S.I. No. 115/2004 - The Solicitors Acts 1954 To 2002 (Professional Indemnity Insurance) (Amendment) Regulations, 2004

The Solicitors Acts 1954 to 2002 (Professional Indemnity Insurance) (Amendment) Regulations, 2004

Citation and Construction

1. (a)  These Regulations may be cited as The Solicitors Acts, 1954 to 2002 (Professional Indemnity Insurance) (Amendment) Regulations, 2004.

(b)  These Regulations and The Solicitors Acts, 1954 to 1994 (Professional Indemnity Insurance) Regulations, 1995 ( S.I. No. 312 of 1995 ), the Professional Indemnity Insurance (Amendment) Regulations, 1998 ( S.I. No. 209 of 1998 ) and The Solicitors Acts, 1954 to 1994 (Professional Indemnity Insurance) (Amendment) Regulations, 1999 ( S.I. No. 362 of 1999 ) shall be construed as one and may be cited as The Solicitors Acts, 1954 to 2002 (Professional Indemnity Insurance) Regulations, 1995 to 2004.

(c)  In these Regulations—

“1995 Regulations” means The Solicitors Acts, 1954 to 1994 (Professional Indemnity Insurance) Regulations, 1995 ( S.I. No. 312 of 1995 );

“2001 Regulations” means The Solicitors Acts, 1954 to 1994 (Euro Changeover) Regulations, 2001 ( S.I. No. 504 of 2001 ).

(d)  These Regulations shall come into operation on the 1st day of June 2004.

Amendment to definition of “qualified insurer”

2. Regulation 2 of the 1995 Regulations is hereby amended by the substitution of the following for the definition of “qualified insurer” therein set forth:

“ ‘qualified insurer’ has the meaning assigned to it in Regulation 5, and, for the purposes of a solicitor complying with Regulation 4(a) and the Society complying with Regulation 14, may include—

(a)  an agent acting on behalf of a qualified insurer, or

(b)  the lead qualified insurer, where there is more than one qualified insurer concerned.”

Where qualified insurer uses best endeavours

3.  The 1995 Regulations are hereby amended by the insertion of the following after Regulation 5:

“5A Without prejudice to the generality of Regulation 5 and the terms of the Assigned Risks Pool Participation Agreement, a qualified insurer shall use best endeavours—

(a)  to provide, as soon as practicable after being requested to do so (and after being provided with such information as may be appropriate and reasonable for thai purpose) by or on behalf of a solicitor seeking the minimum level of cover the amount of the premium that would be payable by the solicitor for such cover; and

(b)  to provide to each solicitor to whom the qualfied insurer is currently providing the minimum level of cover, at least twenty-one days prior to the end of the period of the current cover, written notice of the amount of the premium being sought by the qualified insurer for the renewal of the minimum level of cover.”

Increase in maximum self-insured excess

4.  Regulation 6 of the 1995 Regulations and Form 1 in the Schedule thereto, both as amended by Regulation 3(c) of the 2001 Regulations, are hereby amended by the substitution of “€10,000” for “€6,500” in sub-clause (b)(i) of the said Regulation 6 and in Form 1, recital (xv)(A), in the said Schedule.

Amendment to Regulation 8 of 1995 Regulations

5.  Regulation 8 of the 1995 Regulations is hereby amended by the substitution of the following for clause (c) thereof:

“(c) Where a solicitor has applied for admission to the Assigned Risks Pool, the PII Committee may provisionally admit the solicitor to the Assigned Risks Pool and may decide on an interim basis that the minimum level of cover should be provided to the solicitor through the Assigned Risks Pool with effect from such date as the PII committee may decide pending final determination by the PII Committee that the solicitor is eligible pursuant to clause (a) of this Regulation for admission to the Assigned Risks Pool.”

Increase in premium deposit payable within Assigned Risks Pool

6.  Regulation 9 of the 1995 Regulations is hereby amended by the substitution of “300 per cent” for “200 per cent” therein.

Increase in maximum cost of Risk Mangement Audit

7.  Regulation 9 of the 1995 Regulations and Form 4 in the Schedule thereto, both as amended by Regulation 3(d) of the 2001 Regulations, are hereby amended by the substitution of “€7,500 (plus Value Added Tax)” for “€2,600” therein.

