45. Negligence and Breach of Duty Claims - Lavelle Coleman

of their decision. It can direct compensation
payment not exceeding 3,000.
The complaint may be referred to an
independent adjudicator, who can revisit the
file. Alternatively, the matter can be sent
directly to the Solicitors Disciplinary
Tribunal. The Disciplinary Tribunal
investigates allegations of misconduct
against solicitors. A complaint can be
referred directly to the Tribunal or can be
referred by the Complaints and Client
Relations Committee.
If the Disciplinary Tribunal considers the
misconduct to be sufficiently serious so as
not appropriate for the exercise of the above
sanctions, it may report to the High Court.
The High Court has an inherent jurisdiction
over solicitors. In referring to the High Court,
the Disciplinary Tribunal must form an
opinion as to the fitness of the solicitor to
practice and recommend sanctions. The
High Court may strike off solicitor, suspend
practice, limit practice, restrict practice or
censure or fine the solicitor.
conditions of insurance cover. The rules
were revised in 2008 to provide revised
minimum terms'.
Under the minimum terms, the insurer may
not disclaim liability under the policy by
reason of non-disclosure of material risks,
misrepresentation and even fraud. This
changes the utmost good faith principle
which usually means that an insurer can
avoid an insurance policy, if all material facts
are not disclosed. The insurer must cover
the risk even where the matter concerned
was deliberately withheld at the renewal of
the policy.
There is a proposal at present (September
2009) to further amend the minimum terms
for the next insurance period (commencing
December 2009) on account the difficulty
that the new minimum terms have caused in
procuring insurance for some practitioners
at a reasonable cost. There is also a
proposal to exclude cover for certain types
of solicitors undertakings in commercial
property loans.
Professional Liability Insurance
Every solicitor must maintain professional
indemnity insurance at a level of no less
than 2,500,000 per claim as a precondition
to obtaining an annual practising certificate.
The rules lay down minimum terms and
The Law Society has created the assigned
risks pool for solicitors who cannot obtain
insurance cover in the open market at a
reasonable cost. Once in the pool, the
solicitor is subject to Law Society
supervision and must undergo a risk
management assessment and audit. There