IE
S.I. No. 409/2011 - The Solicitors Acts 1954 to 2008 (Professional Indemnity Insurance) Regulations 2011.
Table of Provisions (21)
Statutory Text (21 Articles)
1. 2 In these Minimum Terms and Conditions, unless the context otherwise requires:—
(
a
) words and expressions shall have the same meaning and shall be construed consistently with the same words and expressions in the Solicitors Acts 1954 to 2008 (Professional Indemnity Insurance) Regulations 2011;
(
b
) the
Interpretation Act 2005
shall apply for the purpose of interpreting these Minimum Terms and Conditions as it applies to the interpretation of an act of the Oireachtas, except insofar as it may be inconsistent with the Solicitors Acts 1954 to 2008 or with these Minimum Terms and Conditions;
(
c
) a reference in these Minimum Terms and Conditions to any directive, statute, statutory provision, statutory instrument or other similar instrument includes:—
(i) any subordinate legislation made under it, and
(ii) any provision which it has superseded or re-enacted (with or without modification) or amended, and any provision superseding it or re-enacting it (with or without modification) or amending it either before, at or after the date of commencement of these Minimum Terms and Conditions;
(
d
) the singular includes the plural, and vice versa;
(
e
) words denoting any gender include all genders and words denoting the singular include the plural and vice versa;
(
f
) any reference to a person shall be construed as a reference to any individual, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two (2) or more of the foregoing;
(
g
) references to a “company” include any body corporate;
(
h
) headings are inserted for convenience only and shall not affect the interpretation of these Minimum Terms and Conditions; and
(
i
) references to awareness of the Insured shall be limited to the actual knowledge of a Principal of the Firm, or any solicitor or registered lawyer employed by the Firm.
2 SCOPE OF COVER
2. 5.3 The Insurance may permit the Insurer to charge an additional premium in respect of coverage for a Succeeding Practice provided pursuant to this clause 2.5, but the Insurance may not provide that the Insurer can decline to indemnify the Insured or cancel, terminate or avoid the Insurance due to non-payment of any such additional premium when due.
3 MINIMUM LEVEL OF INSURANCE COVER
3. 6.2 Where the Insurance is underwritten jointly by more than one (1) Insurer, the Insurance must state which Qualified Insurer shall be the Lead Insurer and in addition to any proportionate limit of Defence Costs in accordance with clause 3.3, the Insurance may provide that each Insurer’s liability for Defence Costs is further limited to the extent of the proportion of that Insurer’s liability (if any) in relation to a relevant Claim.
4 SELF-INSURED EXCESSES
4. 3 Payment of Self-Insured Excess to Claimant
In the event that an amount which is within the Self-Insured Excess is not paid by a Firm to a Claimant within 30 (thirty) Working Days of its becoming due, the Insurer must redress the default on the part of the Firm and make payment thereof to the Claimant, and in such circumstances, the Insurance may provide that the Insurer shall be entitled to recover any amount so paid from the Firm.
5 SPECIAL CONDITIONS
5. 10 Contesting Liability
A Firm or an Insured shall not be required against its wish to contest the issue of liability in any legal or arbitration proceedings arising from any Claim unless a solicitor or a member of the Irish Bar (as mutually agreed upon between the Firm and the relevant Insurer, or failing agreement, to be appointed by the Chairman of the Bar Council of Ireland) shall advise that such proceedings or arbitration should be contested.
6 EXCLUSIONS
6. 17 Misrepresentation and Non-Disclosure
The Insurance may exclude liability of the Insurer to indemnify all Insureds under the relevant Insurance in respect of any Claim by a Financial Institution in circumstances where the Insurer can demonstrate (and for the avoidance of doubt, the burden of proof in this regard shall rest with the Insurer) that any Insured was guilty of any material misrepresentation or material non-disclosure in placing the Insurance, save that liability shall not be excluded on the grounds of innocent misrepresentation or innocent non-disclosure on the part of the Insured. For the avoidance of doubt, the effect of this clause 6.17 shall be that no such Claims shall be valid as against a Qualified Insurer.
7 GENERAL CONDITIONS
7. 7 In providing Claims Reports, the Insurer shall use its reasonable endeavours to provide all of the information set out in clause 7.6, but shall not be required to provide any part of that information to the extent that doing so would not be reasonably practicable having regard to the manner in which Claims information is stored on the computer systems of the Insurer.
8 DISPUTE RESOLUTION
8. 3.3 it is fair and equitable in all the circumstances for such Direction to be given.
The Insurance may provide that the Insured shall be required to afford reasonable co-operation to the Insurer in relation to the handling of any Claim against the Insured, subject to the Insurer agreeing to meet the Insured’s reasonable costs of such co-operation, and the Insurance may further provide that the Insurer shall be entitled to recover from the Insured by way of damages a sum equal to the Insurer’s loss arising from or connected with the Insured’s failure to co-operate as required by the Insurance. For the avoidance of doubt, the Insurance may not permit the Insurer to refuse to pay any claim, or to cancel, terminate or avoid the Insurance, due to the Insured’s failure to co-operate as required by the Insurance.
