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BTE insurance: freedom to choose your own lawyer

10 November 2011

The High Court has recently held that before-the-event (BTE) legal expenses insurers cannot reject a policyholder's choice of a non-panel solicitor on the sole basis of cost.

Case background and summary of facts

(1) Christine Brown-Quinn (2) Webster Dixon LLP v (1) Equity Syndicate Management Ltd (2) Motorplus Ltd; Webster Dixon LLP v (1) Equity Syndicate Management Ltd (2) ACM ULR Ltd; (1) Janine Baxter (2) Webster Dixon Ltd v (1) Equity Syndicate Management (2) Motorplus Ltd. [2011] EWHC 2661 (Comm)
Read full case

The three clients had various claims against other parties for which they wished to bring or continue proceedings with the benefit of their before the event (BTE) insurance. One client instructed a non-panel firm of solicitors from the beginning. The other two clients were both referred to panel solicitors by the insurers, but in each case the case handler left the panel solicitors and joined the non-panel firm. Here there were cases which from the onset the client sought to instruct a non-panel firm (onset cases) and cases where there was a transfer of instructions (transfer cases) to a non-panel firm.

The position taken by the insurers was that, in both types of case, they were entitled to insist that if an insured did not wish to instruct a panel solicitor any other solicitor of the insured's choice must not charge more than the rates prescribed by their terms of appointment for non-panel solicitors, here an hourly rate of  125. In the case of two of the clients this rate of  125 was increased to  139 (non-panel rates). In each case there was a dispute about the rates and the insurers informed the firm that they would not agree to their acting for all the claimants. The firm continued to act for the three clients. The insurers in the case refused to agree to what the firm considered to be reasonable rates.

The High Court on 21 October declared that BTE insurers were not entitled to decline to accept the insured's choice of solicitors under the policy on the basis that their rates of remuneration were in excess of those stipulated by the insurers in their terms of appointment of non-panel solicitors. The fees of solicitors who had not agreed to the prescribed rates should be assessed pursuant to CPR Part 48, not restricted by those rates but taking account of them.

The defendants were granted leave to appeal to the Court of Appeal. Grounds to appeal are due to be lodged by no later than Wednesday 23 November.

Law Society comment

This case raises an important issue for the profession regarding freedom of choice of solicitor pursuant to The Insurance Companies (Legal Expense Insurance) Regulations 1990 (the Regulations) which were enacted under section 2(2) of the European Communities Act 1972 with the intention of implementing the Legal Expense Insurance Directive (87/344/EEC). The decision supports the Law Society's view that insurers cannot impose terms on non-panel solicitors which effectively deny a client the right to choose their own solicitor to act for them under the terms of a legal expense insurance policy.

The way in which insurers interpret these regulations has concerned the Law Society for some years and this case addresses one significant issue. However, there is a further question about the point at which clients are entitled to instruct their own solicitors. Insurers appear to be interpreting this narrowly as being the point at which proceedings are commenced. The Society takes the view that, in order for true freedom of choice to exist, it needs to be at a much earlier stage. This question was not dealt with in this case and until such time as it is dealt with in a proper context, solicitors must rely upon Crosbie v Monroe ([2003] 3 Costs LR 377) in which Lord Justice Brooke stated 'the dealings between the parties which lead up to the disposal of a clinical negligence claim are to be treated as 'proceedings' for the purposes of that paragraph even if the dispute is settled without the need to issue a claim form.'

The Law Society will continue to take an active interest in the case. In the meantime, we would be very interested to learn of any occasion when an insurer has denied a client the right of freedom of choice of solicitor.
Details should be sent to martin.heskins@lawsociety.org.uk.