Guidance on the Provision of Services Regulations 2009 The Provision of Services Regulations 2009 1 ( the Regulations ) came into force on 28 December 2009. They give effect, in English law, to the EU Services Directive 2 ( the Directive ). Although the Directive is a milestone in the creation of a single European market for the provision of services, the market for legal services had already been liberalised by earlier European legislation (including Directives 77/249/EEC, 98/5/EC and 2005/36/EC). The Services Directive takes effect subject to this earlier legislation, and therefore has had little impact on the way in which lawyers can provide their services generally within Europe. However the Directive and the Regulations have imposed additional obligations and requirements on all service providers (including barristers), principally in terms of the information to be given or made available by service providers to the receivers of their services. The purpose of this letter is to draw your attention to the relevant terms of the Regulations, and to provide advice as to the way in which the requirements may best be met. The Regulations The critical Regulations are Regulations 7 12. In summary, they impose the following requirements: 1. Every service provider must make available to all recipients of his/ her/ its service (1) contact details including at least the following: a postal address, fax number or email address; and a telephone number; and where he has one, an official address to which the recipients of services can send a complaint or make a request for information about the service. (Regulation 7) (2) The following information: (a) The provider s name; (b) The provider s legal status and form; 1 SI 2999/2009: available at http://www.legislation.gov.uk/uksi/2009/2999/pdfs/uksi_20092999_en.pdf; with an explanatory memorandum at http://www.legislation.gov.uk/uksi/2009/2999/pdfs/uksiem_20092999_en.pdf 2 2006/123/EC; available at http://eur lex.europa.eu/lexuriserv/site/en/oj/2006/l_376/l_37620061227en00360068.pdf 1
(c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) The geographic address at which the provider is established, and details by which the provider can be contacted rapidly and communicated with directly; Where the provider is registered in a public register, the name of the register and the provider s registration number (or other means of identification in the register); Where the activity is subject to an authorisation scheme 3 in the UK, the particulars of the relevant competent authority; Where the activity is subject to a scheme equivalent to an authorisation scheme in another EEA State, the particulars of the relevant authority involved or the Point of Single Contact in that state; Where the activity is subject to VAT, the provider s VAT number; Where the provider is carrying on a regulated profession, the professional body with which the provider is registered, his or her professional title and the EEA state that granted it; The general terms and conditions (if any) used by the provider; The existence of any contractual terms concerning the competent court or law applicable to its contracts; The existence of any after sales guarantee (not imposed by law) given by the provider; The price of the service (where pre determined by the provider for a given type of service); The main features of the service, if not apparent from the context; Where the provider is subject to a requirement to hold professional indemnity insurance, information about the insurance; and in particular: (i) the contact details of the insurer; and (ii) the territorial coverage of the insurance. (Regulation 8(1)) 2. For the purposes of Regulation 8(1), information is made available if: (a) It is supplied to the recipient on the provider s own initiative; or (b) It is easily accessible to the recipient at the place where the service is provided or where the contract for the service is concluded ; or (c) It is easily accessible to the recipient electronically by means of an address supplied by the provider; or (d) It appears in any information supplied in the recipient by the provider in which the provider gives a detailed description of the service 4. (Regulation 8(2)) 3. In addition, the following information must be provided on request: 3 It is not entirely clear what is meant by an authorisation scheme or how it relates to membership of a regulated profession. However, in the present context, the obligations imposed on service providers subject to an authorisation scheme do not appear different in substance from those imposed on members of a regulated profession. 4 This sub paragraph of Regulation 8(2) contemplates the provision by the service provider of a detailed written statement of the service to be provided, which in the usual case a barrister is unlikely to do. 2