APPENDIX 2
RISK MANAGEMENT AUDIT TERMS OF REFERENCE
(
a
) Each risk management audit report should estimate the number of files held by the firm and break these down statistically, giving the percentage of total files and the percentage of gross fees of the firm falling under such different categories of business as may be appropriate.
(
b
) Each risk management audit report should give an account of the methods of file maintenance and post and communications delivery used by the firm and should confirm:—
(i) that all filing is up to date and is contained in fire-proof storage facilities; and
(ii) that provision has been made for back-up storage of all electronic files and communication records held by the firm.
(
c
) Each risk management audit report should give details of any diary system used by the firm and set out details of how the diaries of any solicitor, registered lawyer, principal or other person employed by or engaged in the practice of the firm (including any consultants) is managed and monitored during any absences.
(
d
) Each risk management audit report should set out a list of the principals of the firm and of every staff member employed by or engaged in the practice of the firm (including any consultants) and should list and summarise:—
(i) their roles and years of service;
(ii) their qualifications;
(iii) any other relevant information.
(
e
) Each risk management audit report should include an account of interviews held with each principal of the firm and any other staff member employed by or engaged in the practice of the firm believed by the risk management auditor to be relevant to obtain a proper view of the levels of risk management pertaining within the firm.
(
f
) Each risk management audit report should include a list of the files closed within the firm during the 12 months preceding the date of the risk management auditor’s visit to the firm and these files should be examined by the risk management auditor to obtain a summary view of them from a risk management perspective.
(
g
) Each risk management audit report should include an account of an examination by the risk management auditor of the firm’s accounting system, indicating that access to ledgers, account cards or any relevant electronic record storage system was obtained, and further indicating any areas of concern that arise from a risk management perspective.
(
h
) Each risk management audit report should indicate whether a centralised record of undertakings given by the firm is maintained, and should include an examination of such record, indicating any areas of concern that arise from a risk management perspective.
(i) Each risk management audit report should give an account of any files identified by the risk management auditor as being of concern from a risk management perspective, and should report as to the extent of liability involved in each case.
9. Entering the Assigned Risks Pool
(
a
) Subject to Regulation 9(
k
), where at any time a firm either has not established or fails to maintain qualifying insurance underwritten by a qualified insurer as required by these Regulations, that firm shall (if it is an ARP eligible firm) apply to enter the assigned risks pool prior to:—
(i) the date on which the relevant indemnity period commences, or
(ii) the date on which it fails to maintain qualifying insurance,
whichever date is the earliest.
(
b
) The PII committee, in its absolute discretion, shall have power to grant a dispensation from the ARP eligibility criteria (or any part thereof) to a firm in an appropriate case.
(
c
) The ARP premium payable by any firm in respect of whose practice an ARP coverage is to be issued from time to time, shall be calculated by the SPF manager in accordance with the ARP premium schedule.
(
d
) A firm that is required to apply to enter the assigned risks pool and that is an ARP eligible firm shall apply in the following manner:—
(i) it shall submit to the SPF manager a proposal form, in a format designated from time to time by the SPF management committee, seeking to obtain ARP coverage and stating the date upon which such coverage should commence (not being a date earlier than the date upon which the application is made), together with such further information (if any) as may be required by the SPF manager for the purposes of considering the firm’s application and determining the applicable ARP premium in accordance with Regulation 9(
d
);
(ii) it shall pay in advance of entry to the assigned risks pool such sum by way of an advance payment of premium to be known as the “initial ARP premium” as the SPF manager may determine in accordance with the ARP premium schedule, and it shall undertake to pay and shall pay such further sums, to be known as “additional ARP premium”, by way of premium calculated in accordance with the ARP premium schedule, on such further dates as the SPF manager may from time to time determine;
(iii) it shall submit to the Law Society a signed undertaking, in a format designated from time to time by the SPF management committee, confirming that it will:—
(A) submit to such monitoring and risk management audits and take all such actions and pay such costs and expenses thereof as is provided for under and pursuant to these Regulations, and
(B) pay any costs and expenses incurred by the Law Society or the SPF manager from time to time as a result of any failure on its part to comply with any provision of these Regulations.
(
e
) Where a firm with ARP coverage is deemed to be in compliance with the minimum common risk management standard in respect of an indemnity period pursuant to Regulation 16, that firm shall be entitled to have its ARP premium for that indemnity period re-calculated in accordance with the relevant provisions of the ARP premium schedule, to be known as the “re-calculated ARP premium”. Where the re-calculated ARP premium is lower than that firm’s ARP premium
(i) if the firm has already paid the ARP premium for that indemnity period to the SPF manager, it shall be entitled to reimbursement from the SPF manager of the difference between the re-calculated ARP premium and the ARP premium; or
(ii) if the firm has not already paid the ARP premium for that indemnity period to the SPF manager, it shall pay the re-calculated ARP premium to the SPF manager on such date at the SPF manager may from time to time determine.
