Protecting clients' financial interests. Response by the Council of Mortgage Lenders to the Solicitors Regulation Authority discussion paper

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1 Protecting clients' financial interests Response by the Council of Mortgage Lenders to the Solicitors Regulation Authority discussion paper Introduction 1. The CML is the representative body for the first charge residential mortgage lending industry, which includes banks, building societies and specialist lenders. Our 131 members hold around 96% of the assets of the UK mortgage market. We have responded to the Solicitors Regulation Authority (SRA) s previous consultations and call for evidence on client protection matters. This response has been prepared in consultation with members. Summary 2. We make the following key points: The existing client protection arrangements, though not perfect, currently offer the best protection for all clients and are well understood by the profession and insurers; we do not believe that there is any compelling evidence for the changes proposed for discussion. Nor are we aware of any general calls for such change from the profession. The SRA can take steps towards reducing the costs of client protection through better regulation of the solicitor profession this will prevent the need for recourse to client protection measures. The proposed changes to the Minimum Terms and Conditions (MTC) for Professional Indemnity Insurance (PII) will result in impacts on the make-up of lender conveyancing panels, potentially more separate representation as a result, and a move away from using solicitors in conveyancing transactions. General comments 3. There is no evidence presented in the discussion paper as to why the existing protections do not protect the public interest, or that they are disproportionate. Rather, the SRA seeks that evidence from stakeholders. We believe the onus is on the SRA to demonstrate why they believe there is a case for change. We are not aware of any general push for radical changes by either the profession, or their insurers. Certainly our members do not support any change, particularly as a recent survey of our members indicated that they felt that there had been no improvement in the standards of solicitors since the advent of outcomes-focused regulation. 4. The level of claims to the compensation fund remains high and is not indicative of an environment where the regulator should feel that client protections should be relaxed in any way. Rather, the SRA should focus on demonstrating that they are improving professional standards to prevent the need for clients to rely on a solicitor s professional indemnity insurance or the compensation fund. 5. Once again, the timing proposed by the SRA is concerning. The SRA are planning a further consultation in early 2016, with major changes potentially being implemented by October This would only allow a matter of several months for insurers, clients such as lenders, and the profession to adapt. Given the lag from a lender s instruction to a solicitor, to completion of a transaction, is typically around 3-6 months, lenders will need to consider impacts of the proposals on their pipeline risk and act to protect themselves accordingly. As a minimum, we suggest that major changes (such as changes to the MTC) should not take effect for 18 months. 6. We have addressed the specific questions set out in the discussion paper, in the body of this response. address North West Wing Bush House Aldwych London WC2B 4PJ telephone fax website

2 The context of on-going review and reform 7. The SRA have been reviewing the client protection regime in some form since 2010, and we have consistently challenged many of the proposals which seek to lessen client protection. With regard to the important issues raised in paragraph 13 of the discussion paper, we set out our views below. Whether there are alternatives to the need for SRA-authorised firms to hold client money 8. In the past, various stakeholders have explored the case for removing the need for conveyancers to hold client money, whether that is through an escrow-type arrangement or a nettingoff scenario. The degree of change required to implement such a proposal, contrasted against the perceived benefits, has meant that this solution has not progressed. Ultimately, our members believe the existing process can work where sufficient controls are in place to ensure that client monies are as far as possible, being accounted for appropriately, and those responsible for client account management are subject to appropriately rigorous checks. Whether there should be a prohibition on SRA-authorised firms acting for lender and borrower 9. It is not clear what the SRA s view is on how the separate representation of lender and borrower can contribute to the objectives of having appropriate client protection and the cost and regulatory burden. We support the current joint representation approach, which by and large works well for all. It helps to streamline the conveyancing process, reducing cost and delay for all parties, and operates well in the large majority of transactions. We would expect that a reasonably competent solicitor should be able to manage any conflicts of interest as they would for any other transaction. Widespread separate representation is unlikely to promote a more streamlined conveyancing process, which cannot be in the public interest or in the interests of the profession. The impact of specific regulatory requirements on the supply and cost of insurance 10. It is clear that the SRA envisage that any reduction in the MTC may result in lower PII premiums for solicitors, and in general that the insurance market would respond to demand for various types of PII which could provide more protection than any new level of MTC. We urge that appropriate market evidence is sought so that clients can be assured that solicitors would be able to obtain cover that would be expected under changed MTC, or for the various top-up cover that would be sought by clients (including our members) to at least match the existing MTC. The need for up-to-date analysis of claims trends and histories to inform client protection going forward 11. We welcome the fact that the SRA is working with insurers to review claims trends and histories to form an evidence base to inform client protection levels going forward. However, we hope that the SRA will not use the information solely to help evidence options to reduce the costs of insurance by reducing the ability of clients to claim. It should use the information to examine why claims have arisen; and seek to prevent the problems experienced by clients linked to negligent practices - and at worst, by fraudulent activities - which were uncovered in the recent credit crunch. This must be a priority for the SRA. 12. We are interested to see the results of the data. This we expect, would show a peak of claims post 2007 and then this should be levelling off now that lenders in particular have introduced more stringent controls around who they use for conveyancing services. Any analysis of the claims data should be balanced, using both recent and historic claims data, to fully reflect the insurance cycles. The importance of professional standards to support the SRA s aims for regulation of client financial protection.

