Barristers’ indemnity market “should be opened to competition”
Two barristers caught up in high-profile disciplinary actions have referred complaints about lack of funding from the Bar Mutual indemnity fund to the Financial Ombudsman Service (FOS), it has emerged.
However, Bar Mutual has hit back strongly in defence of its actions, and expressed confidence that the ombudsman will rule in its favour.
One of the cases, that of family law specialist JS, prompted the Legal Ombudsman to announce a review of its internal guidelines last month, after he was cleared of misconduct by a Bar disciplinary tribunal.
Barrister Marc Beaumont, who acted for JS, said Bar Mutual withdrew funding after Mr Smith terminated his retainer with a firm on the fund’s panel and instructed a non-panel firm.
Mr Beaumont said the mutual fund then withdrew all funding, including to cover his fees as counsel. “This was a mere two to three weeks before trial. I would not leave the intrepid Mr Smith without representation and carried on to trial acting for him on a direct access basis, where, eventually, I secured his acquittal.”
Mr Beaumont said Bar Mutual had refused to pay his fees, despite having asked for his fee note. “Mr Smith has reported BMIF to the Financial Ombudsman Service. He is not alone in being completely baffled by the arbitrary behaviour of the Bar’s sole insurer.”
Mr Beaumont said another high-profile client, non-practising barrister Carron Ann Russell, had also referred Bar Mutual to FOS.
Ms Russell founded a law firm, Russell Henry, as a registered foreign lawyer, but was later struck off the roll of solicitors for misleading the Solicitors Regulation Authority. A Bar disciplinary tribunal found her guilty on professional misconduct on this basis in 2010. The substance of her appeal was rejected by the Visitors to the Inns of Court last year.
Meanwhile, she launched a judicial review, which was rejected by the High Court. Mr Beaumont said her appeal against this ruling would be heard by the Court of Appeal later this year.
A third case concerns Ben Conlon, who was found guilty of professional misconduct and fined for ignoring online pupillage applications. Mr Conlon was head of the pupillage committee at 3 Temple Gardens at the time. The Visitors to the Inns of Court last month rejected his appeal.
Mr Conlon told Legal Futures that Bar Mutual claimed they could not fund because of a “conflict of interest” in that it was representing the joint heads of chambers at the time, Paul Williams and Donald Gordon. The Visitors overturned the disciplinary tribunal’s finding that Mr Williams and Mr Gordon were guilty of professional misconduct.
“I could no reason why, if the other two were funded, I should not have been funded,” Mr Conlon said. “I took all the blame. I was not accusing anyone of anything.”
Mr Beaumont said he could see no reason why the barristers’ indemnity market should not be opened to competition and organisations apart from Bar Mutual should be unable tender for the bar’s business. “Barristers are faced with having to quarrel with their insurance company at a time when they are most vulnerable.”
In a statement to Legal Futures, a spokesman for Bar Mutual said the fund’s claims committee was entitled to decide that further expense on the defence of a case was not justified.
“Bar Mutual has been advised by leading City solicitors that neither of the two complaints to the Financial Ombudsman Service about the committee’s decision not to provide further funding to the member in question is meritorious. Bar Mutual has rejected both.”
The spokesman said, in relation to the Conlon case, that “Bar Mutual concluded, as it was entitled to do, that the merits of the case did not justify the funding of an appeal”.
He went on: “Notwithstanding the concerns apparently communicated to Legal Futures, Bar Mutual remains satisfied that the claims committee was entitled to reach the decisions it did.
“Finally, as is commonplace in professional indemnity insurance, the Bar Mutual terms of cover contain a QC clause, pursuant to which disputes between a member and Bar Mutual about the future conduct of a case may be determined by an independent QC.
“None of the three barristers concerned has chosen to invoke this clause.”
The spokesman added that although Bar Mutual was “not permitted to provide a full explanation of the circumstances of each case”, it was certain that “an objective observer, aware of all relevant information, would not hesitate to conclude that Bar Mutual has treated each member generously, while at the same time responsibly protecting the interests of its membership as a whole.”
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