If i have BTE Legal insurance can i choose my own solicitor?
The case of Brown-Quinn & Another v Equity Syndicate Management Limited & Another (2011) EWHC 2661 concerns those with legal expense insurance. It now means that the insured can instruct a solicitor of their own choice and is not restricted to the list of solicitors prescribed by the insurer from their panel.
- The majority of Insurers decide which solicitor you are able to use. This is irrespective of whether their choice is one you would have chosen yourself. A major reason is that their panel solicitors will charge the insurance company much lower fees.
- That doesn’t help you if you have a trusted solicitor or have researched and found who you think is the best available for the job or have been recommended a solicitor.
Under the Insurance Companies (Legal Expenses Insurance) Regulations 1990 you can choose the solicitor you want to represent you.
Regulation 6 states that:
- (1) Where under a legal expenses insurance contract recourse is had to a lawyer (or other person having such qualifications as may be necessary) to defend, represent or serve the interests of the insured in any inquiry or proceedings, the insured shall be free to choose that lawyer (or other person).
- (2) The insured shall also be free to choose a lawyer (or other person having such qualifications as may be necessary) to serve his interests whenever a conflict of interest arises.
- (3) The above rights shall be expressly recognised in the policy.
- A conflict of interest will usually arise where the insurer is providing different types of insurance cover, usually both BTE legal insurance and another class of insurance in such circumstances, the Regulations will apply and cannot be excluded and a policyholder will be entitled to instruct whomsoever it wishes as its lawyer.
- It will also be a breach of the Solicitors Code of Conduct. A solicitor’s agreement with a third party’s restriction on client choice could compromise the solicitor’s independence or where such a restriction may not be in the best interests of a client.
- If you object to that which has been nominated many insurers will agree to the appointment of your own choice but not all will. Those that do not tend to say the right only arises once proceedings have been issued and that their appointed solicitor needs to be used until then. That means you would have to change solicitor at a certain point. It could prove costly as you may have to pay the new solicitors fees to get up to speed and it won’t necessarily help your case to move at what could be a crucial point.
- The Courts have held that “proceedings” include steps taken once you have formally notified, or have been formally notified, that a claim is being made, in other words very early in the litigation process. This effectively means that in the majority of cases that right to choose can be exercised long before any Court action starts.
- In the past insurance companies have insisted, if an alternative solicitor is instructed by the client who is not on their panel that, that solicitor only charges the same rate as the panel solicitors. Often this is a very low rate which has been negotiated between the panel solicitors and the insurance company on the basis that they have a large volume of work given to them. Your chosen solicitor may not be too keen to act on very low rates.
- The judge in the above case found that the fees of solicitors, who agreed not to accept the prescribed rates should be assessed pursuant to CPR Part 48, are not restricted to those panel rates, but would be taken into account.
- The decision is an important one for solicitors and for client’s who are able to instruct their own solicitors or choose a Solicitor with expertise in the area in which they want to bring their claim.
- The issue still remains as to what point clients are entitled to instruct a solicitor of their choice. Insurance companies are still attempting to argue that proceedings start when the claim is issued not before. And they can therefore still insist that the client uses a panel solicitor until that point. Unfortunately the judge in this case did not finally deal with this aspect and make the position clear.
- Reference can be made to the case of Crosbie v Monroe (2003) where Lord Justice Brooke stated
- “that the dealings between the parties which lead up to the disposal of a clinical negligence claim are to be treated as proceedings for the purpose of that paragraph even if that dispute is settled without the need to issue a Claim Form”.
Insist from day one that your BTE Legal expenses insurer agrees to the instruction of a Solicitor of your choosing.
For advice call Carruthers Law today or fill in one of our enquiry forms.
Revised May 2012