(
f
) The provisions of Regulation 9(
e
) may, from time to time, be cancelled or varied by the PII committee in its sole discretion and for such period as it may, in its sole discretion, determine.
(
g
) Where a firm has been issued with ARP coverage, the terms of the ARP coverage shall prescribe that, and the firm shall be deemed to agree that, any additional ARP premium or re-calculated ARP premium (as the case may be) determined in accordance with Regulation 9(
d
) to be applicable in respect of such an ARP coverage shall, as from the date upon which the additional ARP premium or re-calculated ARP Premium is due (as determined by the SPF manager pursuant to Regulation 9(
d
)) (if not already paid by the firm), constitute a debt due from the firm to the SPF manager as agent of all qualified insurers participating in the special purpose fund. Failing payment of the additional ARP premium or, re-calculated ARP premium within three (3) days of the relevant due date, the SPF manager shall be entitled to treat the firm as a defaulting firm for the period during which the additional ARP premium or re-calculated ARP premium remains outstanding, such that the ARP premium for that firm for that period shall be calculated in accordance with Regulation 13(
e
).
(
h
) Every firm that applies to enter the assigned risks pool shall provide to the SPF manager such information as the SPF manager may from time to time in its discretion reasonably require to progress the firm’s application for entry to the assigned risks pool and otherwise to deal efficiently and effectively with the firm’s membership of the assigned risks pool.
(
i
) Every firm to which this Regulation 9 applies shall be required to take all reasonable steps to ensure that the firm receives an acknowledgement in writing of receipt by the SPF manager of its application, pursuant to this Regulation 9, to enter the assigned risks pool within ten (10) working days of the date of despatch of such application by or on behalf of the firm, and where no such acknowledgement in writing is received within ten (10) working days of such date, the application shall be deemed never to have been made, and the firm shall be required to re-apply in accordance with the provisions of Regulation 9.
(
j
) An ARP eligible firm that has applied in the manner prescribed by these Regulations to enter the assigned risks pool will be issued by the SPF manager with an ARP coverage.
(
k
) An ARP eligible firm may apply to enter the assigned risk pool within 60 (sixty) days immediately following the expiry of its most recent coverage period.
(
l
) The provisions of Regulation 9(
k
) are a dispensation solely in relation to the time limits for making an application to join the assigned risks pool and such provisions shall not in any way relieve a firm of any requirement of these Regulations to establish or maintain qualifying insurance.
10. Operation of ARP Coverage
(
a
) The period of coverage under each ARP coverage shall commence:—
(i) in the case of a firm that applies to enter the assigned risks pool prior to the commencement of an indemnity period, from the start of that indemnity period;
(ii) in the case of a firm that applies to enter the assigned risks pool during an indemnity period, from the date specified in the firm’s application, but that date may not be earlier than the date upon which the application was made, and no ARP coverage may provide retrospective cover.
(
b
) The period of coverage under each ARP coverage shall terminate on the earliest to occur of the following dates:—
(i) the date upon which the relevant indemnity period ends;
(ii) the date upon which the firm obtains qualifying insurance outside the assigned risks pool; or
(iii) the date when the firm ceases to be an ARP eligible firm.
(
c
) Every firm that holds ARP coverage shall be required to report or notify any claim or circumstance required to be reported or notified pursuant to its ARP coverage to the SPF manager within any time prescribed therefor under that ARP coverage.
(
d
) Without prejudice to the generality of Regulation 17(
a
), every principal of a firm to which these Regulations apply shall be responsible for ensuring:—
(i) that the firm applies to enter the assigned risks pool within the time limits and in the manner required under these Regulations;
(ii) that the firm pays any premium due in respect of an ARP coverage to the SPF manager promptly when due;
(iii) that the firm takes steps to ensure that it is provided with an acknowledgement of its application to enter the assigned risks pool when required to do so under these Regulations; and
(iv) that the firm makes any notifications or reports required by these Regulations to be made pursuant to its ARP coverage in a timely manner.
(
e
) The SPF manager shall make arrangements to procure that a qualified insurer shall be reimbursed in respect of insurer reimbursement claims and shall ensure that the amount of such reimbursement is equal to the sums paid by that qualified insurer in respect of the relevant claim, provided however that the amount of such reimbursement shall be without prejudice to any sums to be paid by the qualified insurer following a demand being made by the SPF manager, pursuant to the qualified insurers agreement, for the purposes of settling liability in respect of the relevant claim. No qualified insurer shall be entitled to such reimbursement unless that qualified insurer can demonstrate, to the reasonable satisfaction of the SPF manager, that it has acted in a commercially reasonable manner and as though recourse to the assigned risks pool is not available to it and has used its best efforts to obtain reimbursement of amounts paid by it pursuant to its rights under clause 7.2 of the minimum terms and conditions.
11. Membership of the Assigned Risks Pool
(
a
) A firm that has been issued with an ARP coverage but that is no longer an ARP eligible firm shall be required, as from the date upon which it ceases to be an ARP eligible firm, to establish and maintain qualifying insurance with a qualified insurer in accordance with Regulation 3(
a
) and if it fails to do so, it shall be required to cease its practice.
