LPLC 2017/2018 contract for professional indemnity insurance for solicitors

5 April, 2017
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LEGAL PRACTITIONERS’ LIABILITY COMMITTEE CONTRACT OF PROFESSIONAL INDEMNITY INSURANCE FOR SOLICITORS: 2017/2018
SUM INSURED: $2,000,000

PERIOD OF INSURANCE: 1 July 2017 to 30 June 2018


Civil liability

The Insurer will indemnify the Insured against any civil liability in connection with the Firm’s legal practice in respect of which a claim is first made against any Insured –

  1. during the period of insurance; or
  2. during or after the period of insurance and arising from a reported circumstance.

Defence costs

The Insurer will also indemnify the Insured against defence costs:

  1. for any claim referred to in clause 1; or
  2. relating to any reported circumstance.

LIMITS AND EXCESSES

Limit of liability

The limit of the Insurer’s liability for any one loss (including defence costs) is the sum insured specified above.

Excess

The Insured will bear (in addition to any part of the loss which is excluded from cover under this contract) the first amount of each and every loss (other than a loss to which the deterrent excess applies) up to the amount of $5,000 multiplied by the number of relevant principals, up to a maximum of $25,000. The excess does not apply to defence costs.

Deterrent excess

The Insured will bear (in addition to any part of the loss which is excluded from cover under this contract) the first amount of each and every loss up to the amount of $10,000 multiplied by the number of relevant principals, up to a maximum of $50,000 , arising from any of the following. The deterrent excess does not apply to defence costs.

Limitation periods

The failure by any Insured to issue any proceeding within a period of limitation.

Multiple parties or interests

Any matter or transaction in respect of which the Firm acted for or represented more than one party or interest.]

Outside Australia

Any act or omission which occurred outside the Commonwealth of Australia, other than – loss arising from advising on –

  1. Australian Law (the law of the Commonwealth or of a State or Territory of Australia);
  2. a matter or transaction the proper law of which was Australian Law; or
  3. a matter or transaction conducted from an office of the Firm in Australia

Related interests

Any –

  1. obligation in connection with;
  2. investment or dealing in; or
  3. advice, representation, recommendation, endorsement or opinion favouring investment in,

any fund, scheme, business, arrangement or entity in which at any relevant time there was a related interest, including investment by way of a loan to any such fund, scheme, business, arrangement or entity.

Unacceptable mortgage loans

The making of an unacceptable mortgage loan.

Professional conduct and practice rules

Any matter or transaction in relation to which any Insured is found to have acted in breach of any rule relating to professional conduct or practice.

Fraud, dishonesty, etc.

Any act, omission or conduct in respect of which any Insured is liable to indemnify the Insurer under clause 15.

Non-party costs order

Any order for costs against any Insured as a non-party to a proceeding.

Aggregate excess limit

Unless otherwise stated in a certificate of insurance issued by the Insurer in respect of the Firm for the period of insurance, the aggregate excess limit is $15,000 multiplied by the number of principals as at 1 July 2017, up to a maximum of $75,000. The limit is eroded by half the amount of any deterrent excess payments under clause 5 (the other half being borne by the Insured) followed by any excess payments under clause 4. When the limit is fully eroded, any further excess payments will be borne by the insurer (without increasing the limit under clause 3). Any ex gratia payment, or any payment made without the express consent of the Insurer may, at the Insurer’s discretion, be omitted from the calculation of the erosion of the aggregate excess limit.

‘Loss’

For the purposes of this section and this contract unless the context otherwise requires, ‘loss’ is the aggregate of all amounts paid or payable in respect of a claim or a reported circumstance, including payments for defence costs, and –

  1. all claims against any Insured arising from –
    1. one act or omission;
    2. one matter or transaction;
    3. one series of related acts or omissions;
    4. the same or similar act or omission in a series of related matters or transactions;
    5. the same or similar act or omission in one or more matters or transactions for the same client (or a relative or associate of the same client);
    6. the same or similar series of related acts or omissions in one or more matters or transactions for the same client (or a relative or associate of the same client); or
    7. all dealings and advice in respect of one managed investment scheme (including a contributory or nominee mortgage),

    will be regarded as one loss;

  2. all claims arising from all dishonesty or fraud of any one person or any two or more people acting in collusion will be regarded as one loss; and
  3. otherwise, each claim will be regarded as a separate loss.

