Previously, the General Court of the European Free Trade Association (EFTA) had ruled in a landmark decision that the right to choose one`s own lawyer applied at the stage of bringing the action or attempting to settle a case out-of-court, or of any instruction by 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 general rejection of insurance companies` long-standing arguments that freedom of choice only applies after commencement of proceedings. We do not take into account the quality of legal advice. In England and Wales, clients who are not satisfied with the quality of legal services provided can address their complaint to the Legal Ombudsman. There are similar facilities in other parts of the UK. In an email from my legal protection insurer dated the 22nd. However, in June 2020, the following position was expressed: But sometimes we find that the proposed legal action has no reasonable chance of success because: The court also found that it was not necessary for the insured to inform the BTE insurer in advance. A BTE insurer does not have the right to refuse coverage for the potential procedure in question because it considers such a procedure to be unnecessary, disproportionate or premature. Such a right could lead the insurance undertaking to refuse cover, which could deprive the insured of the protection offered by the legal expenses insurance contract. If the contract were to be maintained by DAS, the insured`s right to choose a lawyer would consist only of the possibility of proposing a lawyer, the acceptance of which would ultimately be left to the discretion of the insurance company. Article 201(1)(a) of Directive 2009/138/EC precludes the conditions of a legal expenses insurance contract which release the insurance undertaking from its contractual obligations where the insured person appoints a lawyer to represent his interests without the consent of the undertaking, at a time when the insured person would be entitled to lodge claims under the contract. There are other scenarios about which we see complaints in the field of legal expenses insurance, including: One of the most common complaints about legal expenses insurance concerns the question of who chooses the policyholder`s legal representatives. We will probably decide that the policyholder should be able to appoint his own lawyer at the outset of his insurance claim and before legal proceedings are necessary, only in exceptional circumstances.
An accountant carelessly fills out a client`s tax return, but the client does not discover it until a few years later, when a claim for unpaid taxes is made. The client believes that the legal action against his accountant is covered by the legal protection policy he has completed since he claimed unpaid taxes. The “event” is the negligent act that precedes the insurance. Even in cases where the policyholder was not insured for legal costs at the time of the negligent act, we may decide that the insurer must accept the claim. Indeed, in some cases, we decide that the period must run from the date on which the customer became aware of the problem, if the damage is not obvious at the same time as the cause of the damage. At European level (although Brexit does not affect the likely status of these regulations and related case law at the time of writing), the Court of Justice of the European Communities delivered a judgment in Eschig v UNIQA Sachversicherung AG [2009] C-199/08, which was interpreted by the Financial Services Authority (FSA) to mean that freedom of choice arose before the start of an investigation or procedure. Subsequently, in Stark v. DAS Österreichische Allgemeine Rechtsschutzversicherung AG [2011] C-293/10, the Court of Justice of the European Communities held that restrictions on freedom of choice which essentially deprived freedom of meaning were not permissible. Similarly, British courts expressed similar views in Brown-Quinn v. Equity Syndicate Management Ltd [2012]. The policyholder or court-appointed lawyer must draw the insurer`s attention to any significant or substantial changes in the risks associated with the loss.
The law allows insured persons to choose their own lawyers to act on their behalf from the outset of the legal proceedings. Legal expenses insurance is intended to cover uncertain risks, not unavoidable or existing events. “I think the trial must now move forward because of the passage of time and that Mr. XXXXX should have the opportunity to appoint his own lawyers after the opening of legal proceedings.” When it comes to legal coverage, the situation becomes murky. If you have legal coverage under your home or auto insurance, the company offering the coverage will argue that you don`t have freedom of choice. They will say it`s because the contract means they can choose your legal representative for you. In the present case, the request has been made in proceedings between the Orde van Vlaamse Balies and the Ordre des barreaux francophones et germanophone (Bars) and the Ministerraad (Council of Ministers, Belgium) concerning the freedom of the insured person to choose his representative in mediation proceedings under a legal expenses insurance contract. The bar associations have called for the annulment of a 2017 national law as unconstitutional in connection with the Solvency II Directive. The management of the courts was one-sided; This means giving clients the freedom to choose their own lawyer, but allowing the BTE insurance company to limit hourly rates and effectively impose the same conditions on these independent lawyers as would be imposed on their own lawyers on the lawyers` panels.
If a client believes that he has a claim that may include the use of his legal coverage, he can choose his lawyer immediately, that is, before the opening of legal proceedings. The legal protection insurer cannot prevent the termination of the insurance cover if the client has chosen his own lawyer before the insurer is informed. We will check whether you have fulfilled your obligations as an insurer correctly and whether you have treated the damages fairly. This includes checking the terms of the policy and whether you have acted on the advice of a suitably qualified legal advisor. It is incompatible with Solvency II to allow an insurance undertaking to be exempted from its obligations under legal expenses insurance contracts because the insured person has failed to comply with certain conditions. However, that freedom to choose a lawyer cannot go so far as to oblige Member States to require insurers to bear in full the costs incurred by the person responsible for representing the insured. Restrictions on coverage may, for example, relate to an individual claim or the economic value of the damage. However, the conditions for limiting cover must not be such as to make it impossible for the insured person to freely choose a lawyer. Your opinion on the chances of success is usually the basis for your decision as to whether you want to fund the legal costs.
For example, when customers purchase auto insurance, they are often offered the option of legal protection insurance to fund the cost of the lawsuit and compensate for uninsured damages. Most auto insurance policies only cover insured losses such as loss or damage to the vehicle, which covers legal liability to third parties. Sometimes we decide that a non-financial solution is more appropriate than a financial solution to resolve a complaint. If a policyholder wants the court to issue an injunction to prevent someone from doing something, or to get someone to do something — for example, moving a border fence — we will consider the legal advice. In some cases, however, non-financial remedies are unlikely to be granted because they would: in the Brown-Quinn case, the statutory insurer could only accept the lawyer chosen by the insured “in exceptional circumstances”. Most policies include a clause stating that the policyholder must inform you as soon as they become aware of an event that could give rise to legal proceedings. The Court of Justice of the European Union (CJEU) in the case of Sneller v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV, Case C-442/12; reported under [2013] WLR (D) 426, held that a legal expenses insurer did not have the right to restrict the choice of the insured`s legal representative.