(
b
) A firm may leave the assigned risks pool at any time after it has provided to the Law Society such evidence as the Law Society may require that it has obtained qualifying insurance from a qualified insurer that satisfies the provisions of these Regulations for at least the remainder of the then-current indemnity period.
(
c
) Where a firm applies for membership of the assigned risks pool but is not permitted to enter the assigned risks pool, that firm shall be required to indemnify the Law Society, the SPF manager and the SPF management committee on demand in respect of any costs, fees, expenses, losses or liabilities incurred by the Law Society, the SPF manager and the SPF management committee in relation to its application.
12. Variation of the Minimum Terms and Conditions in respect of cover granted by the Assigned Risks Pool
(
a
) The minimum terms and conditions to apply in respect of ARP coverage are amended to the extent that claims made by financial institutions shall not be covered by the ARP, with the exception of a claim made by a financial institution in respect of a residential property transaction where:—
(i) the relevant firm was first instructed to provide legal services in respect of that transaction on or after the operative date; and
(ii) the relevant firm was deemed to be or found to be in compliance with the minimum common risk management standard in accordance with Regulation 16 prior to the commencement of the provision of the legal services.
(
b
) The PII committee may from time to time publish model terms and conditions to apply to ARP coverage, which shall when published constitute the minimum terms and conditions applicable to such coverage.
(
c
) The provisions of Regulation 12(
a
) may, from time to time, be cancelled or varied by the PII committee in its sole discretion and for such period as it may, in its sole discretion, determine.
(
d
) The PII committee may, in its sole discretion and for such period as it may, in its sole discretion, determine, impose an aggregate limit on the ARP’s liability for claims in respect of any one firm in any one indemnity period and such limit shall, unless otherwise determined by the PII committee, be €1,500,000 (one million five hundred thousand euro).
(
e
) Any limit or exclusion imposed by the PII committee in accordance with Regulation 12(
d
) shall not apply in respect of defence costs, save that in such cases ARP coverage will apply proportionate liability for defence costs in accordance with clause 3 of the minimum terms and conditions.
(
f
) If a claim is made that would otherwise exceed the limit of liability, as imposed by the PII committee in accordance with Regulation 12(
d
), whether on its own or in aggregate with prior or concurrent claims, the ARP will be liable only for the amount of such claim that does not exceed the limit prescribed thereunder by the PII committee.
13. Defaulting Firms
(
a
) The SPF manager shall make arrangements to ensure that a defaulting firm is covered in respect of any period in which such a firm does not hold qualifying insurance with a qualified insurer and has not applied to enter the assigned risks pool and been issued by the SPF manager with an ARP coverage, and such arrangements shall procure that a defaulting firm in respect of which the arrangements apply is covered in respect of all claims and circumstances where coverage would have extended pursuant to the minimum terms and conditions as varied by or pursuant to these Regulations.
(
b
) Every defaulting firm shall be liable to pay to the SPF manager the ARP default premium in respect of any coverage arranged in respect of its practice or former practice pursuant to Regulation 12(
c
)(
a
).
(
c
) The SPF manager on behalf of qualified insurers shall be entitled to recover from each and every principal in a defaulting firm all amounts paid in or towards the discharge of a claim and defence costs pursuant to arrangements made under Regulation 12(
c
)(
a
), together with interest thereon at two percent (2 %) over the base lending rate of the European Central Bank from time to time.
(
d
) A defaulting firm may, at the discretion of the PII committee, be required to cease its practice unless it obtains qualifying insurance from a qualified insurer outside the assigned risks pool.
(
e
) The amount of the ARP default premium payable by:—
(i) any firm designated as a defaulting firm pursuant to Regulation 9(
f
); or
(ii) any defaulting firm in respect of which arrangements pursuant to Regulation 12(
c
)(
a
) are made from time to time;
shall be calculated by the SPF manager in accordance with the ARP premium schedule determined by the PII committee from time to time.
14. Insolvency of Qualified Insurers and Other Events
(
a
) Where a firm has established qualifying insurance with a qualified insurer or a number of qualified insurers in accordance with Regulation 3, and an insolvency event or non-performance event occurs in respect of that qualified insurer or one (1) or more of those qualified insurers, as the case may be, the firm shall, as soon as reasonably practicable and in any event within 30 (thirty) working days after the date upon which such insolvency event or non-performance event occurs (but not counting the date upon which such event occurs):—
(i) establish and maintain in place qualifying insurance with a qualified insurer or qualified insurers that is or are unaffected by an insolvency event or non-performance event; or
(ii) where it is an ARP eligible firm, apply under Regulation 9 to enter the assigned risks pool.
(
b
) A firm to which Regulation 14(
a
) applies shall provide to the Law Society such evidence that it has established and is maintaining qualifying insurance or that it has applied to enter the assigned risks pool, as the Law Society may from time to time require.
