Professional Standards Scheme
The Western Australian Bar Scheme (Scheme) under the Professional Standards Act 1997 (WA) (Act) commenced on 1 July 2020.
About the Scheme
The Scheme applies to all members of the WA Bar (as set out in cl.2.1 of the Scheme) and will, subject to the provisions of the Scheme, limit the liability of members to whom the Scheme applies (Scheme Participants) to damages in the amount of $2 million.
The liability limited by the Scheme includes, to the extent permitted by the Act, civil liability arising (in tort, contract or otherwise) directly or vicariously from anything done or omitted by a Scheme Participant in acting in the performance of his or her occupation. The limit on liability extends only to those matters that fall directly within the scope of a Scheme Participant’s professional work as a barrister and does not apply to liability for damages arising from breach of trust, fraud or dishonesty or liability expressly excluded under the Act.
By clause 3.2 of the Scheme, a barrister can limit his or her liability to $2 million in damages (the monetary ceiling) if they have the benefit of an insurance policy “under which the amount payable in respect of that occupational liability is not less than” $2 million. ($2 million insurance cover is in excess of the requirements of the Uniform General Rules).
The minimum limit of indemnity of $2 million per claim inclusive of claimant’s costs (exclusive of defence costs) is the minimum required to comply with the Scheme. (Although the Scheme limits liability for ‘damages’ to $2 million, ‘damages’ is defined to include legal costs and expenses ordered to be paid in connection with an award of damages, so that a minimum limit of indemnity of $2 million per claim inclusive of claimant’s costs is compliant).
It remains the responsibility of each barrister to determine his or her professional indemnity insurance requirements and the level of cover.
Members should familiarise themselves with the terms of the Act, and in particular sections 34, 41, 42, 44, 45 and the relevant defined terms in section 4.
The Scheme does not apply to Interstate, Honorary, Judicial, Magistrate or Ex Officio members of the WA Bar, or to members who have applied for, and been exempted from, participating in the Scheme by Bar Council.
Scheme Participants’ Obligations
Disclosure Requirements
Under section 45 of the Act all documents given, or caused to be given to a client or prospective client by a Scheme Participant must include a disclosure statement as to a Scheme Participant’s limited liability status.
The Professional Standards Legislation requires the following disclosure statement for association members who are covered by a Professional Standards Scheme:
“Liability limited by a scheme approved under Professional Standards Legislation”
Important Documents:
Professional Standards Act 1997 (WA)
Professional Standards Councils’ Your responsibilities – limited liability disclosure
The Western Australian Bar Professional Standards Scheme