3 13. We cannot over-emphasise the importance of the need for the regulator to promote and enforce high professional standards, as the primary way in which to help protect clients. While the world has moved on since the credit crunch, and our members have put various mechanisms in place to protect their position, they would like to be confident of the fact that solicitors are well-regulated and feel reassured that the need to make a claim against a solicitor will be rare. 14. The SRA note in their discussion paper that a significant amount of the client protection costs relate to misuse of client money surely this is a prime example of an area of priority in terms of the SRA s regulatory objective of having effective risk identification and enforcement strategies. Options for changes to PII arrangements Client coverage 15. We remain of the view that lenders, like any other clients, deserve to have protection from poor or fraudulent behaviour of their legal representatives. It is not the case that sophisticated clients are any more able to prevent negligence or fraud on the part of their legal representatives, especially where there is a sophisticated fraudster involved. 16. Therefore they should be able to claim, if necessary, for compensation under their solicitor s PII policy. It is not a valid argument to say that because there has been a change to the criteria for those who can claim under the compensation fund, it therefore follows that PII coverage should match. That argument appears simply to validate the SRA s previous decision-making, the basis for which we (and others) have challenged. Again, we do not believe there is any evidence which would show that removing sophisticated clients from cover achieves the aim of protecting the public interest. 17. We have highlighted in previous responses, the challenge that lenders will face if cover under the Minimum Terms and Conditions (MTC) ends; with impacts on the make-up of lender conveyancing panels; more separate representation; and a move away from using solicitors in conveyancing transactions. Aggregation limit 18. As we have previously stated, in relation to aggregation limits we would prefer to see the current MTC unchanged and cautioned against the introduction of an aggregation limit. The proposal to have a cap on insurers ultimate exposure needs to be carefully considered. If the cap is set too low, then the cap may not be adequate where serious losses have been sustained by the client resulting in the client losing out. Some areas of practice attract a higher risk of losses (such as conveyancing the Wilmetts case being a prime example). It is difficult to put a figure on an adequate liability cap. In the absence of robust evidence as to what this might be, it can be argued that at least the current MTC cap is understood by the solicitor profession. 19. We believe there is a need to reduce the opportunity for claims to be added together to treat them as one claim. Any cap must go hand in hand with clarity about how insurers are able to approach such claims, clearly defining what can be linked, or not linked, for the purposes of connected claims. We are pleased that recent case law is beginning to provide such clarity. This mitigates the need to make change at a time when the judicial approach to aggregation is more certain and supports the protection of the client. Reduction of the minimum compulsory cover 20. We reiterate our previous stance. We favour the retention of existing levels of cover ( 2m or 3m for incorporated firms) as a minimum. We would like to understand the insurance industry s views on how a move to reduce the current level of cover would impact on premium levels; this evidence should be set out in the forthcoming consultation document to enable stakeholders to comment fully on any future proposals. 21. We have serious concerns about the option to have no minimum limit of cover; this arguably creates a worse situation for clients than the previous proposals to reduce the minimum level of cover

4 to 500,000. Our members will need to understand how the SRA intend to police this in the absence of minimum limits of cover and what the SRA consider is appropriate, if they are to feel comfortable that this would not create a bigger gap in client protection than previous proposals. 22. As we pointed out in previous responses, there is inherent risk in relying on firms to assess the right level of cover for their needs. Firms who are keen to minimise their PII spend may choose to take a less rigorous approach to the assessment. How would the SRA seek to prevent inappropriate levels of cover being taken out? How would the SRA react if they found that significant parts of the market were not taking out appropriate cover? How would they seek to protect clients who might be impacted? These issues need to be addressed. 23. Given PII operates on a claims-made basis, it is not clear what would happen where claims are made against work done in earlier years where the claim is larger than their chosen insured limit and the firm has been unwilling or unable to purchase top-up cover and there are no other alternatives to pursue. Again, the SRA should address this. 24. We have commented on the provision of PII information below. Run-off cover 25. We are supportive of an extension to the run-off cover provided by the Solicitor Indemnity Fund (SIF). As clients, we would prefer the greatest level of protection and feel therefore that the extension should be for at least two years or longer if the SIF is able to financially support it. This gives clients piece of mind that even if the solicitor firm has ceased trading, protection is still available beyond the six year run-off period if required. 26. Any changes to shorten run-off cover which emerge will particularly impact on conveyancing clients who often have claims which are both high value and emerge long after the transaction has concluded, and particularly within a 3-6 year time frame, where the firm and the client will be most exposed under these proposals. We would urge the SRA to bear this in mind when considering the insurance data on claims and preparing options for discussion in the upcoming consultation. Defence costs 27. We have no comment on this. Funding of the excess 28. We have no comment on this. Unpaid premium 29. We prefer to retain the existing MTC feature which requires a PI insurer to remain on risk where premiums are not paid. We are concerned that allowing PII policies to be cancelled for unpaid premium would leave clients at risk, particularly our members who no longer have recourse to the Compensation Fund. We agree with the SRA s view that there is not enough evidence to show that the impact on consumer protection from removing this from the MTC, would be outweighed by lower costs of insurance. Avoidance, repudiation, adjustment and denial 30. We do not support proposals which would allow an insurer to avoid paying out to clients, as this would diminish the current level of client protection. Further, we would not be supportive of a change to the MTC to allow the insurer to exclude their liability to indemnify financial institutions, where there was material misrepresentation or non-disclosure by the insured. 31. The SRA have referred to the practice in the Republic of Ireland (ROI) as an example of where this already occurs. As we understand it, the Law Society of Ireland s minimum terms and conditions allow insurers to exclude indemnity of financial institutions where the solicitor is acting in a

