The honesty of the Master Insurance Policy - the Professional indembity insurance scheme of Scottish solicitors, organised by the Law Society of Scotland and brokers Marsh UK, is brought severely into question by Peter Cherbi in a recent article on his web blog "A Diary of Injustice in Scotland"
While guidelines the Law Society claims to adhere to allegedly prevent it from meddling in negligence claims against solicitors, the evidence is to the contrary, revealing the most senior members of the Law Society to have personally intervened in client negligence actions against legal firms to prevent their progress, denying clients all access to legal services, and compensation settlements.
Peter Cherbi reports :
Kenneth Pritchard, Douglas Mill's predecessor as Secretary & Chief Executive of the Law Society of Scotland, admitted as far back as 1994 in the media the Master Insurance Policy professional negligence insurance scheme was primarily "... there to protect the solicitor, his practice and his family...".
The Herald Wednesday August 17th 1994
Policy is to protect both says Law Society
Law Society secretary Kenneth Pritchard described as "utterly wrong" claims that solicitors professional indemnity insurance sets out to deny genuine claims for negligence and delay settlements to clients.
Mr Pritchard was responding to allegations made by Paisley house builder Iain McIntyre that solicitors insurance protects the profession at the expense of the client.
Mr Pritchard made it clear that he did not wish to comment on the conduct of any court action currently being pursued by Mr McIntyre and restricted his comments to the operation of the master policy for professional indemnity insurance operated by the Law Society.
"The master policy, in common with any other third party policy, is there to protect solicitors, but also to provide indemnity to their clients who have suffered loss. That is absolutely no different from any other third party type of policy, for example car insurance"
The Government has legislated that nobody can drive on the public highway without having third party insurance. The Law Society, in the interests of its members and the public, requires a solicitor in private practice to hold cover under the master policy before he gets a practicing certificate.
The only difference between third party insurance and the master policy is that it is imposed by the solicitors own body and not by the Government.
"Of course it's there to protect the solicitor, his practice and his family, but it's equally there to provide a fund for proper compensation to the client who has suffered loss"
Mr Pritchard complained that while the Law Society organised and administered the master policy and ensured that it provided the necessary range and amount of cover, negotiations over a claim were a matter for the client, solicitor and insurer.
He described the suggestion that the system operates to deliberately delay settlements or deny settlement when it was due as utterly wrong.
The Law Society's rule is to monitor what the master policy is intended to do and that it is to deal speedily and effectively with claims. In the main we are quite satisfied, although there are cases which go wrong.
There are two quite separate issues, the first being liability.Were the solicitors negligent ? If that is established, the second big issue is how much does the client get paid ?
There is an inevitable regulation - indeed there may well be an inevitable gulf - between what the client perceives as justified and what the insurers backed by their experience of settlements awarded by the courts, believe that a particular claim is worth.
Mr Pritchard also denied the allegation that firms which carry an excess on their insurance policies try to avoid liability because cash would have to come from their own pockets.
My perception from talking to firms is that, if they accept that the claim is due, the sooner it gets settled the better. There is no advantage in haggling over liability or the amount of damages because all you are doing at the end of the day is adding interest to the claim.
What lay behind that 1994 report in the Herald newspaper, were revelations that Kenneth Pritchard intervened in negligence claims against the legal firms of Wright & Crawford of Paisley, MacRoberts of Edinburgh, and Grant & Co, writing to the petitioners legal representatives, Skene Edwards Solicitors, on 21 June 1995, asking them to "protect their back" and that such correspondence would remain confidential between Mr Pritchard and Skene Edwards Solicitors, the petitioner's legal agents, and should not be disclosed to the client, Mr McIntyre.
As you can see from the above extract of pleadings, Kenneth Pritchard, apparently not satisfied with the terms of his previous letter, then wrote back to Skene Edwards Solicitors , two days later on 23 June 1995, ordering them to withdraw acting for their client in the negligence litigation against several legal firms.
You can read some more about Iain McIntyre's case on the Scottish Parliament website in pdf format HERE
Kenneth Pritchard is currently a serving Sheriff, and has unbelievably, written a book on professional negligence. The book must be very insightful on how to protect the legal profession from the public interest .....
Kenneth Pritchard's involvement in the above case, is certainly evidence enough the Law Society of Scotland directly intervene in clients negligence claims against solicitors ... and to continue the theme of Law Society intervention, Mr Pritchard's successor, Douglas Mill, was again, caught interfering in a client's negligence action, this time by the details of his own memo where Mr Mill, and various elements within the Law Society and the insurers, were seeking to delay & destroy several negligence claims by Mr Stewart MacKenzie against solicitors.
My own case too, has seen such intervention, with Douglas Mill directly intervening with the Scottish Legal Aid Board to cancel my legal aid funding for (i) a negligence claim against a solicitor and (ii) a case against the Law Society of Scotland to expose their mishandling of claims & my complaint against Andrew Penman.
