The Professional Standards Committee of the Bar Council has this month issued guidance to all barristers regarding their professional indemnity cover. It advises that it is rarely appropriate for a barrister to seek to limit their liability for professional negligence claims and that this could amount to professional misconduct. However, it states that it is seeking approval for amendments to its code of conduct to allow barristers to refuse work if the potential liability for professional negligence could exceed the levels of professional indemnity cover. Otherwise, to refuse work in these circumstances would offend against the cab rank rule. Interestingly, the Bar Council also warns that the Bar Mutual Indemnity Fund’s (BMIF’s) minimum cover should not be assumed to be sufficient and that it is in discussions as to whether the minimum cover should be increased.
This is interesting, because the Bar Council clearly considers that there is an increased risk of claims and that barristers may not be adequately covered by the BMIF. Following the decision in Arthur JS Hall v Simons [2000], which abolished a barrister’s automatic immunity from negligence claims arising out of court work, the floodgates could have been opened for claims but, so far, this has not materialised. However, following the Bar Council’s recent introduction of new rules permitting direct access to barristers from the general public for limited types of work, bypassing the solicitor, the position may change.
