Posted by Steven Snowden QC · March 29, 2021 2:45 PM
1. Contractual terms proposed by solicitors / GDPR / BMIF indemnity
It has come to PIBA’s notice that some firms of solicitors are again seeking to introduce contractual terms which could expose PIBA members to uninsurable liabilities. In particular, terms which
(i) provide that the barrister will indemnify the solicitor in respect of (potentially unlimited) losses to the solicitor arising from breaches of the contract, including breaches of GDPR; and
(ii) provide that the barrister is a data processor.
The Bar Council has previously given clear advice that:
1. It is each individual barrister’s responsibility to ensure that bespoke contractual terms do not leave the barrister exposed to liabilities which are not covered by BMIF, and that practising without full insurance may amount to professional misconduct.
See the BC’s Standard Contractual Terms Guide: https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/Contractual-Terms-Guide-202003.pdf
It is PIBA’s current understanding that BMIF will not cover a barrister in respect of a contractual liability unless it would have arisen in law in any event or it was incurred under a contract which was in a form which had previously been approved by BMIF. See the exclusion at Clause 3.1(x)(b) of the BMIF’s Terms of Cover.
The Bar Council’s standard contractual terms are here:https://www.barcouncilethics.co.uk/documents/contractual-terms/
PIBA is aware that BMIF have previously approved contractual terms devised by COMBAR (https://www.combar.com/about-us/contractual-terms/) which provide for an indemnity for up to £100,000 and it is understood that several chambers have agreed the use of these terms when the issue of contractual indemnities has arisen.
2. Self-employed barristers will normally be data controllers, not data processors; it will not normally be appropriate for self-employed barristers to sign an agreement to be regarded as data processors for work carried out in the normal course of practice; and it may be in conflict with a barrister’s duties under the Code of Conduct. See:
An individual’s status in respect of GDPR will be relevant to the obligations which they must meet, and the fines or penalties to which they may be exposed. It is PIBA’s current understanding that BMIF will not indemnify barristers in respect of anything which is a penalty or a fine.
These are potentially very serious issues, and we strongly encourage all PIBA members, their Heads of Chambers and their clerks to check, and fully understand, the terms on which they are undertaking work.
2. Chair’s update
The 25th PIBA AGM took place on 18th March. The link to the AGM Minutes is here (you will need to be logged in) and they provide a useful update on what PIBA has recently been doing. Please read them. And please don’t hesitate to communicate with us directly or through the circuit reps.
Posted by Steven Snowden QC · December 21, 2020 12:27 PM
This is not a normal Christmas email or end of term letter, but I do want to bring you up to date with what PIBA has done as 2020 draws to a close and what we will be doing in 2021.
We have not yet completely abandoned hope of keeping our Annual Conference as an in-person event in Oxford, over the weekend of 27th and 28th March 2021, but we are holding lightly to that prospect. We have a terrific line-up of speakers in place and, if regulations relax significantly and vaccination becomes widespread, I would dearly like to return to holding the event in person. I’ve missed the weekend of meeting friends, colleagues and opponents, learning together and enjoying each other’s company. If it can’t happen in person, we will roll out as many of the sessions as possible remotely, as we did this year.
We have had a year of online continuing education seminars of astonishing quality and quantity. Thanks are due to all our speakers and to those who devoted so many hours behind the scenes to setting them up and running them. Our Annual Richard Davies Lecture, given in November by Justice Basten, is now available on our web pages in video form, as is the text of his lecture. We are very grateful to him. Do look at the PIBA webpage and watch out for emails about our seminars in 2021.
Our most recent seminar was given by Russell Wallman of Queen’s Counsel Appointments, and I hope you will find what he said about the application process helpful. We continue in dialogue with QCA to help them understand what their standard of excellence looks like, in real terms, in our area of practice.
On that subject, commiserations to those who were unsuccessful in this year’s competition but huge congratulations go to James Arney, Judith Ayling, John Coughlan, Andrew Davis, Emily Formby, Farrah Mauladad, Nick Moss, Rachel Vickers, Paddy Vincent and Angus Withington - all of whom are PIBA members who were successful this year and will take silk in 2021. Apologies if I have missed out any other PIBA members.
