Latest insights from our experts
Posted 29 November 2013
Legal expenses insurance: your right to freely choose a lawyer
The Legal Expenses Insurance Directive makes it clear that where recourse is had to a lawyer, an insurance company cannot prevent their insured from selecting the solicitor of their choice to conduct legal proceedings.
In the recent case of Jan Sneller –v- DAS the European Court of Justice considered whether an insurance company could provide terms that restricted the circumstances in which recourse could be had to a lawyer.
The case originated in the Netherlands and involved a dismissed employee who sought to bring legal proceedings against his former employer on grounds of unfair dismissal, using his DAS legal expenses insurance.
The insurance contract stipulated that DAS’s own unqualified staff were to be used to deal with a case. The insured person only had the right to instruct a lawyer if in DAS’s opinion the case should be referred to external counsel.
In the Netherlands, legal assistance in these kinds of proceedings is not compulsory therefore DAS insisted that their own staff should be used to deal with the case. However Mr Sneller wanted to instruct an external lawyer.
The case revolved around who had the right to decide whether external counsel should be used, the insured or the insurance company.
The European Court of Justice decided that regardless of whether legal assistance is compulsory, an insured person had the right to decide whether external counsel should be used. They held that an insured person should have the freedom to choose his lawyer and that freedom cannot be restricted to the situations that the insurance company decide are appropriate.
However the courts additionally held that although every insured person has an unrestricted right to choose a lawyer, Member States of the European Union were not obliged to require that insurers covered the costs in full in all circumstances, subject to the freedom of choice not being rendered meaningless by restrictions on payment of costs.
This is good news as it means park owners are entitled to decide which lawyer represents them on any issue covered by their insurance. It will be open to park owners to agree cover providing for higher legal costs, possibly on payment of a higher premium, to ensure that they can use specialist lawyers such as Tozers who have expertise in the parks industry rather than lawyers from insurance company panels who may have no such expertise.
If you have any questions regarding this blog or regarding parks issues generally then contact the parks team on telephone 01392 207020 or by email firstname.lastname@example.org