(a) (b) (c) (d) Where the price of the service is not pre determined by the provider for a given type of service, the price of the service in question, or the method of calculating it so that it can be checked by the recipient, or a sufficiently detailed estimate. Where the provider is carrying on a regulated profession, a reference to the rules applicable in his/ her/ its State of establishment and how to access them; Information on other activities undertaken by the provider which are directly linked to the service in question and on the measures taken to avoid conflicts of interest 5 ; Any codes of conduct to which the provider is subject and the address at which the codes may be consulted electronically, specifying the language available. (Regulation 9(1)) 4. Where the service provider is subject to a code of conduct or is a member of trade association or professional body which provides for a non judicial dispute resolution procedure, the service provider must: a) inform a recipient of the service of that fact and b) mention it in any document providing a detailed description of the service specifying how detailed information about the procedure may be accessed. (Regulation 10) 5. Where information must be made available or supplied that must be done a) In a clear and unambiguous manner b) In good time before the conclusion of the contract, or, where there is no written contract, before the service is provided. (Regulation 11) 6. There is also a specific obligation with regard to complaints. The service provider must a) Respond to complaints as quickly as possible and b) Make best efforts to find a satisfactory solution to complaints. The latter duty does not apply to vexatious complaints. (Regulation 12 6 ) Guidance to the profession 5 The meaning of this provision is obscure, but appears to contemplate that a service provider may be involved in other activities which might, unless safeguards are taken, provide an incentive in conflict with the interests of the recipient of the service (e.g. a financial adviser who also acts as an insurance intermediary). A barrister is unlikely to find himself or herself in that position. 6 Cf. Code of Conduct para 403.5(d) 3
General 7. The first issue that self employed barristers and their Chambers will need to address is how to that ensure that information which needs to be made available before a contract is concluded or service provided (i.e. within the timescale required by Regulation 11) can best be made available to clients. 8. For most Chambers this will most conveniently be done through the Chambers website. It is however likely that, for most Chambers, rather more information will have to appear on the website than is presently the case. Thus, in addition to details of the Chambers postal address, telephone number, and fax number, it will probably be convenient for websites to include the following: (1) Each barrister s a) Professional title(s) (barrister, QC, avocat, Rechtanswalt) b) VAT number (see further below) c) Registered name on the BSB Register. (2) Statements, either in relation to each barrister, or in relation to all members generally, of: a) Their legal status (i.e. that they are sole practitioners) b) That they are barristers registered with the Bar Standards Board of England and Wales. (Those professing foreign qualifications will in addition have to identify their foreign professional titles, the State granting that title and the regulating body in that State.) c) The general terms and conditions on which services are provided. (A reference to Annexes G1 and G2 of the Code of Conduct, with a link to the relevant pages on the BSB website 7, will ordinarily suffice.) d) Any choice of jurisdiction and/or choice of law that the barristers contracts will create. (NB, there are no such choice of jurisdiction or choice of law provisions in Annexe G1 or in Annexe G2 of the Code.) e) That the barristers have professional liability insurance provided by the Bar Mutual Indemnity Fund Limited; contact details for the Bar Mutual; and a statement of the territorial coverage of the Bar Mutual insurance cover held. (The website address of the Bar Mutual is http://www.barmutual.co.uk/. The postal address of the Bar Mutual Management Company is 90 Fenchurch Street, London EC3M 4ST. Territorial coverage is world wide, subject to the terms of cover of the Bar Mutual, which may be accessed at http://www.barmutual.co.uk/fileadmin/uploads/barmutual/bar_mutual_ter ms_of_cover_01.pdf.) 7 http://www.barstandardsboard.org.uk/standardsandguidance/codeofconduct/section2 annexestothecode/annexeg1 thetermsofworkonwhichbarristersoffertheirservicestosolicitorsandthewithdrawalofcreditscheme1988/ and http://www.barstandardsboard.org.uk/standardsandguidance/codeofconduct/section2 annexestothecode/annexeg2 thecontractualtermsofworkonwhichbarristersoffertheirservicestosolicitors2001/ 4
(Those members of Chambers professing foreign qualifications and practising under their foreign professional titles will have to provide equivalent information about any insurance coverage they may be required to have under applicable laws or codes of conduct as foreign lawyers.) f) That any complaint about a barrister should, in the first instance be, made to the barrister in question or to his or her Chambers (the Chambers website should specify how/ to whom complaints should be made) but that if a satisfactory solution to the complaint is not obtained from these sources, that the members are subject to a non judicial dispute resolution procedure, which may be accessed through the Legal Ombudsman s website at http://www.legalombudsman.org.uk 8. 