Kerry Underwood

INSURED’S RIGHT TO CHOOSE OWN LAWYER

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This piece, in slightly different form, first appeared on the Practical Law Dispute Resolution Blog.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

These principles, and the whole issue of Qualified One-Way Costs Shifting, is dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – Available from me here for £15.

 

The issue of whether an individual who has before-the-event insurance is forced to use the solicitors nominated by the insurance company, or whether they have freedom of choice to instruct their own solicitor, is a vexed one which I get a huge number of enquiries about.

The direction of travel of the courts has all been one-way, and that is to give freedom of choice to clients to choose their own solicitor, but to enable the before-the-event insurance company to set limits on the hourly rates and effectively to impose upon those independent solicitors the same terms as would be imposed upon their own panel solicitors.

The latest chapter in this saga is a recent decision of the Court of Justice of the European Union which held that the freedom of choice of an insured person extends to mediation proceedings, as well as substantive proceedings.

That decision was given in the case of

Orde van Vlaamse Balies and Ordre des barreaux francophones et germanophone v Ministerraad (Case C-667/18) EU:C:2020:372 (14 May 2020) .

An insured person’s right to freedom of choice of lawyer under a legal expenses insurance policy stems from the Solvency II Directive (2009/138/EC) and the key wording, which has thrown up so many cases, is contained in Article 201(1)(a) of that Directive which provides:

“(1) Any contract of legal expenses insurance shall expressly provide that:

(a) where recourse is had to a lawyer or other person appropriately qualified according to national law in order to defend, represent or serve the interests of the insured person in any inquiry or proceedings, that insured person shall be free to choose such lawyer or other person”.

Most recent cases have revolved around the meaning of “any inquiry or proceedings”.

Here the request was made in proceedings between the Orde van Vlaamse Balies and the Ordre des barreaux francophones et germanophone  – the bar associations – and the Ministerraad  – Council of Ministers, Belgium – relating to the freedom of an insured person to choose his or her representative in mediation proceedings in the context of a legal expenses insurance contract.

The bar associations sought annulment of a 2017 national law as infringing the constitution, when read with the Solvency II Directive.

The Court of Justice of the European Union concluded that Article 201(1)(a) of the Solvency II Directive must be interpreted as meaning that the term “proceedings” referred to in that provision includes judicial and extrajudicial mediation proceedings in which a court is involved or is capable of being involved, whether when those proceedings are initiated or after they are concluded.

Previously, in a landmark decision, the European Free Trade Association (EFTA) Court held that the right to choose ones own lawyer applied at the stage of notification of the claim, or any effort to settle a matter out of court, or any instruction of the lawyer to assess the legal and factual situation, and thus the right arose as soon as a potential cause of action arose.

The judgment was a wholesale rejection of the longstanding arguments of insurance companies that freedom of choice only applied once proceedings have been issued.

That decision was in

Nobile v DAS Rechtsschutz-Versicherungs AG (Case E-21/16)

where the European Free Trade Association (EFTA) Court considered whether provisions in a legal expenses insurance contract were compatible with the freedom for insured persons to appoint a lawyer set out in the Solvency II Directive (2009/138/EC).

In reliance on its terms and conditions, the insurer had declared that it was not obliged to provide cover, as the insured person in question had instructed a lawyer without the insurer’s consent before the start of proceedings.

The court held that Article 201(1)(a) precludes terms and conditions in a legal expenses insurance contract that release the insurance company from its obligations under the contract if the insured person mandates an attorney to represent his interests, without the consent of the company, at a point in time when the insured person would be entitled to make a claim under the contract.

It rejected the argument that the application of the freedom to choose a lawyer was limited to judicial or administrative proceedings.

Here the court held that the right to choose one’s own lawyer applied at the stage of notification of the claim or any effort to settle a matter out of court, or any instruction of a lawyer to assess the legal and factual situation.

Thus the right arose as soon as a potential cause of action arose.

The court also held that it was not necessary for the insured to notify the BTE insurer in advance.

A BTE insurer has no right to deny coverage for the potential proceedings in issue because it deemed such proceedings to be unnecessary, or disproportionate or premature.

Such a right could motivate the insurance undertaking to reject coverage, which could deprive the insured person of the protection afforded by the legal expenses insurance contract.

If DAS’s contract was to be upheld then the insured person’s right freely to choose a lawyer would consist solely of the possibility of suggesting a lawyer, the acceptance of whom would be, ultimately, at the discretion of the insurance company.

It is incompatible with Solvency II Directive to accept that an insurance undertaking could be released from its obligations under legal expenses insurance contracts because the insured person breached some terms and conditions.

However that freedom to choose a lawyer cannot extend to obliging member states to require insurers to cover in full the costs incurred by the person instructed to represent the insured person.

Limitations of coverage may, for example, relate to a single claim or to the economic value of a claim.

However, terms and conditions to limit the coverage may not be such as to render it impossible for the insured person freely to choose a lawyer.

 

Comment

This is an interpretation of an EU Directive and it is likely that the UK will form part of a non-EU European grouping, including countries like Norway and Switzerland, once we leave the EU.

Any which way, these decisions are likely to remain binding on BTE insurers operating in the UK.

This is a case at the most senior level stating in the clearest possible terms that an insured person under a BTE insurance contract has an absolute right to instruct lawyers of their choice the moment the course of action, or potential course of action, arises.

In

Massar v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV (Case C-460/14)

and

Buyuktipi v Achmea Schadeverzekeringen NV and Stichting Achmea Rechtsbijstand (Case C-5/15) (7 April 2016)

the European Court of Justice ruled that the term “inquiry” included disciplinary proceedings by an employer in relation to an employee.

Here, at Paragraph 31, the court said:

“Thus, any stage, even a preliminary stage, which is capable of leading to proceedings before a judicial body must be regarded as falling within the term ‘proceedings’ within the meaning of Article 201 of Directive 2009/138.”

At Paragraph 33 the court recognised the importance of an insured person having the same representative at the preparatory stage of a case as well as at the judicial stage.

In spite of the clarity and certainty of these rulings by what is still the highest court governing matters in the United Kingdom, I will no doubt continue to get scores of emails from solicitors telling me that “the insurance company won’t let my client instruct me.”

There is a very short answer:

Sue.

Written by kerryunderwood

June 29, 2020 at 11:18 am

Posted in Uncategorized

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