SPECIAL CONDITIONS

Non-disclosure/misrepresentation

The Insurer may not avoid this contract or reduce its liability under this contract by reason of any failure to comply with the duty of disclosure or by reason of any misrepresentation (whether that failure or misrepresentation was fraudulent or not).

No cancellation

This contract must not be cancelled other than if (and with effect from the date upon which) the Firm ceases its legal practice during the period of insurance.

Breach of conditions

The Insurer will not refuse liability or reduce its liability (or delay any settlement with or payment to a claimant) by reason of a breach by any Insured of –

  1. a condition of this contract; or
  2. any duty to the Insurer (including the duty of utmost good faith but excluding the duty of disclosure)

but each principal of the Firm when the act or omission giving rise to the loss occurred will jointly and severally indemnify the Insurer to the extent that the Insurer’s interests were prejudiced as a result of any such breach.

No set off

Any amount payable by the Insurer to indemnify any Insured against civil liability to a claimant will be paid only to the claimant (or at the claimant’s direction) and the Insurer may not set off against any such amount any payment due to it by any Insured (whether for premium, in respect of a breach of the conditions of this contract or otherwise).

Related parties

The Insurer will not refuse liability or reduce its liability (or delay any settlement with or payment to a claimant) by reason of the claimant being, or claiming a loss suffered by-

  1. a relative of a principal; or
  2. an associated enterprise,

but-

  1. that principal will indemnify the Insurer to the extent of each amount paid or payable by the Insurer to compensate that relative or for that relative’s loss; or
  2. each principal will indemnify the Insurer to the extent of the defined proportion of each amount paid or payable by the Insurer to compensate that associated enterprise or for that associated enterprise’s loss, the defined proportion being the proportion that the aggregate of all interests beneficially held (whether directly or indirectly) at the time that the cause of action accrued by that principal (whether jointly with any other principal or severally) or any relative of that principal bears to the aggregate of all interests in that enterprise.

A principal is not liable to indemnify the Insurer under this clause-

  1. in respect of an external matter or transaction which was not handled or supervised, in whole or in part, by that principal or any other principal who had, or whose relative had, at that time an interest in the associated enterprise; or
  2. in respect of an act or omission which occurred at a time when the Firm was insured other than by the Insurer.

For the purposes of this clause, an ‘external matter or transaction’ is a matter not related to the formation, composition or dissolution of the Firm or the ownership or the business affairs or financial position or prospects of the Firm’s legal practice.

Known circumstance

If-

  1. a claim in respect of which the Insured is entitled to be indemnified by the Insurer under this contract arises from a circumstance which occurred prior to the period of insurance; and
  2. a principal became aware of that circumstance prior to the period of insurance; and
  3. a reasonable person in the position of that principal would have considered that the circumstance may give rise to a claim against any Insured; and
  4. the circumstance was not reported to the Insurer or to the then primary insurer prior to the period of insurance,

then the Insurer will not refuse liability or reduce its liability (or delay any settlement with or payment to a claimant) in respect of that claim, but that principal (or each such principal) will indemnify the Insurer to the extent of –

  1. the difference between the Insurer’s liability under this contract (including for defence costs) and the liability it or the then primary insurer would have incurred under the contract for the period of insurance during which the principal first became aware of the circumstance (had the circumstance been duly reported then);
  2. the amount that fairly represents the degree to which the loss could have been mitigated if the circumstance had been notified to the Insurer or to the then primary insurer at the time that the principal first became aware of it.

Known circumstance – merged practice

Without limiting clause 13, if a circumstance referred to in that clause related to a legal practice which was merged into the Firm’s legal practice and, immediately prior to the merger, that legal practice was not insured by the Insurer, the excess in respect of any claim arising from that circumstance will be calculated under clause 4 (or clause 5 if applicable) on the basis that ‘relevant principal’ means each principal of the Firm immediately after the merger.