(
c
) Without prejudice to the generality of Regulation 14(
b
), a firm shall be required to provide to the Law Society, or procure that there is provided to the Law Society on its behalf, confirmation in any form designated by the Law Society that it has established and is maintaining qualifying insurance or that it has applied to enter the assigned risks pool within 30 (thirty) working days of the insolvency event or non-performance event that gives rise to the obligation to establish and maintain qualifying insurance pursuant to Regulation 14(
a
).
(
d
) Without prejudice to the generality of Regulation 17(
a
), every principal of a firm to which these Regulations apply, shall be responsible for ensuring:—
(i) that the firm has established and maintains in place qualifying insurance following the occurrence of an insolvency event or a non-performance event in respect of its former qualified insurer or qualified insurers, with a qualified insurer or qualified insurers that is or are unaffected by such an event, or that it applies to enter the assigned risks pool; and
(ii) that the firm provides any evidence that the firm has established and is maintaining qualifying insurance or that it has applied to enter the assigned risks pool following the occurrence of an insolvency event or a non-performance event in respect of its former qualified insurer or qualified insurers as may be required under or pursuant to these Regulations in a timely manner.
15. Risk Management Audits
(
a
) A firm that enters or that seeks to enter the assigned risks pool shall be required to submit to and co-operate with a risk management audit to be conducted by a risk management auditor selected and appointed by the SPF management committee at such times and at such intervals during the firm’s membership of the assigned risks pool as the SPF management committee may in its absolute discretion determine.
(
b
) Every principal of a firm to which Regulation 15(
a
) applies shall be responsible for ensuring that the firm submits to and co-operates with any risk management audit that is directed by the SPF management committee in relation to the firm’s practice pursuant to Regulation 15(
a
).
(
c
) Where the SPF management committee directs that a risk management audit is to be carried out in relation to the practice of a firm, every principal of that firm shall be responsible for ensuring that the risk management auditor appointed to carry out the risk management audit is afforded every possible facility to carry out the following tasks:—
(i) to attend at any place or places where the firm engages in its practice and, for the avoidance of doubt, any place or places where the firm may store its records (including electronic records) in relation to matters it is involved in;
(ii) to interview any principal of the firm and such other persons employed by or associated with the firm as the risk management auditor deems necessary and appropriate;
(iii) to inspect such documents relating to the practice of the firm as the risk management auditor deems necessary and appropriate; and
(iv) to provide the risk management auditor with access to all electronic records maintained by or on behalf of the firm and to all computer or electronic communication systems operated by the firm and relating in either case to the practice of the firm.
(
d
) Every principal of a firm to which this Regulation 15 applies shall direct all persons employed by the firm and any relevant third party (to the extent that it is possible for that principal to do so) to facilitate and provide all necessary assistance to the risk management auditor in reviewing any documents referred to in Regulation 15(
c
)(iii) and any records or systems referred to in Regulation 15(
c
)(iv).
(
e
) It shall be misconduct for any principal of a firm, or any solicitor or registered lawyer employed by a firm to which this Regulation 15 applies to fail to attend at any interview with a risk management auditor of which not less than two (2) working days notice has been given to that person, or to fail to provide a risk management auditor with access to documents, records or computer or communication systems within two (2) working days of a request in that regard being made to such principal, solicitor or registered lawyer by a risk management auditor pursuant to these Regulations.
(
f
) Where the SPF management committee directs that a risk management audit is to be carried out in relation to the practice of a firm, that firm shall be required to indemnify the Law Society (or as the Law Society may direct) on demand in respect of any costs, fees, expenses, losses or liabilities incurred by the Law Society in relation to the conduct of that risk management audit, and every principal of that firm shall be responsible for ensuring that the firm discharges its liabilities to the Law Society under Regulation 15.
(
g
) Where a firm fails to comply with any provision of this Regulation 15, the SPF management committee may direct that such firm shall no longer be treated as an ARP eligible firm, and may further direct that any successor firm to such a firm shall not be an ARP eligible firm.
16. Risk Management Audit Reports
(
a
) A risk management auditor who conducts a risk management audit in relation to a firm shall, as soon as practicable thereafter, furnish a written risk management audit report to the SPF manager and to the SPF management committee. The report shall include an opinion from the risk management auditor as to whether the firm is in compliance with the minimum common risk management standard in the indemnity period in which the risk management audit is carried out.
(
b
) The SPF management committee shall, on receipt of a risk management audit report, provide a copy thereof to the firm concerned and shall invite such firm to provide any written response thereto to the SPF management committee within ten (10) working days of receipt by the firm of such risk management audit report.
(
c
) Following receipt by the SPF management committee of the written response (if any) of a firm the subject of a risk management audit report or (failing any such written response) at any time after the expiry of the relevant time period for such firm to provide a written response, the SPF management committee may provide the firm concerned with a written direction indicating:—
(i) which of the risk management audit recommendations are to be binding on the firm, and any such direction made by or on behalf of the SPF management committee shall be binding upon the firm immediately upon such direction being made by the SPF management committee and the firm shall forthwith take steps at its own expense to comply with any such direction; and
(ii) whether the opinion of the risk management auditor as to whether the firm is in compliance with the minimum common risk management standard is to be binding on the firm and any such direction made by or on behalf of the SPF management committee shall be binding upon the firm immediately upon such direction being made by the SPF management committee.