Mr Philip Yelland, the Law Society's Director of Regulation, then contacted my own solicitor, akin to Mr Pritchard's interference in the other case, ordering my legal agents not to undertake instructions from me and to abandon my case.
Well, there is no surprise to learn that such 'intervention' by the Law Society of Scotland is commonplace against clients who try to claim compensation against a crooked lawyer, or pursue a negligence case using a lawyer to sue a lawyer which is the current & only method for pursuing cases against solicitors ....
The Scottish Government of course, know this to be the case. They are not as stupid or ignorant as they pretend to be. Indeed, John Swinney MSP, spoke on the issue of Kenneth Pritchard's intervention in the above case, during the LPLA Bill debate in December, and you can view Mr Swinney talking about it here :
Similarly, the Scottish Parliament and every single one of it's msps, are well aware of these problems of incessant Law Society intervention against any court case or complaint, or claim for financial loss which threatens member solicitors.
If everyone knows about it, when why is nothing done about it ?
Well, the simple answer to that question is the Law Society and the legal profession require that no action be taken to protect the public interest, over the interests of solicitors, and politicians are left in no doubt that if they support legislation which might end the corrupt arrangements of the Master Insurance Policy, they will be facing electoral oblivion or a lack of financial perks so many have been used to.
Any client of a crooked lawyer, who has tried to make a claim for damages against their negligent solicitor has certainly found this to be true, with the full wrath of the legal profession & insurance industry dirty tricks brigade being brought to bare on them. I among them.
I covered some of the dirty tricks carried out by the Law Society of Scotland, Marsh UK, and the insurers against client claims in an earlier article here : The Corrupt Link Revealed - How the Law Society of Scotland manages client complaints & settlements.
To this day, the Scottish Government, and it's previous incarnations, have afforded obsessive secrecy to the operation of the Master Insurance Policy which 'protects the solicitor, his practice and his family' for reasons it seems, the Government itself may significantly benefit financially, from it's own direct relationship with Marsh UK and the same insurers.
In an earlier article I wrote on the Scottish Executive's in house legal team, an FOI revealed the cost of running some 114 lawyers at around 5 million pounds, although that figure is now understandably suspect, given further revelations since i wrote the piece here : Scottish Executive budget on lawyers salaries revealed at over £5 million pounds while public face restrictions on legal representation
In an effort to get to the heart of the seemingly impenetrable workings of the Master Insurance Policy during the progress of the LPLA Bill through the Scottish Parliament, a short lived saga developed, where John Swinney MSP, at the time in opposition, wrote to the then Deputy Justice Minister Hugh Henry MSP, asking for "minutes of any meetings that may have taken place between the Scottish Executive, the Law Society, the brokers & the insurers for the Master Policy in connection with any provisions within the BILL that may affect the Master Policy."
A few days after Johan Lamont MSP responded to Mr Swinney, the Scottish Executive had apparently consulted the Law Society of Scotland and decided against releasing any information, sending Mr Swinney a two page letter excusing themselves from release of the information, on grounds of disclosure not being in the public interest - this coming after an apparent demand from the legal profession to keep the information secret.
Mike West, of the Justice Department, responded for the Executive, denying release of the information ...
"We endeavor to provide information whenever possible. The information you requested is related to the Legal Profession and Legal Aid (Scotland) Bill which is currently going through it's parliamentary process. As this information is a contribution to the formulation and development of government policy, it is exempt from disclosure under Section 29(1)(a) of the Freedom of Information (Scotland) Act 2002 which states the information held by the Scottish Administration is exempt information if it relates to the formulation or development of government policy.
In addition, as the information you requested consists of ongoing deliberations to assist with development of policy, it is likely to inhibit substantially the free and frank provision of advice, and free and frank exchange of views, and is thus exempt from disclosure under section 30(b)(i) and (ii) of the 2002 Act.
In reaching our decision about releasing the information, we have applied the 'public interest test' where we carefully weigh up the balance between whether it would be in the public's best interest to either release or withhold the information. We considered that, release of information would be likely to result in the loss of input into policy development from valuable stakeholders. On both occasions, we considered that it would not be in the public interest to release the information."
Interestingly, the Scottish Executive at the time obviously felt unable to release discussions with a well known to be corrupt insurance policy arrangement with the legal profession, because it would apparently be 'against the public interest to do so' .... I wonder why that could be ?
John Swinney MSP duly replied to his constituent on December 11 2006, informing Mr MacKenzie of the Scottish Executive's refusal to release the information sought on meetings over the Master Policy.
Of course, now that Mr Swinney is in Government, as the Cabinet Secretary for Finance, there should be no problem in his ordering the release of such information, and I await with interest to see if he does so, defying the commands of the legal profession to the contrary ...
After all, you can't have meetings & policy discussions on external insurance arrangements for public bodies which are supposed to be outside the control of government, and then tweak proposed legislation (which may run counter to that same public body's interests) to suit, unless there is a degree of collaboration & involvement in those issues & insurance arrangements, which it seems are certainly against the public interest, not for it ...