Restricting Liability
The question as to what extent a barrister can limit their liability in negligence cannot simply be answered by looking through the Barrister's Code of Conduct.
As a barrister you will appreciate that limiting liability is a complex legal issue and when doing so due consideration must be paid to the Unfair Contracts Terms Act (1977) and other legislation and case law.
Although there is nothing in the barrister's code of conduct, which prevents a barrister from limiting their liability, the Legal Services Committee and the Professional Standards Committee of the Bar Council take the view that it is not good practice for a barrister to limit their liability.
The Bar Council are of the opinion that barristers should not seek to limit their liability (http://www.barcouncil.org.uk/), except where, their liability for professional negligence, could exceed the level of available professional indemnity cover. The Bar Council state that a barrister should not assume that the Professional Indemnity (PI) cover, he or she has purchased under the Bar Mutual Indemnity Fund (BMIF), will be adequate.
The London Insurance market has, for many years made available limits of up to £65m in excess of the maximum £5m available under the BMIF. With this in mind, members of the bar who purchase small limits of professional indemnity cover and then engage in cases, which have a substantial economic value, are clearly exposing themselves. It would be arguable in such circumstances that a barrister who sought to limit his or her liability to the extent of his insurance coverage, could be in breach of the Unfair Contract Terms Act (1977), which in turn could amount to professional misconduct.
Barristers, should therefore, purchase levels of PI cover that reflect their potential exposure.
SBJ Global Risks Limited has been appointed as the sole BarCo Approved Supplier of Excess Professional Indemnity Insurance (EPII) and is also recommended by the BMIF.
We specialise in advising on and placing barristers PI insurance for members of the Bar who require greater PI cover than that available under the BMIF.
SBJ was selected to become the Bar Service Company approved supplier of EPII not only because we, historically, have acted for a considerable number of individuals from the UK's leading sets, but also because we were the only experienced broker with Lloyd's accreditation who could deal with both chambers and Lloyd's on a direct basis, which subsequently enhances our ability to respond and service the needs of individuals and chambers.
Our unique position of being able to deal directly with chambers and Lloyd's insurers has enabled us to negotiate and offer members of the Bar very competitive pricing for excess coverage being sought in 2008.
To download a proposal form, click here.