Indemnity

Any Insured who –

  1. committed; or
  2. permitted (whether knowingly or recklessly)-
    1. the witnessing (or purported witnessing) of the signing or execution of a document without seeing the actual signing or execution of it; or
    2. the making of a representation (including, but not limited to, a representation by way of a certificate, acknowledgement or other document) which was known at the time it was made to be false; or
    3. dishonesty or a fraudulent act or omission; or
    4. the provision of a financial service in respect of which an Australian financial services licence or authorisation was known to be required under Chapter 7 of the Corporations Act 2001 (Cth) and was known to have not been obtained; or
    5. the dishonest or fraudulent use of a digital certificate, security item or other form of electronic authorisation in connection with an electronic conveyancing transaction,

will indemnify the Insurer to the extent of each amount paid or payable by the Insurer (including for defence costs) arising from such witnessing, representing, dishonesty, act or omission or such provision of a financial service. The Firm will retain (to the extent permitted by law) any property, remuneration or benefit belonging to that Insured and will deal with it as the Insurer requires.

Non-party costs order

Any Insured against whom an order for costs is made as a non-party to a proceeding will indemnify the Insurer against each amount paid or payable by the Insurer in respect of the order, to the extent that the order is based on –

  1. that Insured having a financial interest in the outcome of the proceeding, including an interest in whether or to what extent any Insured’s costs or disbursements will be paid; and/or
  2. that Insured having engaged in conduct knowingly or recklessly in breach of that Insured’s duty to the court or tribunal, including having advanced a claim or defence found to have had no real prospects of success.

Interest

Where any Insured is liable to indemnify the Insurer under this contract, that Insured will also pay interest on the amount outstanding to the Insurer from time to time calculated daily at the rate fixed under the Penalty Interest Rates Act 1983 (Vic). Where an Insured is liable to indemnify the Insurer in respect of an amount paid by the Insurer, interest runs from the date of payment by the Insurer.


GST NEUTRALITY

Intention

The intention of this contract is that, to the extent possible, as between the Insured and the Insurer, neither is to be adversely affected or advantaged by the operation of GST. If any party requires a tax invoice or the assistance of any other party to obtain an input tax credit, the other party will provide such invoice or assistance promptly upon being requested to do so.

‘GST’ and other expressions

For the purposes of this section, ‘GST’ means tax payable under A New Tax System (Goods & Services Tax) Act 1999 (Cth) and, unless the context otherwise requires, other expressions used in this section have the meanings given to those expressions in that Act.


EXCLUSIONS

General

The Insurer will not indemnify any Insured against any liability (or defence costs) as follows:

Death or personal injury

Arising from the death or personal injury of any person other than mental injury resulting directly from the performance of, or failure to perform, legal services.

Property damage

Arising from any damage to or destruction or physical loss of property other than documents in the Firm’s custody or control in connection with the performance of legal services.

Trading debts

For any trading or personal debt of any Insured.

Prior matters

Arising from any –

  1. actual or possible claim; or
  2. circumstance

notified prior to the period of insurance to the Insurer or to the then primary insurer or in respect of which the Firm is insured under a primary insurance contract for an earlier period of insurance.

Contractual undertaking

Arising from an express warranty, guarantee, indemnity or other contractual provision to the extent that –

  1. it extends a duty of any Insured beyond exercising the standard of care and skill which would have been applicable in the absence of that provision; or
  2. it increases the compensation or damages for which any Insured is liable beyond the amount which would have been payable in the absence of that provision.

Contracting out of proportionate liability

Arising from a provision of a contract entered into on or after 1 July 2014 to the extent that it increases the apportionment of liability to any Insured by expressly ousting or altering the application of any legislation relating to proportionate liability or by expressly reducing or eliminating any allowance for contributory negligence or other wrongdoing by a claimant or other wrongdoer which would have been allowed in the absence of that provision.

(For the avoidance of doubt, it is not intended that this exclusion apply to the extent that the liability of another wrongdoer is limited by a professional standards scheme.)

Defalcation or default

Arising, in whole or in part, directly or indirectly from, or brought about by a defalcation or default as defined in the Act or as defined in applicable, corresponding legislation in another State or Territory of Australia, irrespective of whether a claim lies against any Fidelity Fund.

Insured versus Insured

To any Insured, other than liability to any principal or employee arising from any matter or transaction which –

  1. did not relate to the formation, composition or dissolution of the Firm or to ownership or the business affairs or financial position or prospects of the Firm’s legal practice; and
  2. was not handled or supervised, in whole or in part, by that principal or employee.

