It has long been established that under Directive 87/344/EC policyholders have the right to a free choice of representative in legal proceedings. The trouble is that this is often difficult to secure as insurers insist that legal proceedings are only after issue and a policyholder should use their panel solicitor notwithstanding the geography and that they have already sought advice elsewhere and can only return to their solicitor after the panel solicitor has drafted proceedings. Others put obstacles in the way in terms of fee rates and fixed fees which can all have the affect of curtailing that freedom in many cases.
Reported cases are rare but we have just had a reported case on this issue from the European Court in Jan Sneller v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij, which held that an insurer is not entitled to insist on using its own in-house lawyers. In this case, the Claimant instructed a lawyer to represent him in his unfair dismissal claim but DAS refused to cover the costs. They relied on part of his policy which stated that external lawyers could only be used if DAS considered the external lawyers were necessary. The Court held that this was unduly restrictive on the policyholder’s freedom of choice in legal proceedings. Sadly, many of the issues over the insurers’ policies remain unresolved by the decision but it is nevertheless a victory for the policyholder.