Thursday, 14 November 2013
ARAG UK Policyholders are guaranteed fair treatment when they have the right to choose a lawyer to represent them in proceedings.
The European Court published its decision on 7th November in the case reported on as “The Sneller Case”. This concerned the “free choice of lawyer” in legal protection insurance.
While some commentators have given the impression that the outcome of the Sneller case is somehow controversial and likely to cause UK insurers to change their position with regard to freedom of choice that isn’t the case for ARAG policyholders who have long since been permitted and always will be able to exercise their legal right to choose. In case you need a refresher here is the back ground to the case.
Background to Sneller
The case was referred to the EU Court consequent to a request by the Dutch Supreme Court in proceedings between Mr Sneller and DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV (‘DAS’), seeking clarification on how the EU Directive 87/344 (which regulates freedom of choice in legal expenses contracts and is transposed into national law in the UK by the Insurance Companies (Legal Expenses Insurance Regulations) 1990) should be interpreted.
Mr Sneller was a policyholder of DAS in the Netherlands who wished to use his own lawyer for an employment claim. DAS required Mr Sneller to use its own in-house lawyer on the basis that it is not mandatory to engage a registered lawyer to represent claimants in employment disputes in the Netherlands and the insurance contract limited freedom of choice to cases where a claim must be delegated to external counsel or where in DAS’s opinion it was necessary to instruct an external lawyer.
Mr Sneller argued that if judicial or administrative proceedings are brought, the contract terms must always offer the insured person the right freely to choose his legal representative.
The EU Court judgment
The first two rounds went to DAS, but the European Court agreed with Mr Sneller and ruled that EU law on freedom of choice prevents a legal expenses insurer, which stipulates in its insurance contracts that legal assistance will be provided by its employees, from also providing that the costs of legal assistance provided by a lawyer or legal representative chosen freely by the insured person will be covered only if the insurer takes the view that the handling of the case must be subcontracted to an external lawyer.
Secondly the EU Court said that this limitation on the rights of legal expenses insurers would apply irrespective of whether or not legal assistance is compulsory under national law in the inquiry or proceedings concerned.
According to this judgment, DAS had restricted the insured’s freedom to choose a lawyer for legal assistance in a non-acceptable way, by reserving the right to decide whether an external lawyer is necessary or not to handle the particular case.
Regarding the cost impact of this decision (particularly for those legal protection insurers who provide a large part of their legal assistance through their employees) the European Court has explained that the premium might be adjusted or costs payable by the insurer may be limited. In order to guarantee a free choice of lawyer it is not necessary to cover all costs borne by the insured, as long as that freedom is not rendered meaningless.
For detailed information here is a link to the EU judgment.
ARAG UK’s position
ARAG UK does not use in-house lawyers to represent claimants. We work with a nation-wide panel of firms that consistently deliver superior levels of customer service that we insist on and have appropriate expertise in the areas of law covered by our policies.
When it becomes necessary to issue proceedings our policyholders can choose their own solicitor if they wish but will be responsible for excessive costs where a firm will not agree to work according to our terms of business which allow for reasonable and proportionate costs. This is also true for applicant employment tribunal cases despite the fact that in common with the Netherlands it is not compulsory for representation to be provided by a qualified lawyer. Freedom of choice does not engage where an insurer covers damages or compensation – as in the case of employment compensation awards cover. 93% of ARAG claimants benefit by having their claim handled by a panel firm
If in the future we were to engage in-house lawyers we recognise that freedom of choice is triggered at the point it becomes necessary to issue proceedings and any such developments would be implemented on that basis.