ECJ Preliminary rulling on right of insured to choose lawyer under legal expenses policy

It held that article 4(1) of the Council Directive does not permit a legal expenses insurer to insist that the costs of legal assistance provided by a lawyer chosen by the insured will only be covered if the insurer considers that an external lawyer should be instructed rather than the matter being dealt with by the insurers’ own employers. It also confirmed that the position would be no different if legal assistance was not compulsory under the national law in question. The reason for this was that the right to choose a representative applied generally, was by its nature obligatory, and was not subject to national rules on legal representation.

While the decision is helpful in confirming that the insured’s right to choose his own lawyer cannot be restricted to situations where the insurer itself decides that an external lawyer should be used, it takes us no further forward as to the point at which the individual’s right to choose their own lawyer kicks in - whether this is at the pre-action stage or only when proceedings actually commence.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.