(
d
) At any time following the receipt by the SPF management committee of the written response (if any) of a firm the subject of a risk management audit report or (failing any such written response) at any time after the expiry of the relevant time period for such firm to provide a written response, the SPF management committee may, on giving not less than two (2) working days notice, require any principal of such firm to attend before it to respond to such questions and to provide such information or to produce such documents regarding the management of the practice of the firm as may appear appropriate to the SPF management committee.
(
e
) At any time following the receipt by the SPF management committee of the written response (if any) of a firm the subject of a risk management audit report or (failing any such written response) at any time after the expiry of the relevant time period for such firm to provide a written response, the SPF management committee may take any one (1) or more of the following measures:—
(i) direct the firm concerned to comply with such measures within such time period as the SPF management committee may deem appropriate and reasonable to avoid or mitigate the risk of claims in respect of civil liability arising from the practice of the firm, and such measures may be more extensive than any risk management audit recommendations, and the firm shall forthwith take steps at its own expense to comply with any such direction;
(ii) instruct any risk management auditor to assist and supervise the firm concerned or any principal of the firm or any solicitor or registered lawyer employed by the firm and to report to the SPF management committee as appropriate in relation to compliance by the firm, principal, solicitor or registered lawyer concerned with any measures directed by the SPF management committee pursuant to Regulation 16(
e
)(i);
(iii) commission any further inquiry into the affairs of the firm concerned to be made as to the SPF management committee may appear appropriate and necessary to permit the SPF management committee properly to assess the prevailing state of management of that firm;
(iv) conclude that the circumstances of the state of management of the firm concerned as disclosed by a risk management audit report, or by any subsequent report or investigation directed by the SPF management committee to be undertaken are such that it is not appropriate and reasonable that the firm should be provided or continue to be provided with ARP coverage by the assigned risks pool and may in consequence decide, on not less than two (2) working days notice in writing to the firm concerned, to declare that the firm in question shall no longer be an ARP eligible firm and shall be treated thenceforth as a defaulting firm.
(
f
) Where the SPF management committee takes any step pursuant to Regulation 16(
e
)(ii) or Regulation 16(
e
)(iii) in relation to the practice of a firm, that firm shall be required to indemnify the Law Society (or as the Law Society may direct) on demand in respect of any costs, fees, expenses, losses or liabilities incurred by the Law Society in relation to the steps taken, and every principal of that firm shall be responsible for ensuring that the firm discharges its liabilities to the Law Society under this Regulation 16(
f
).
(
g
) The PII committee may in its discretion and on such terms and conditions as it deems appropriate:—
(i) permit the Law Society to use any risk management audit report as the Law Society deems appropriate for the purposes of exercising any of its statutory powers and functions;
(ii) provide to qualified insurers a copy of any risk management audit report in accordance with the confidentiality provisions of the then current qualified insurers agreement.
17. Responsibilities of Principals
(
a
) Every principal of a firm to which these Regulations apply shall be responsible for ensuring that the firm complies with its obligations and responsibilities under these Regulations, and it shall be misconduct for a principal to fail to procure that the firm so complies.
(
b
) Without prejudice to the generality of Regulation 17(
a
), every principal of a firm to which these Regulations apply, and in the case of a firm that has ceased its practice every person that is or was a principal of that firm at the relevant time as determined by the PII committee in its discretion, shall be responsible for ensuring:—
(i) that the firm ceases its practice where required so to do under these Regulations;
(ii) that the firm discharges any costs, liabilities and expenses due to the Law Society under these Regulations promptly on demand; and
(iii) that the firm and each principal thereof complies with each of the responsibilities imposed upon it under Regulations 15 and 16.
(
c
) Where any firm fails to comply with any of its obligations and responsibilities under or pursuant to these Regulations, or any principal of a firm fails to comply with any of his or her obligations and responsibilities under or pursuant to these Regulations, the PII committee may take any one (1) or more of the following courses of action:—
(i) apply to the High Court for suspension of the practising certificate or qualifying certificate of any principal or former principal of that firm, or of the principal concerned, as the case may be; or
(ii) direct the Registrar to refuse to issue a practising certificate or qualifying certificate to any principal or former principal of that firm, or to the principal concerned, as the case may be; or
(iii) apply to the Disciplinary Tribunal for an inquiry into the conduct of any principal or former principal of that firm, or of the principal concerned, as the case may be, on grounds of misconduct; or
(iv) apply to the High Court for an order to prohibit any principal or former principal of that firm, or the principal concerned, as the case may be, from contravening any provision of these Regulations; or
(v) apply to the High Court for an order to require any principal or former principal of that firm, or the principal concerned, as the case may be, to perform any obligation imposed on the firm or such principal by any provision of these Regulations.
(
d
) Where the PII committee decides to take one (1) of the courses of action referred to in Regulation 17(
c
), the PII committee shall give to each affected principal or former principal of that firm, notice in writing of its intention to do so.
