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Society calls for LSB to reject 'costly burden' on Compensation Fund

23 April 2012

Following the SRA's policy statement as part of its second stage financial protection review (FP2), we have called for the Legal Services Board to reject the SRA's decision to burden the Compensation Fund with professional indemnity insurance (PII) cover for uninsured firms.

We will provide updated advice to our members to make them aware of all the changes stemming from the FP2 review in preparation for the 2012 renewal.

The Law Society supports:

  • The removal of the assigned risks pool (ARP) and introduction of a 90 day period that comprises of an extended indemnity period (EIP) and cessation period. If a firm is unable to obtain a policy of insurance at the end of the 90 days, it must close. This is consistent with the proposal put forward by the Law Society in the first stage consultation. As a result of our response to the second stage consultation, the SRA now agrees that the entire period must be backdated to the end of the original policy. We maintain that the EIP requires efficient enforcement action by the SRA to avoid firms operating without insurance. We have supported amendments to the authorisation rules to facilitate this and we look forward to seeing the detailed rules that the SRA is expected to release later this year.
  • The maintenance of insurance coverage throughout the EIP and cessation period even if work is conducted in breach of the requirement to only perform work in connection with existing instructions throughout the indemnity period. We have successfully convinced the SRA that its proposed changes would have resulted in potential client detriment and additional risk to the Compensation Fund.
  • As a compromise, the SRA will allow insurers to obtain reimbursement from insureds who conduct work contrary to the rules.
  • The SRA's decision to not introduce a notice period prior to the EIP. We considered this proposal was not practicable. However, we note that the removal of the single renewal date from 1 October 2013 will result in greater flexibility in policy length, which may allow insurers and insureds to work through issues without necessarily triggering the provisions of the EIP.
  • The introduction of a requirement that insurers are transparent about their credit ratings (or lack of rating) for the 2012 renewal.

The Law Society does not support:

  • The transfer of the existing 'side-arrangement' from the ARP to the Compensation Fund, whereby coverage is provided to uninsured firms that have not applied or are not eligible to enter the ARP. We have called for the Legal Services Board to reject these changes until there is a full review of the Compensation Fund and scope of coverage.
  • The SRA's failure to introduce mandatory acceptance periods despite the majority of respondents being in favour of this proposal.
  • The SRA not addressing the cost issue of the EIP premium.

We recognise that the SRA's decision to adopt a tiered approach of  10m tranches for ARP liability in 2012 is in keeping with the agreed position as ratified by the Law Society Council and set out in the SRA's previous policy statement.

However, a year on, we take a far less pessimistic view of the likely development of the market and are therefore disappointed that we were not able to persuade the SRA to revisit the issue of the liability split in order to maintain the equitable solution that was at the heart of our agreed position.

This is particularly the case given the data that was available to the SRA when making its decision.

Read a summary of the Law Society's full response to the FP2 review
View the consultation documents