Freedom to choose your own solicitor? | Mayo Wynne Baxter
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Freedom to choose your own solicitor?

Introduction

If you have an insurance policy which offers legal expenses cover, it will probably insist that the insurers’ own panel solicitors are instructed in the event that you have a claim. However, although this may be convenient and appropriate in a simple low value claim, such as a car accident where you have suffered a mild whiplash injury, it may not be the right choice for you to make if your case is more complex or serious and you may want to make the important decision of who to instruct yourself.

Right to Choose

Although the policyholder would appear to have the right to choose which solicitors represent them, legal expenses policies tend to give the insurer the choice to appoint solicitors to provide advice and assistance up to the time where legal proceedings start. This choice is taken from a predetermined panel of a number of law forms based nationwide.

However, there are a number of circumstances where a policyholder can appoint their own solicitors from the very start, such as where a conflict of interest exists.

Regulation six of the Insurance Companies (Legal Expenses Insurance) Regulations 1990 comes into play when proceedings are issued, allowing policyholders to then choose their own solicitors. However, often due to not being aware of this right, being content with their current representation or simply not wanting to go through the effort of a change, many policyholders will just remain with the appointed panel solicitor, rather than exercise their freedom of choice.

At Mayo Wynne Baxter, we are happy to take on cases currently being handled by the insurance company’s panel solicitor.

When is it best to use your own choice of Solicitor?

The Financial Ombudsman has commented that it expects insurers to agree the appointment of a policyholder’s preferred solicitor in large or complex personal injury claims.

There are other circumstances where it may be unreasonable, or out of line with good industry practice, for the insurer to refuse the appointment of the policyholder’s own chosen solicitor. These include:

  • Where the policyholder’s own solicitors have already had considerable involvement in the matter and have a good knowledge of it, the issues giving rise to the dispute or related matters.
  • Where there is a suggestion of a conflict of interest.
  • With email, phones and webcams, the location of a panel solicitor should not affect the way the case is actually handled. But sometimes it does, as it is difficult to convey the intricacies of a case without proper face-to-face meetings, making a local solicitor more important and convenient.
  • Where there are other benefits, such as the solicitor having local knowledge; being able to carry out site visits; experience of local medical or other experts and knowledge of particular courts and more importantly, the characteristics of their Judges!

Check Your Policy Terms

In the event of a claim, it is important that you check through the terms of your policy.

Most expressly exclude legal costs that a policyholder might incur before the claim was notified to the insurer or before the insurer authorised any work. The insurer will usually be able to exclude these costs, as long as they can show that they have been prejudiced by them.

However, if you go ahead and instruct a solicitor of your choice and incur costs, without knowing that the insurer is unlikely to fund the advice, their stance can be challenged if the policy does not include a clear and intelligible statement of what it does and does not provide.

Quality

Insurers sometimes have legitimate commercial and quality-control reasons for preferring to use their panel solicitors, with whom they have negotiated low cost rates. However, whilst investigating complaints, the Financial Ombudsmen noted that, in general, they saw no evidence of any systematic difference in quality between the work of “panel” and “non-panel” solicitors. However, insurers might accept that in some (admittedly relatively infrequent and unusual) cases, its panel might not include solicitors with the relevant expertise or specialist knowledge.

If you are pursuing or defending a personal injury claim or are party to an inquest and want to change your current representation, or want your own solicitor from the start, then Mayo Wynne Baxter would be happy to act and would be able to contact your insurers direct.

By Michael Mulcare

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