Amendment to Regulation 10 of 1995 Regulations

8.  Regulation 10 of the 1995 Regulations is hereby amended by the addition of the following after clause (d) thereof:

“(e)  (i)  Where a solicitor, who is admitted or provisionally admitted to the Assigned Risks Pool pursuant to Regulation 8, refuses, neglects or otherwise fails to duly comply with one or more of the requirements set forth in Regulation 9, the PII Commitee may, on giving at least 14 days prior written notice to the solicitor and to the Registrar, proceed to decide that the solicitoir be discharged from the Assigned Risks Pool with effect from such future date (not being less than 28 days after such decision) as the PII Committee shall specify and shall notify as soon as practicable to the solicitor.

(ii)  In relation to a solicitor to whom sub-clause (i) of this clause applies, the PII Committee may, on the application of the Registrar and in lieu of discharging the solicitor from the Assigned Risks Pool, permit the Registrar, on the Registrar confirming to the PII Committee that the Registrar has given or caused to be given at least 14 days prior written notice to the solicitor to that effect, to fulfil the requirements of Regulation 9 (or such of the requirements thereof as have not been complied with by the solicitor) on behalf of and in the name of the solicitor; provided that where, in the fulfilling of such requirements by the Registrar on behalf of the solicitor, the Society incurs expenditure (whether directly or out of the Compensation Fund), the Society may recover from the solicitor that sum so expended as a liquidated debt.”

Risk Management Report may include recommendations as to future conduct of practice

9.  The 1995 Regulations are hereby amended by the substitution of the following for clause (c) of Regulation 11:

“(c) An authorised person who conducts a Risk Management Audit in relation to a solicitor admitted or provisionally admitted to the Assigned Risks Pool shall, as soon as practicable thereafter, furnish a written report thereon to the PII Committee (in these Regulations referred to as “Risk Management Report”); which report may include such recommendations as to the future conduct of the practice of the solicitor concerned as the authorised person may consider appropriate and reasonable.”

Where failure by solicitor to co-operate with qualified insurer

10.  The 1995 Regulations are hereby amended by the insertion of the following after Regulation 14:

“14A. Where a qualified insurer is reasonably of the opinion that a solicitor to whom the qualified insurer is providing the minimum level of cover is refusing, neglecting or otherwise failing to co-operate with the qualified insurer (or the agent of the qualified insurer) in relation to—

(i)  the due completion of a proposal form for the benefit of the qualified insurer in respect of a renewal of such cover which has been requested by the solicitor to the qualified insurer, or

(ii)  The furnishing of information requested by or on behalf of the qualified insurer for the benefit of the qualified insurer in respect of the handling of a claim made against the solicitor which has been notified by the solicitor to the qualified insurer,

the qualified insurer (or the agent of the qualified insurer) may, after giving at least 14 days prior written notice to the solicitor of the intention of the qualified insurer (or the agent of the qualified insurer) to do so, notify the Society of that situation and seek the appropriate assistance of the Society to ensure that the solicitor complies with his or her obligations to the qualified insurer in that regard; and the Society, on receipt of such a notification, may treat such notification as a complaint made to the Society alleging misconduct by the solicitor.”

Additions to list of exclusions from approved indemnity terms

11.  The Appendix to the 1995 Regulations is hereby amended by the insertion of the following after sub-paragraph (n) of paragraph (2) thereof:

“(o)  for wrongful dismissal or any other alleged breach or any other relief in respect of any contract of employment by the insured and for wrongful termination or any other alleged breach or any other relief in respect of any contract for supply to or use by the insured of services and/or materials and/or equipment and/or other goods;

(p) where the insured has acted as his or her own solicitor in respect of the transaction giving rise to the claim save and except where another solicitor in the firm concerned has bona fide acted at arms length for the solicitor in respect of such transaction or where the claim is by a bona fide third party in respect of such transaction;

(q) loss arising out of the insured acting in the capacity as a director of any company or organisation save where the insured is bona fide acting in a professional capacity as a solicitor for any such company or organisation;

(r) loss arising in respect of:

(i)  terrorism, war or other hostilities; and/or

(ii)  asbestos, or any actual or alleged asbestos-related injury or damage involving the use, presence, existance, detection, removal, elimination or avoidance of asbestos or exposure to asbestos.”

