Standard Contractual Terms - further Note Jan 2013

Dear Member,

Standard Contractual Terms – Update

On Thursday afternoon (24 January), Combar informed us that the draft contractual terms that it agreed with the City of London Law Society (CLLS) have been approved by BMIF.

Therefore, as from the start of 1st February 2013, clause 3.1(x) of the Bar Mutual Terms of Cover will be amended to provide cover in respect of liability incurred under a contract where the contract is between an insured member and instructing solicitors and, insofar as its terms concern a contractual liability of the insured member, is in a form previously approved by Bar Mutual for the field of work performed by the insured member under the contract.

The Combar/CLLS terms have been approved for these purposes by the BMIF subject to a condition that the limit of Bar Mutual's liability to indemnify any insured member for any liability under the Combar terms that would only be covered by Bar Mutual by virtue of clause 3.1(x)(b) of BMIF’s Terms of Cover shall not exceed £100,000, exclusive of defence costs.  The TLO top up cover follows the same conditions as BMIF.

The amended terms of cover are expected to be published on BMIF's website shortly.

The Combar/COLLS terms and guidance are available on the Combar website.

Members will no doubt wish to read the terms of the draft contract and general terms carefully and form their own view on whether to make use of them, either generally or in particular cases.  Whether or not individual barristers or sets of chambers use the draft contract and general terms is entirely a matter for them, and no recommendation or warranty is provided by Combar or by the Chancery Bar Association about the suitability or enforceability of the terms.

The Law Society has now published its expected guidance to solicitors on the issues raised by the Bar’s Standard Contractual Terms, including its recommendations for re-negotiation of these Terms.  See the documents below.

Please be aware that any amendments to the Combar/CLLS terms that are individually negotiated may result in liability under the contract not being covered by BMIF.  It is understood that BMIF will itself issue guidance on the kind of amendments that will and those that will not need to be specifically approved by BMIF in order to maintain cover.  In case of doubt, clearance should be obtained from BMIF before any variant or any other contractual terms (apart from the Bar’s Standard Contractual Terms) are used.

With kind regards,
Timothy Fancourt QC
Chairman, Chancery Bar Association
28 January 2013