PIBA have tried to work with the Bar Council this year through all the effects of covid and lockdowns. Derek Sweeting QC, a former member of the PIBA EC, takes up the reins as Chair of the Bar for 2021. We wish him well and look forward to working closely with him. High on our agenda for next year will be trying to get the level of fees for FT and similar hearing, which were set years ago, raised for inflation and index-linked going forwards. Also trying get some recognition of abated brief fees and aborted hearing costs within the fixed fee regime. And continuing to feed back about what is working well or badly about remote hearings. And keeping an eye on how extended or flexible operating hours are deployed in response to covid backlogs, while opposing them in principle as a way of working in the future.
PIBA’s Honorary President, Sir Stephen Irwin, has retired from the Court of Appeal this year. His outstanding career at the Bar and on the Bench came to a fitting end with his ground-breaking judgment in Swift v Carpenter. We wish him well in his retirement and are grateful that he has agreed, pro tem, to remain our Honorary President. One of our Honorary Vice-Presidents, Edis J, has been elevated to the Court of Appeal in his place and we wish him every joy and success there. We are delighted also to see that Siobhan Kelly, a former member of the PIBA EC, has been appointed as a Specialist Civil Judge in Leeds.
PIBA simply wouldn’t work as a Specialist Bar Association without the hours which are put in by EC members and other volunteers, and we are indebted to them all.
I hope you have as good a Christmas and New Year as is possible this year, and look forward to meeting when we can next year.
Steven Snowden QC
Posted by Steven Snowden QC · October 09, 2020 10:38 AM
The Court of Appeal has handed down its much-anticipated judgment in Swift v Carpenter this morning, in respect of accommodation capital costs and the Roberts v Johnstone principle.
PIBA intervened in the appeal to try to ensure that the Court considered as many possible factual situations as possible, as many potential outcomes as possible, and that a decision of principle might be delivered which can be applied in other cases.
We are hugely grateful to Darryl Allen QC (former PIBA Chair) and Richard Whitehall, who appeared for us pro bono on the appeal. And to Simpson Millar who acted as our solicitors on the same basis.
They will both be speaking on a Webinar - for PIBA members and their pupils only - at 4pm on Wednesday next week, 14th October. Details of how to join that webinar will be published on the PIBA web page here.
Steven Snowden QC
Posted by Steven Snowden QC · August 07, 2020 4:35 PM
Dear PIBA Members
I am writing to update you on what PIBA has done, is doing, and some future developments.
1. Covid-19 / courts lockdown / extended operating hours
We know the last four months have been incredibly difficult for many.
We have been heavily involved, working with the Bar Council, in lobbying HMCTS and the judiciary to get more Court work listed again. Our position throughout has been that that should be achieved by maximising physical court use as much as is reasonably safe; using telephone and video technology as much as possible; calling up DDJs, Recorders and Deputy High Court Masters and Judges to tackle the backlog; and improving co-operation between courts and practitioners so that listing is effective. There are a number of working groups and committees currently considering aspects of this, some reporting directly to the senior judiciary, some under HMCTS, and some within the Bar Council. We have representation on all those which might have any impact on our area of work.
Thank you for responding to our short-notice survey, if you did. That gave us very useful information to put before the civil EOH working group, chaired by HHJ Godsmark QC, on which Sarah Lambert QC represents PIBA and civil practitioners.
Its report has gone to the senior judiciary, whose response is awaited, but we can share its conclusions which are that for civil hearings: (i) capacity for in-person hearings in courtrooms is increasing; (ii) the need for a nationwide roll-out of EOH as a result of Covid is not made out; (iii) EOH should however be made available as a recovery tool to be deployed by DCJs where they consider it is needed and where it can be made to work; (iv) feasibility should be determined locally taking account of court resources and need and after discussion with practitioners; (v) DCJs should be able to set targets of backlog cases to be heard, and stop the use of EOH when those targets are met.
I attended a meeting with the Chair of the Bar and HMCTS this week at which that position was broadly confirmed.
We remain acutely aware of the risk that EOH may be used as a Trojan Horse to introduce flexible operating hours on a long-term basis. And of the competing considerations of, on the one hand, the obvious practical problems and discriminatory effect of EOH and, on the other, the need for many junior practitioners to make up for the desperate shortfall in work over the last few months. But we are optimistic that a proposal which places decisions in the hands of local DCJs (rather than HMCTS), which involves consultation with practitioners, and which would be time-limited, might strike the right balance.
