer, save to the extent specified in the Cover Note or any endorsement thereto;

(xii) Claims or Disciplinary Proceedings arising out of or in any way in connection with the provision of Legal Services in a system of law and/or jurisdiction in which the Insured is not authorised to provide Legal Services by

(a) the Bar Council or any successor regulator to it; or
(b) any competent professional body; or
(c) any judicial or other body;

(xiii) Claims or Disciplinary Proceedings against a Registered European Lawyer arising out of or in any way in connection with the provision of Legal Services as a European Lawyer before he became a Registered European Lawyer, save to the extent specified in the Cover Note or any endorsement thereto;

(xiv) Claims or Disciplinary Proceedings arising out of or in any way connected with failure to comply with the Continuing Professional Development Regulations, the Practising Certificate Regulations, paragraph 204(b) of the Code of Conduct, paragraph 402.1 of the Code of Conduct or paragraph 402.2 of the Code of Conduct, including Disciplinary Proceedings for failing to respond to Disciplinary Proceedings for any of the foregoing.

(xv) Claims or Disciplinary Proceeding arising out of any criminal offence committed or allegedly committed by the Insured or out of an enquiry conducted by Her Majesty’s Revenue and Customs into the Insured’s 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 at clause 1.4 of the Terms of Cover. It is only in exceptional cases that the Directors will cover what is otherwise excluded. If a member wishes to make a request for support, he should give full written details of the basis upon which it is made, to the Directors, through the Managers.

Role of the Managers

Bar Mutual 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 Bar Mutual of a disciplinary complaint please contact the Managers of BMIF: 90 Fenchurch Street, London EC3M 4ST.  Telephone: 020 7621 0405, Facsimile: 020 7283 5988 email.

Professional Practice Committee
Bar Council
December 2010