Employment Practices

Without limiting clause 20.8, for any alleged discrimination, harassment or other wrongful conduct in relation to an employee or an applicant for employment.

Geographical

  1. Arising from any act or omission which occurred both during the period of insurance and when the Firm’s legal practice was conducted wholly outside the State of Victoria; or
  2. Arising from any act or omission which occurred outside the State of Victoria and the Firm is insured or required to be insured other than under this contract against that liability.

Insured’s charges

To refund, account for, or pay compensation or damages calculated by reference to, any fee, commission or disbursement charged or incurred by any Insured.

Advice on insurance cover

Arising from any representation to a claimant of, or failure to correctly advise a claimant of, the extent of insurance cover available (or not available, as the case may be) to indemnify any Insured under this contract.

Related SMICs

  1. To a Related SMIC; or
  2. Arising from any-
    1. investment or dealing; or
    2. advice, representation, recommendation, endorsement or opinion favouring investment
      in any managed investment scheme operated by any Related SMIC or investment by way of a deposit with or loan to a Related SMIC; or
    1. Arising in any way from the operations of a Related SMIC.

Directors and officers liability

Arising from any Insured acting as a director, secretary or officer of a body corporate other than the Firm or a company referred to in paragraph (d) or (e) of the definition of ‘Insured’.

Penalties, etc.

For any civil penalty or for any punitive, exemplary, aggravated, additional or like damages or for any fine, costs or expenses incurred or ordered to be paid by any Insured in connection with any complaint against, or investigation into the conduct of, any Insured.

Insurance intermediaries

Arising from any Insured acting as an insurance intermediary, other than by arranging insurance in connection with a matter or transaction conducted by the Firm.

Orders for costs

Under an order for costs against any Insured as a party to any proceeding other than a proceeding in respect of which the Insurer is liable to indemnify the Insured against defence costs.

Claims by liquidators, etc

To a liquidator, administrator or trustee in bankruptcy to account for any preferential payment or to make any payment in respect of a void or voidable transaction.

Responsible Entities

As a Responsible Entity.

Financial services

Arising from any Insured providing a financial service in respect of which that Insured was licensed or authorised under Chapter 7 of the Corporations Act 2001 (Cth).

Incorporated legal practices and multi-disciplinary partnerships

Arising from –

  1. the provision by an incorporated legal practice or a multi-disciplinary partnership of a service other than a legal service;
  2. any failure by an incorporated legal practice or its directors or officers to comply with the Corporations Act 2001 (Cth), the Listing Rules or other requirements of the Australian Stock Exchange or any other law which regulates bodies corporate or their directors or officers; or
  3. any misleading or deceptive conduct in relation to the business affairs or financial position or prospects of an incorporated legal practitioner.

Shareholders

To any person or entity in the capacity of an actual or prospective shareholder of the Firm.

Credit activities

Arising from any Insured engaging in credit activities in respect of which that Insured was licensed under Chapter 2 of the National Consumer Credit Protection Act 2009 (Cth).


GENERAL CONDITIONS

Notice of claims and circumstances

The Insured will give immediate notice in writing to the Insurer of any –

  1. claim first made against any Insured during the period of insurance; or
  2. circumstance of which any Insured first became aware during the period of insurance.

Cooperation and assistance

Each Insured will give the Insurer and any investigators or solicitors appointed by the Insurer all information they reasonably require, and full cooperation and assistance in the conduct of the investigation, defence, settlement, avoidance or reduction of any actual or possible claim or any proceeding. The Insured agrees to waive any claim for legal professional privilege to the extent only that the privilege would otherwise prevent any legal representative from disclosing information to the Insurer.

Reasonable steps and precautions

If a Principal becomes aware of a circumstance which may give rise to a claim against any Insured, the Insured will thereafter take all reasonable steps and precautions to avoid or minimise any liability or costs and expenses arising from that circumstance.

Conduct of any proceeding

The Insurer may at its option take over and conduct in the name of any Insured any proceeding arising out of or relating to any claim in respect of which the Insurer is liable to indemnify any Insured.