5 commercial property transaction. This is because, since 2010, solicitors have not been able to act for both lender and borrower in a commercial property transaction. We understand that this came about because of a significant amount of undertakings that were not honoured in such transactions in the years prior and nearly caused the collapse of the professional indemnity insurance market. 32. We understand the residential property market in ROI continues to operate as it does in England and Wales, i.e., lenders are covered by the solicitor s professional indemnity insurance and the solicitor usually acts for both parties. 33. In terms of impacts, the result of the changes in ROI with regard to those solicitors acting in the commercial property transactions has meant that lenders are separately represented in commercial property transactions. 34. We would expect that if financial institutions were excluded from PII indemnity, on the same basis as for ROI but including residential property transactions, then lender clients would need to assess top-up cover which would fall outside of the MTC to ensure that they are adequately protected. Potential outcomes, previously highlighted to the SRA, are that lender conveyancing panels will sharply reduce, as lenders seek to manage the additional administrative burden by reducing the amount of firms they work with; lenders will need to reflect the cost of the resource in the mortgage pricing; or consider working with alternative legal professionals. This would impact more widely either through rising costs for conveyancing transactions or by impacting on consumer s choice of conveyancer. Cover for partner fraud 35. As previously noted, we are concerned at any proposals which potentially reduce the current levels of protection for clients. Unfortunately, our members have often experienced a situation where fraud has occurred within a partnership. The cover for partner fraud has protected lender and other clients and is seen by our members as a key protection. Awards by the Legal Ombudsman 36. We have no comment on this. Removal of the extended policy period 37. We are aware that some of our members have needed to rely on the extended policy period in respect of claims against firms who have not paid for insurance cover and yet are able to continue to practice. The removal of the extended policy period may see more firms cease to exist unless the SRA allows firms to practice without any insurance cover in place, which would not be an attractive proposition for clients. 38. We are not convinced that firms would necessarily be incentivised to look for cover well in advance of the renewal date, as suggested in the discussion paper. As lender clients are not able to access the Compensation Fund, if a firm carries on practicing without insurance, lender clients may be disproportionately affected by this change. Consumer information 39. We previously argued that there should be an accurate, readily accessible database of information about firms PII cover available to clients, such as a centrally-held register. In the absence of this, over recent years, many lenders who operate conveyancing panels require firms to provide information about their PII cover and update this when the information changes. This can be a timeconsuming task for both lender and conveyancer. 40. If the MTC were to change, our members will continue to require information from their legal representatives about their PII cover, however the detail of that information will inevitably increase (as the lender will no longer be able to assume that the cover matches the MTC requirements) and for some lenders, the way in which they will deal with this is to reduce the numbers of firms they deal with

6 to manage the additional administrative burden. Simply providing more lead-in time to confirm their position will not reduce the level of information that lenders may require. 41. In considering how such information can be made available to consumers, the SRA will need to consider how the insurance information can be easily explained, particularly to individual consumers, in order to easily compare providers; and how best to make the information available. For example, most lenders will require their legal representatives to supply them with information on PII electronically, some via online portals. Options for changes to the Compensation Fund arrangements 42. Given lenders are ineligible to claim under the Compensation Fund, our comments on this section are limited. Holding of client money 43. We have already set out views at paragraph 7 on the holding of client money. On balance, our members do not feel that removing the ability of solicitors to hold client money would be of enough benefit to offset the cost and impact of moving to an alternative system such as netting off or having an escrow-type scenario. More detail on proposed alternative options is required to be able to comment fully. Conclusion 44. We are disappointed that once again, proposals to reduce the amount of client protection are being presented for discussion without a clear evidence base; and with a sole focus on reducing costs of the protection by reducing the levels of protection, rather than preventing the need for clients to rely on protection in the first instance. 45. We disagree with the proposals to change the existing MTC and we believe that there will be unintended consequences of the proposals around minimum levels of PII cover, which will impact negatively on the conveyancing market and potentially the wider housing market. We do not think that there is sufficient evidence presented within the discussion paper to justify change and that changes proposed will result in proportionate regulation which protects the consumer and public interest. The SRA should focus on preventing client loss in the first instance, tackling the root causes of PI claims, before seeking to reduce client protection.