(
e
) The provisions of Regulation 17 are without prejudice to the designation by these Regulations as misconduct of any particular act or omission by a solicitor or a registered lawyer, or to any other right or power given under these Regulations, under the Acts or under any instrument made under or pursuant to the Acts to the PII committee or to the Law Society.
18. Professional Indemnity Insurance Committee
(
a
) The Council shall, as soon as practicable after the coming into operation of these Regulations, appoint a professional indemnity insurance committee which shall be responsible for exercising on behalf of the Council the functions vested in:—
(i) the Law Society by or under
section 26
of the
Solicitors (Amendment) Act 1994
; and
(ii) the PII committee by or under these Regulations; and
(iii)(to the extent that the 1995 Regulations remain in force by virtue of these Regulations) the committee constituted under the 1995 Regulations and designated as the PII committee thereunder by or under the 1995 Regulations; and
(iv)(to the extent that the 2007 Regulations remain in force by virtue of these Regulations) the committee constituted under the 2007 Regulations and designated as the PII committee thereunder by or under the 2007 Regulations,
save in each case for the making of regulations.
(
b
) The Council shall from time to time in its discretion determine the number of members of the PII committee and appoint the members thereof and may, in its sole discretion and for such period as it may determine, retain as members of the PII committee each or any of the members of the PII committee in place at the coming into operation of these Regulations.
(
c
) The quorum of the PII committee shall be three (3).
(
d
) The PII committee may establish sub-committees to carry out some or all of its functions, or delegate some or all of its functions to an executive of the Law Society, the SPF management committee or the SPF manager.
(
e
) The PII committee shall exercise on behalf of the Council the following functions of the Law Society:—
(i) making recommendations, issuing guidance or giving directions on behalf of the Law Society in relation to the management, administration and protection by the SPF manager of the special purpose fund;
(ii)(without prejudice to the generality or specificity of any Regulation) directing steps necessary or expedient to be taken to ascertain whether these Regulations or the provisions of the 2007 Regulations are being complied with;
(iii) specifying circumstances in which any solicitor or registered lawyer or specified category of solicitors or registered lawyers may be exempted in whole or in part from compliance with these Regulations or the 2007 Regulations;
(iv) specifying the manner in which solicitors or registered lawyers or any specified category of solicitors or registered lawyers shall bring their compliance with, or exemption from, these Regulations or the 2007 Regulations to the notice of their clients or the Law Society;
(v) determining whether a perceived breach of section 26(6) of the Solicitors Act, 1994 or of these Regulations or of the 2007 Regulations by a solicitor or registered lawyer should be the subject of an application by the Law Society to the Disciplinary Tribunal for an inquiry into the conduct of that solicitor or registered lawyer on the ground of alleged misconduct;
(vi) making decisions in relation to matters (including procedural matters) deemed to be in pursuance of or incidental or supplementary to the functions vested in the Law Society under
section 26
of the
Solicitors (Amendment) Act 1994
or in pursuance of or incidental or supplementary to the provisions of these Regulations or of the 2007 Regulations.
(
f
) The PII committee shall, at least once in every calendar year, review the minimum terms and conditions and shall recommend to the Law Society any amendments thereto as to the PII committee appear appropriate.
(
g
) The PII committee shall be entitled to appoint the SPF manager to discharge the functions and responsibilities of
(i) the person or entity appointed as pool manager under the 1995 Regulations to the extent that those regulations remain in effect by virtue of these Regulations; and
(ii) the person or entity appointed as ARP manager under the 2007 Regulations to the extent that those regulations remain in effect by virtue of these Regulations.
(
h
) The PII committee shall from time to time and in its sole discretion issue rules regulating the conduct of coverage disputes and any rules (or part thereof) issued by the PII committee under this Regulation 18(
h
) shall be binding upon a qualified insurer and a firm immediately upon such rules being made by the PII committee and each qualified insurer and each firm shall forthwith take steps at its own expense to comply with any such rules.
19. SPF Management Committee
(
a
) The PII committee shall, as soon as practicable after the coming into operation of these Regulations appoint a special purpose fund management committee which shall be responsible for exercising the functions vested in
(i) the SPF management committee by or under these Regulations; and
(ii) any functions delegated to it by the PII committee pursuant to Regulation 18.
(
b
) The number of members of the SPF management committee shall be five (5).
(
c
) The members of the SPF management committee shall be appointed by the Law Society and shall comprise the SPF manager, two (2) representatives of the Law Society and one (1) representative of each of the two (2) qualified insurers with the largest relevant premium income for that indemnity period as calculated in accordance with Schedule 2 of the qualified insurers agreement.
(
d
) The SPF management committee shall provide a quarterly report to the PII committee summarising its activities and the decisions it has taken in the previous quarter. The SPF management committee shall receive and consider any comments that the PII committee may have on any such report.
20. Provision of Information and Co-Operation with Qualifying Insurers and SPF Manager
(
a
) If a person asserts a claim against a firm or any person insured under that firm’s qualifying insurance and the claim relates to a matter within the scope of coverage under the minimum terms and conditions, that firm and every principal thereof (including, in the case of a firm that has ceased its practice, any former principal thereof) shall be required to provide that claimant on request with details of the identity of the qualified insurers that provided the qualifying insurance, together with any applicable coverage reference number and the relevant qualified insurers’ contact details.