No admission of liability

The Insured will not admit liability for or settle any claim in respect of which the Insurer is liable to indemnify any Insured without the prior consent of the Insurer. If the Firm wishes a claim to be settled but the Insurer refuses consent, the Insurer will brief Queen’s Counsel or Senior Counsel (to be mutually agreed or, in default of agreement, to be selected by the President of the Law Institute of Victoria) to advise on whether or not the claim against the Insured is likely to succeed. If counsel’s advice is that the claim is likely to succeed, the Insurer shall take such steps as are mutually agreed to settle the claim on terms to be mutually agreed and, in default of agreement, such steps and such terms as counsel advises having due regard to the interests of both the Insured and the Insurer. Counsel’s fee will in each case be payable by the party against whose contention counsel advised.

Consent to settlement

The Insurer will not settle any claim against any Insured without the prior consent of the Firm, but if the Firm does not accept any recommendation for settlement by the Insurer, the Insurer’s liability will be limited to the amount of the settlement recommended plus costs and expenses up to the date upon which the recommendation was made.

Subrogation

If any payment is made by the Insurer in respect of a claim against any Insured, the Insurer will be subrogated to all rights of indemnity, contribution or recovery of the Insured in relation thereto. The Insured will not surrender any right, or settle any claim for indemnity, contribution or recovery, without the prior consent of the Insurer. The Insurer will not subrogate any rights against an employee except to the extent that the employee is liable to indemnify the Insurer under clause 15.

Payment

Any payment by the Insurer by way of indemnity under clause 1 of this contract is required to be made in Victoria.


DEFINITIONS AND INTERPRETATION

General

In this contract, unless the context otherwise requires –

  1. the singular includes the plural;
  2. the male gender includes the female, and vice versa;
  3. the words ‘arising from’ (and similar expressions) where used in this contract imply a factual connection and not necessarily a causal connection;
  4. headings are merely descriptive and not to aid interpretation; and
  5. words and expressions used in this contract have the meanings set out in this section and in the Act (and if there is any inconsistency, this section prevails).

‘The Act’

The Act means the Legal Profession Uniform Law Act 2014 (Vic) and, as appropriate, the Legal Profession Uniform law, other than in relation to any matter prior to its commencement, in relation to which the Act means the Legal Professional Act 2004 (Vic) or, as appropriate, the  Legal Practice Act 1996 (Vic).

‘Associate’

Associate in clause 7 has the same meaning as under the Corporations Act 2001 (Cth).

‘Associated enterprise’

Associated enterprise means any firm, company, trust or other entity in which any related interest is held.

‘Circumstance’

A circumstance is an incident, occurrence, fact or matter which may or does give rise to a claim.

‘Claim’

A claim is a demand for, or an assertion of a right to, civil compensation or civil damages in connection with the Firm’s legal practice or an intimation of an intention to seek such compensation or damages.

‘Defence costs’

Defence costs are legal costs and disbursements and related expenses reasonably and necessarily incurred in –

  1. defending any proceeding;
  2. conducting any proceeding for indemnity, contribution or recovery; or
  3. investigating, avoiding, reducing or settling any claim:

incurred by –

  1. the Insured with the consent of the Insurer after reporting the claim or the circumstance to the Insurer; or
  2. the Insurer after it has assumed conduct of any such claim or proceeding.

Defence costs do not include any internal or overhead expenses of the Firm or the cost of any Insured’s time.

‘Employee’

Employee means any person who is, or becomes during the period of insurance, or at any time was –

  1. employed or otherwise engaged in the Firm’s legal practice including, without limitation, as a solicitor, lawyer, articled clerk, consultant, associate, locum tenens or office or clerical staff member;
  2. seconded to work in the Firm;
  3. seconded by the Firm to work elsewhere;

but does not mean any independent contractor who provides or provided services to the Firm including, without limitation, auditing, accounting, advisory or consulting services.

‘The Firm’

The Firm means each law practice (other than a community legal centre) which carries or carried on the Firm’s legal practice (or any legal practice which was merged into that practice), provided that insurance has been arranged with the Insurer for the law practice which carried on the Firm’s legal practice as at the date of commencement of the period of insurance.

‘The Firm’s legal practice’

The Firm’s legal practice means the legal practice which, as at the date of commencement of the period of insurance, was carried on by the Firm and includes any legal practice which was earlier merged into that practice or which is merged into that practice during the period of insurance and also includes, in relation to any legal costs consulting company, legal costs consulting services, but only during any period in which such company was wholly owned by one or more persons who were then principals.