2. Remote hearings and CVP
HMCTS are in the process of rolling out CVP as the standard platform for remote hearings in civil work. We will be setting up a CVP training session with them for PIBA members. Useful though the technology is, important questions remain over the extent of use of remote hearings in the future, after in-person hearings resume. Emily Formby is representing PIBA interests on the Bar Council’s Civil Remote Working Group which will deal with this.
3. Swift v Carpenter
The Court of Appeal has reserved judgment on this crucial case concerning accommodation loss claims and the Roberts v Johnstone approach. PIBA’s neutral submissions were heard as intervening party. We do not yet have an expected date for judgment but Darryl Allen QC (who appeared for PIBA) will present a webinar on it for PIBA members as soon as judgment is out.
4. PIBA Guide to Pension Loss Calculation
James Rowley QC, Matthew White and a small team of PIBA members have written a unique, comprehensive and very practical guide to pension loss and its calculation. Copies will be distributed free to all PIBA members through your chambers after the summer. Templates for calculations are available on the PIBA website using the link in the book. Irwin LJ says in his introduction that it will become indispensable. I wholeheartedly agree.
5. Continuing education and webinars
The unfortunate cancellation of the 2020 Oxford Annual Conference directly led to the fantastic series of PIBA webinars since March which I hope you have all enjoyed. Attending live allowed you to put questions, but they have been recorded and are all available to members on the PIBA web pages. Huge thanks are due to each and every one of our speakers, and to Hannah Saxena and Marcus-Coates-Walker who ran the series behind the scenes and without whom it would not have happened. We will be continuing to do our education seminars by webinar from now on. Coming up in the autumn will be sessions on amputation claims, the Animals Act, Swift v Carpenter (see above) and others. Details will be on the PIBA website.
6. The PIBA Annual Richard Davies Lecture 2020
In light of continuing Covid concerns, and the unlikelihood of being able to gather in large numbers even by November, we have had to take the decision to make this year’s Annual Lecture a remote one. However that has given us the opportunity to consider a wider range of speakers, and we are delighted that the Honourable Justice Basten of the Supreme Court of New South Wales, formerly an eminent academic with an outstanding career at the Australian Bar, has agreed to deliver this year’s lecture on 10th November 2020. Further details will follow in due course.
7. Northern Conference and London Winter Conference
For the same reasons as for the Annual Lecture, we have taken the decision not to hold these events later this year. They will however return in autumn/winter 2021.
8. Annual Oxford Conference 2021
Please put a date in your diary now for the weekend of Friday 26th to Sunday 28th March 2021. After the enforced cancellation this year we are optimistic of being able to return to St Catherine’s College in Oxford for the PIBA weekend next year. Planning is well under way, with some contingency planning for such Covid restrictions as might still be in place by then.
9. Legal Services Board Consultation
Thanks are due to John Meredith Hardy who wrote PIBA’s robust response to the LSB’s proposal for further regulation of our profession. He identified very clearly the ways in which – at least in our area – we are already highly regulated and subject to market forces and to public and judicial scrutiny of how we work, such that no further consumer protection measures are necessary.
10. Discount on Facts & Figures
You should already have received an email from PIBA about the discount we have negotiated with Sweet & Maxwell on Facts & Figures. Please use it, and we will endeavour to obtain further discounts on other practitioner texts.
11. What’s next?
Covid, the lockdown and our response to it have dominated PIBA’s work over the last few months. As we (we hope) continue to ease out of lockdown, there will be work to be done on behalf of all of us at the PI Bar in dealing with the backlog of hearings, dealing with Extended and Flexible Operating Hours, and trying to extract and keep the best aspects of remote working which have been forced upon us in the last few months while regaining the benefits of in-person hearings, JSMs and conferences. Also on PIBA’s radar are ethics guidance (including referral fees) and how PI practitioners fare in the QC appointment system.
I am enormously grateful to all the members of the PIBA EC who have been working on behalf of us all over the last few months. I wish them, and you, a relaxing summer and hope you can enjoy time off with family and friends.