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.