‘Insured’

The Insured is-

  1. the Firm;
  2. each principal;
  3. each employee;
  4. each service, administration, trustee or nominee company to the extent that it provides services to the Firm, other than-
    1. a Responsible Entity;
    2. a SMIC; or
    3. an entity which provides services to clients other than the Firm and invoices those clients in the entity’s own name;
  1. each company engaged in legal costs consulting wholly owned by one or more principals;
  2. each director or officer of a company referred to in paragraph (d) or (e); and
  3. the estate or legal personal representative of any person referred to in paragraphs (b), (c) or (f).

Any Insured means any one or more of the Insured.

‘The Insurer’

The Insurer means the Legal Practitioners’ Liability Committee established under the Act.

‘Interest’

Interest means, in the context of related interest, any share, unit, entitlement or other financial interest.

‘Legal practice’

Legal practice means the business of a law practice (other than a community legal centre) of providing legal services including the administration of trusts. Legal practice does not mean practising as a corporate legal practitioner.

‘The period of insurance’

The period of insurance means the period from 00.01am on 1 July 2017 to midnight on 30 June 2018 (or if the Firm arranged insurance after 1 July 2017, from the date insurance was arranged to midnight on 30 June 2018).

‘Primary insurer’

Primary insurer means the provider of the first layer (above any excess or deductible) of professional indemnity or civil liability insurance cover.

‘Principal’

Principal means a person who is, or becomes during the period of insurance, or at any time was, where the Firm is or was –

  1. an incorporated legal practice – a director or officer of that incorporated legal practice;
  2. a partnership – a partner of that firm, whether or not entitled to a share of the profits of the Firm’s legal practice (and where a partner is an incorporated legal practice – a director or officer of that incorporated legal practice); and
  3. a sole practitioner – that practitioner.

‘Related interest’

Related interest means the aggregate of all interests beneficially held (whether directly or indirectly) by or on behalf of any one or more of:

  1. the Firm;
  2. any principal;
  3. any relative of any principal,

but only where the aggregate is 10% or more of the aggregate of all interests in the enterprise.

‘Related SMIC’

Related SMIC means a SMIC:

  1. in which any related interest is held; and/or
  2. of which any principal or employee is a director.

‘Relative’

Relative means any spouse, defacto spouse, parent, child, or any parent or child of a spouse or defacto spouse.

‘Relevant principal’

Relevant principal means, in relation to a loss, each principal of the Firm as at the date of each act or omission or each breach of duty from which the loss arose or is alleged to have arisen, irrespective of whether such principal –

  1. is or was an Australian legal practitioner;
  2. has since retired, died or otherwise ceased to be a principal; or
  3. has been sued or otherwise joined in the claim.

‘Reported circumstance’

A reported circumstance is a circumstance first reported by any Insured to the Insurer during the period of insurance.

‘Responsible Entity’

A Responsible Entity is a responsible entity for a managed investment scheme under Chapter 5C of the Corporations Act 2001 (Cth).

‘SMIC’

SMIC (Solicitors Mortgage Investment Company) means an entity that carries on an investment business or a business of the provision of finance to the public (whether on the security of mortgages over real estate or otherwise).

‘Unacceptable mortgage loan

Unacceptable mortgage loan means any loan secured in whole or in part by a mortgage (whether a contributory, nominee, direct or other mortgage) over the legal title to land, unless –

  1. the land is situated in Australia; and
  2. the total amount of the loan and all other indebtedness secured over that land by equal or prior ranking security was not more than two thirds of the value assessed for mortgage purposes for or on behalf of the lender by a Qualified Valuer within six months of payment of the loan to or on behalf of the borrower, (a Qualified Valuer being a Licensed Valuer or an Associate or Fellow of the Australian Institute of Valuers and Land Economists).

A loan is not an unacceptable mortgage loan if –

  1. the loan is secured by a direct mortgage;
  2. the borrower is not a relative of a principal; and
  3. before the loan was made, the Firm obtained a written acknowledgment from the lender that, in deciding to make or authorise the making of that loan, the lender did not rely upon any advice, representation, recommendation, endorsement or opinion by or on behalf of any Insured other than legal advice on the terms of a contract associated with that loan.