9. The provision of individual email addresses and VAT numbers are matters of sensitivity to some barristers. (1) So far as concerns email addresses, the obligation to make available details by which the provider can be contacted rapidly and communicated with directly would plainly be met by giving details of each individual barrister s email address. But this could attract unwanted spam ; and there is no reason why a central Chambers / clerks email address should not be given on the website, so long as there is in place an efficient system for forwarding emails received at that address to the barrister concerned (or a system by which the clerks make available to a client the barrister s personal email address promptly after instructions are received). (2) VAT numbers are specifically included within the information required to be made available to a recipient of services in good time before any contract is concluded or service is provided. So, if an individual barrister s VAT number is not to be made available on the Chambers website, the only realistic alternative is to have it provided spontaneously by each barrister or his clerk promptly after any instructions are received. It will be for each set of Chambers to decide how they wish to meet the requirement outlined above. 10. It will also be a matter for individual Chambers whether they will wish to provide on their websites the information which they will be required to provide on request (under Regulation 9). Chambers may wish to consider having available on their websites some of this information: e.g. a) Indicative hourly rates; b)a statement that the members are, as barristers/ QCs, governed by the Code of Conduct of the Bar of England and Wales; available in English at the relevant page of the Bar Standards Board s website at 8 Cf Regulation 10. 5
http://www.barstandardsboard.org.uk/standardsandguidance/codeofconduct /.) (NB Those professing foreign qualifications will, on request, have to identify their foreign professional codes of conduct, and how/ where those codes may be accessed (e.g. the relevant website address(es)); and the languages in which they are available.) It does not appear practical to include in advance on the website any information about other activities undertaken by the provider which are directly linked to the service in question and on the measures taken to avoid conflicts of interest, since in the unlikely event that a barrister does undertake other activities directly linked to his or her provision of advocacy services any relevant information is likely to be case specific. 11. Those Chambers and sole practitioners who do not have a website will need to consider how they are to meet the informational requirements of the Regulations. Plainly, it will be necessary to have available a written Information Sheet detailing the matters outlined above. Since it may be unpredictable or unclear in a particular case where a barrister s service is provided or where the contract for that service is concluded, it may not be sufficient simply to have that Information Sheet available in Chambers, or at the sole practitioner s practising address. The safest course will be to supply a copy of the Information Sheet spontaneously i.e. on the provider s own initiative at first meeting or telephone contact with every professional and lay client (in accordance with Regulation 8(2)(a)); for which purpose a barrister will need to keep copies of the Information Sheet to hand at conferences before court or out of Chambers (as well as in Chambers). Insurance 12. The requirement to provide information about insurance coverage raises particular sensitivities. (1) Regulation 8(1)(n) requires that where the provider is subject to a requirement to hold any professional liability insurance or guarantee information about the insurance or guarantee must be made available and in particular (i) the contact details of the insurer or guarantor, and (ii) the territorial coverage of the insurance or guarantee. (2) The view of the Professional Practice Committee is that this requires the provision of information only about such insurance as is professionally compulsory i.e. the minimum cover which barristers must have as members of the Bar Mutual Indemnity Fund (currently 500,000). There is no requirement to provide information about any additional insurance or additional level of cover that a barrister may have taken out (whether with the Bar Mutual or with other insurers); and indeed there is no requirement to specify the level of cover which is professionally required; though this will be apparent from the Terms of Cover which appear on the Bar Mutual Website. 6
(3) Those terms of cover provide that territorial coverage is world wide; albeit that: a) the costs of defending a claim brought before a court or tribunal in the United States or Canada are (unlike the costs of defending other claims) included within the limit of indemnity; and b) the award of punitive, exemplary or multiple damages by a court or tribunal in the United States or Canada is excluded from coverage. The Professional Practice Committee considers that if there is any conceivable possibility that a member of Chambers might be exposed to a claim which could be brought before a court or tribunal in the United States or Canada, recipients of Chambers services should be made aware of the terms of cover by specific reference to the relevant page of the Bar Mutual s website i.e. http://www.barmutual.co.uk/fileadmin/uploads/barmutual/bar_mutual_terms_ of_cover_01.pdf. (4) Those members of Chambers professing foreign qualifications and practising under their foreign professional titles will have to provide equivalent information about any insurance cover they may be required to have by virtue of their practice as foreign lawyers. The Professional Practice Committee The Bar Council February 2011 7