(
b
) The Law Society may maintain in such form or forms as it considers appropriate a register of firms showing such details of any qualifying insurance, ARP coverage or run-off cover maintained by those firms appearing on the register as the Law Society deems fit, together with details of any firms that have not maintained such insurance and/or cover, and may permit persons to enquire as to the registered status of firms and provide persons with the information contained in the register relating to firms in such manner and to such extent as the Law Society may determine.
(
c
) The Law Society may, based on the information available to it, establish an information service to disclose certain information to qualified insurers in such a manner as it may in its absolute discretion deem fit, including the following:—
(i) on or before 31 January in each indemnity period, provide a qualified insurer with details of the identity of firms which maintained qualifying insurance with that qualified insurer in the prior indemnity period, together with the identity of the current qualified insurer (including for the avoidance of doubt, the assigned risks pool and the run-off fund) of any such firm;
(ii) from time to time, to provide a qualified insurer with details of the identity of any firm, which has had all of its principals suspended or struck off the roll.
(
d
) All firms and their principals shall extend such co-operation to the qualified insurer providing qualifying insurance or the SPF manager (as appropriate) as is required by the minimum terms and conditions. In the event that a qualified insurer or the SPF manager (as appropriate) considers that a firm or its principals have failed to extend such co-operation, the qualified insurer or the SPF manager (as appropriate) may notify the Law Society and the Law Society may take disciplinary action against the principals and the former principals of such firm as appropriate.
(
e
) In the event that a qualified insurer or the SPF manager (as appropriate) considers that a firm has failed to pay any stamp duty which the firm is liable to pay, the qualified insurer or the SPF manager (as appropriate) may notify the Law Society and the Law Society may take disciplinary action against the principals and the former principals of such firm as appropriate.
21. Amendment to Independent Law Centres Regulations
(
a
) The Solicitors Acts 1954 to 2002 (Independent Law Centres) Regulations, 2006 are hereby amended by the deletion of Regulation 8 thereof and its replacement with the following:—
“For the avoidance of doubt, an employed solicitor shall be required to comply with the Solicitors Acts 1954 to 2002 (Professional Indemnity Insurance) Regulations 2011.”
Dated this 3rd day of August 2011.
Signed on behalf of the Law Society of Ireland pursuant to
Section 79
of the
Solicitors Act 1954
.
JOHN COSTELLO,
President of the Law Society of Ireland
SCHEDULE
TABLE OF REVOCATIONS
NAME OF INSTRUMENT
EXTENT OF REVOCATION
The Solicitors Acts 1954 to 2002 (Professional Indemnity Insurance) Regulations 2007 (Statutory Instrument No. 617 of 2007)
Revoked in its entirety save that:—(i) the instrument (as subsequently amended) shall remain binding upon solicitors and registered lawyers required, prior to the operative date, by virtue of the provisions of the instrument to maintain run-off cover (as defined by the instrument) such that those solicitors and registered lawyers shall be required to continue to maintain such coverage in accordance with the terms of the instrument and that the provisions of the instrument (including provisions relating to the enforcement thereof and the penalties thereunder) shall be fully continued in effect as regards such solicitors and registered lawyers and such run-off cover; and (ii) the instrument (as subsequently amended) shall remain in effect to the extent necessary to permit the proper functioning and operation of the assigned risks pool constituted by virtue of the provisions of the instrument to permit that assigned risks pool to be administered to fulfil the terms of all coverages granted thereunder (iii) the instrument (as subsequently amended) shall remain in effect to permit the proper functioning and operation of the SMDF (as defined therein) to permit the SMDF to be administered to fulfil the terms of all coverages granted by it.
The Solicitors Acts 1954 to 2008 (Professional Indemnity Insurance) (Amendment) Regulations 2009 (Statutory Instrument No. 384 of 2009), The Solicitors Acts 1954 to 2008 (Professional Indemnity Insurance) (Amendment No. 2) Regulations 2009 (Statutory Instrument No. 441 of 2009), The Solicitors Acts 1954 to 2008 (Professional Indemnity Insurance) (Amendment) Regulations 2010 (Statutory Instrument No. 495 of 2010)
Each revoked in their entirety save that the provisions of the relevant instruments shall be continued in effect to the extent that they amend The Solicitors Acts 1954 to 2002 (Professional Indemnity Insurance) Regulations 2007 (Statutory Instrument No. 617 of 2007) in order to give effect to the provisions of this Table as they relate to the revocation of The Solicitors Acts 1954 to 2002 (Professional Indemnity Insurance) Regulations 2007 (Statutory Instrument No. 617 of 2007).
APPENDIX 1
MINIMUM TERMS AND CONDITIONS OF PROFESSIONAL INDEMNITY INSURANCE FOR SOLICITORS AND REGISTERED LAWYERS IN IRELAND
1 INTERPRETATION