Choosing your own lawyer ? what are your rights? | Hart Brown Blog ...

You have a claim to pursue and you have legal expenses insurance in place to pay for it.? You think ?great ? that?s a relief?.? Then you read the small print.? Your insurers want you to use their panel solicitor and you appear to have no right to choose your own lawyer.? Can this be right?

Surely European Community directives and judgments have been in place for ages enshrining this fundamental right?

If you are surprised that insurers? practice does not always follow the law then that accords with the surprise expressed by the Court of Appeal in a major judgment that was handed down just before Christmas last year.

Lord Justice Longmore actually stated in the judgment: ?The facts of this case have revealed that the insurers exhibit an insouciance to their obligations under the Directive and the Regulations which leaves one quite breathless.?

He went on to state:? ?The Regulations (and the Directive) make it entirely clear that the insured?s freedom to have the lawyer of his choice is to be expressly stated in the contract made with the insured.?

The Court found that the insurance policy that they were considering in that case failed to comply with the Regulations and the European Directives.? As Lord Justice Longmore said: ?It is quite wrong that, despite the warning shot delivered to legal expenses insurers by this Court in Sarwar v Allen (2002) ? insurers should many years later be issuing policies which do not comply with the Regulations.?

However, the judgment given by the Court of Appeal is not entirely against the insurers because the Court of Appeal felt that the insurers could limit the costs for which they were liable to the insured to their non panel rates (these are the rates paid to solicitors not on the insurer?s panel which are usually still below normal commercial rates).

However, what if you want to instruct a lawyer who is not willing to accept the lower rate offered by your legal expenses insurer?? Won?t this in practice restrict the individual?s right to choose their lawyer?

It may be the case that there will be further litigation on this point because whilst the Court of Appeal stated that the insurers could limit the costs for which they were liable to the insured to their non panel rates that was on the basis that the freedom of choice guaranteed by Directive 2009/138 was not ?rendered meaningless?.? Therefore it appears that there is scope for further argument on this related issue.

However, this Court of Appeal judgment is important because it emphasises again that a person with legal expenses insurance does have the right to choose their own lawyer.

Presumably the insurance industry is now busy re-drafting its policy terms and conditions to make them at long last compliant with the law ? about time don?t you think?

Marek Bednarczyk, Partner, Civil Litigation

Our personal injury lawyers are well placed across Surrey and London to provide you with advice on your personal injury claim. To find out more about personal injury speak to our personal injury lawyers in Cobham, Cranleigh, Godalming, Guildford, Wimbledon Village and Woking.

Source: http://blog.hartbrown.co.uk/2013/01/choosing-your-own-lawyer-what-are-your-rights/

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