Facilitating the application of Directive No. 98/5/EC in relation to insurance

12. (a) The PII Committee shall facilitate the application of the Directive and any regulations giving effect to the Directive in relation to ensuring that a lawyer of a member state, who wishes to pursue the professional activities of a solicitor in the State and who applies to the Society (as the competent authority concerned) for registration in the register, has in place referable to such professional activities—

(i)  the minimum level of cover from a qualified insurer or from the Assigned Risks Pool; or

(ii)   the equivalence of the minimum level of cover obtained by way of insurance or guarantee in accordance with the rules of his of her home member state, provided that, to the extent that, in the opinion of the PII Committee, such equivalance of cover is only partial, the PII Committee shall require that the lawyer puts in place the substantial equivalence of the minimum level of cover, whether by way of additional insurance or an additional guarantee in accordance with the rules of his or her home member state or by way of further cover from a qualified insurer or from the Assigned Risks Pool.

(b) In this Regulation—

“Directive” means Directive No. 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a members state other than that in which the qualification was obtained and includes a measure which is in force by virtue of the Swiss Confederation Agreement;

“home member state”, in relation to a lawyer, means the member state in which the lawyer acquired the right to use his or her home professional title before becoming a registered lawyer;

“lawyer” means any person who is an Irish citizen or a national of a member state and who is authorised to pursue his or her professional activities in a member state under any of the following professional titles, that is to say:

•  Austria — Rechtsanwalt

•  Belgium — Avocat/Advocaat/Rechtsanwalt

•  Denmark — Advokat

•  Finland — Asianajaja/Advokat

•  France — Avocat

•  Germany — Rechtsanwalt

•  Greece — Dikegoros

•  Italy — Avvocato

•  Luxembourg — Avocat

•  Netherlands — Advocaat

•  Portugal — Advogado

•  Spain — Abogado / Advocat / Avogado / Abokatu

•  Sweden — Advokat

•  Swiss Confederation — Avocat / Avvocato / Advocat / Rechtsanwalt / Anwalt / Fürsprecher / Fürsprech

•  United Kingdom — Advocate / Barrister / Solicitor;

“member state” means—

(a) a member State of the European Union (other than the State), or

(b) the Swiss Confederation,

and, where appropriate, means more than one member state;

“register” means the register, established and maintained by the Society, of lawyers to whom registration certificates have been issued;

“registered lawyer” means a lawyer in respect of whom a registration certificate is in force;

“registration certificate” means a certificate issued by the Society to a lawyer who has duly applied for registration in the register;

“Swiss Confederation Agreement” means the Agreement between the European Community and its member states, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, done at Luxembourg on 21 June 1999.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The principal purpose of the Instrument is to amend The Solicitors Acts, 1954 to 1994 (Professional Indemnity Insurance) Regulations, 1995 to 2001—

—  to provide for an extended definition of “qualified insurer”;

—  to provide that a qualified insurer uses best endeavours expeditiously to give a premium quotation for the minimum level of cover and/or to give notice of renewal of such cover;

—  to provide for an increase from €6,500 to €10,000 in the maximum self-insured excess;

—  to provide for a percentage increase in the premium deposit payable within the Assigned Risks Pool;

—  to provide that, on provisional admission to the Assigned Risks Pool, a solicitor may be provided with the minimum level of cover from a date to be decided;

—  to provide for an increase form €2,600 to €7,500 (plus Value Added Tax) in the maximum cost to a solicitor of a risk management audit;

—  to provide for circumstances where a solicitor, who has been admitted or provisionally admitted to the Assigned Risks Pool and who then fails to co-operate, may be discharged from the Pool;

—  to provide that an authorised person may include in a Risk Management Report recommendations as to the future conduct of the practice of the solicitor concerned;

—  to provide that where a solicitor fails to co-operate with his or her qualified insurer, the Law Society of Ireland may be notified;

—  to provide for an extension of the list of exclusions from approved indemnity terms providing the minimum level of cover; and

—  to provide for the professional Indemnity Committee (appointed by the Council of the Law Society of Ireland) facilitating the application of Directive No. 98/5/EC, insofar as relates to ensuring an applicant lawyer has professional indemnity insurance substantially equivalent to the minimum level of cover.