Figures reveal low level of negligence claims against barristers

Barristers: No evidence to support periodic reaccreditation

The average barrister only makes one notification of a possible professional negligence claim every 20 years, figures from the Bar Mutual Indemnity Fund (BMIF) have revealed.

They also show that, of the 24,140 barristers BMIF has insured over the 32 years of its existence, just 512 (2%) have generated more than one valid claim.

The Bar Council deployed the statistics in its response to the Legal Services Board’s call for evidence on its review of continuing competence, using them as part of its argument that there was no need to introduce periodic reaccreditation.

BMIF found no perceptible pattern of increasing notifications by increasing call: in each of the last three years, across all levels of call the rate of notification runs at about 5%.

This was the same throughout barristers’ careers, meaning that “the average barrister will make a BMIF notification about once in every 20 years of practice”.

The Bar Council said: “The fact that notifications are so infrequent might be thought to suggest that notifications tend to arise from one-off carelessness, rather than incompetence, because if there were ingrained incompetence it would be expected to manifest itself on a repeating basis.”

This was supported by the absence of many ‘repeat offenders’. A total of £54m has been paid for the 512 barristers who were the subject of more than one valid claim, about one-quarter of Bar Mutual’s total payments of £221m since 1988.

“Bar Mutual does not have any data to suggest that the absence of formal reaccreditation is problematic or leads to a higher incidence of claims,” the Bar Council said.

Over the last three years, the error which attracted the most notifications was ‘client dissatisfaction including fee dispute’, which had an average of 82 notifications per year.

BMIF said: “This type of claim is to be expected as barristers regularly face the scenario where, perhaps due to an unfavourable outcome at court, a client or a solicitor does not wish to pay the barrister’s fees, and pursuit of the unpaid fees is met with a counterclaim for breach of duty.

“The second highest error recorded for all three policy years was ‘poor advocacy and preparation’, which had an average of 54 notifications each year, followed by ‘ignorance of law’, which had an average of 44 notifications.”

Personal injury in particular, as well as contentious Chancery work, commercial and financial services, and employment were the main practice areas causing claims.

The Bar Council also noted that Bar Mutual does not increase premiums for barristers conducting direct access work, “and there is no evidence to suggest that direct access work gives rise to a disproportionate level of claims”.

For these and several other reasons, the Bar Council concluded there was “nothing to suggest there are widespread problems of lack of competence at the Bar, and therefore no warrant for regulatory intervention”.

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