The professional indemnity saga takes another turn this week when the outcome of the recent ballot of all solicitors is announced. As a supporter of the proposal to permit solicitors to insure through the market, I do not share the views expressed in this column some weeks ago (29 March) by Lord Hunt of Wirral, but this is not the time to debate the issue yet again. The interesting question now will be the reaction of the Law Society leadership.
We have had conflicting messages. Some months ago the president and his senior colleagues were showing what seemed (to me, although possibly not to Lord Hunt) a refreshing determination to stand up and be counted. We were left in no doubt that their personal views were in favour of finding a way for market insurance to co-exist with the Solicitors' Indemnity Fund. At the Solicitors' Annual Conference in Bournemouth in October 1998, Michael Mathews stated: "I am personally committed to finding a way that offers maximum choice." The Law Society's interim executive committee, backed up by outside expert advice, recommended change. Yet the society council voted by 32 votes to 29 to retain the status quo.
Suddenly the rhetoric emanating from Chancery Lane was very different. The retention of SIF was "necessary to ensure stability" and the president damned the insurance market as "volatile and cyclical" (as though we had somehow been protected from those dangers in the past).
On one level none of this is very surprising. There is, after all, such a thing as collective responsibility. Short of a quixotic and pointless resignation, there were few options open to the president other than to put a brave face on events. From a personal perspective, he may have welcomed the opportunity presented by the resolution overwhelmingly passed at the special general meeting of the society, which has now been put to the profession as a whole.
Yet the portents are not encouraging. It has been stressed that the outcome of the ballot is not binding on the society but is merely "consultative". What are we to make of this? It hardly seems likely that the council will disregard the views of a majority in favour of its own resolution, so it must be the opposite scenario it has in mind.
Over this confused scene looms the spectre of having the issue decided through the courts, rather than by the profession's own organs. Michael Dalton's legal action is due for hearing later this year and the November Meeting Group, of which my firm is a member, is also contemplating similar action.
None of this should be necessary given firm leadership. A way must be found to build on the work that has already been done and to enable those who wish to choose market insurance to do so. If that is indeed the wish of the majority of the profession, no other course is possible.