A solicitor who failed to disclose counsel’s pessimistic advice about a case to ATE insurers has agreed to an £8,000 fine. Nigel Martin Kinder, admitted in 1983, accepted that he failed to disclose all material facts when completing an insurance proposal form in 2008. The Solicitors Disciplinary Tribunal certified an outcome agreed with the Solicitgors Regulation Authority.
It was accepted that the incident was a single incident in a previously unblemished career, with no evidence of repetition, bad faith or dishonesty, and no suggestion Kinder had concealed anything from his client.
The tribunal heard that Kinder, formerly with a Devon firm, was representing a claimant in arbitration and had taken out a policy on her behalf with ATE provider Elite Insurance Company Ltd. The insurer subsequently voided the policy on the basis of misrepresentation and non-disclosure of information – specifically the fact that two counsel had assessed the case as having less than 50% chance of success.
The claimant therefore had no indemnity when her opponent pursued her for damages and costs. In a witness statement, the opponent stated that most of the £300,000 due was still outstanding.
The SRA said that the public would not expect solicitors to make declarations to say they had disclosed all relevant information where they should be aware this was not the case.
In mitigation, not endorsed by the SRA, Kinder said he believed the counsel advice was not definitive, and he favoured the more recent advice of another barrister who suggested a better prospect of success. He pointed out that the conduct in question occurred more than 12 years ago.
The tribunal said Kinder should have disclosed all advice in the insurance proposal form. Kinder, now with another firm, was ordered to pay £2,000 costs in addition to his fine.