Freedom Of Choice Of Solicitor For Clinical Negligence Claims

After an accident, which may be someone else’s fault, your initial action may be to contact a solicitor, or a claims handler, to obtain legal advice about your rights.  However it is not enough to know your rights, it is also crucial that when you are considering pursuing a civil claim, you investigate how you will be able to fund the legal costs of bringing that claim.  Those costs can be very high, particularly in clinical negligence claims, and you will need careful specialist advice.

When you first contact your solicitor, they will advise you on how to fund your case.  As part of that process they are under an obligation to consider all methods of funding that may be available to you, such as public funding (also known as Legal Aid) and no win no fee agreements.  However an often overlooked source of funding for your claim is Legal Expenses Insurance (LEI).  You may be entitled to LEI funding and never have realised it until this is pointed out.  It is becoming more and more common as part of household insurance policies and is a special type of insurance that covers you for the legal costs of bringing, or sometimes of defending, a civil claim.  The amount of insurance cover provided varies from one policy to another and not all of them will cover clinical negligence cases, however you may find that you already have cover for up to £50,000.00 worth of legal costs.

If you do have LEI, the solicitor should investigate whether or not the insurer will provide cover for the claim, because it is often in your interests to use that cover, particularly if you have a lower value claim.  Also solicitors should consider if you already have LEI before they offer no win no fee agreements to fund your case.  As a consequence, it will often be the case that:

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•     The investigations in to LEI can result in delay whilst the insurer decides whether or not they will provide cover; and

•    If cover is provided, many insurers do not automatically give you freedom of choice of your solicitor and insist that the claim is dealt with by one of their own panel of solicitors, taking the choice away from the client.  Insurers are keen to pass claims to their panel solicitors because the panel solicitors may provide the work at a reduced rate to the insurer, or will pay them referral fees for being sent the cases.  As a result the client can be forced into using a solicitor they do not know and often who is not local to them.

Very often we are able to overcome this difficulty through discussion with the insurer.  Further to recent case law, we are able to point out that authority from European law provides for the freedom to choose your own solicitor.  The case in question stated that an insurance contract should allow the client a lawyer of their choice, “from the moment he or she has the right to claim under the policy”.

When the European Parliament passes European legislation it is binding on member states, however they are required to pass local laws to enact the European law.  So in the UK, although the UK law passed to enact the European law that allows the client a lawyer of their choice, “from the moment he or she has the right to claim under the policy”, is intended to reflect European law on this point, it is in fact more restrictive.  This is because it only provides for you to have freedom of choice of your solicitor from the moment you start Court proceedings, rather than from the outset.  This is far more restrictive than European law.  It is also very restrictive because, in most clinical negligence claims the majority of the legal work is to investigate your claim and therefore a large proportion of the costs are incurred before Court proceedings are begun.  

In some cases where clients have been unhappy at having to use a panel firm of solicitors, their cases have been referred to the Financial Ombudsman Service (FOS), the insurers’ regulatory body, who also take a restrictive interpretation on the freedom to choose a solicitor.  However, quite helpfully, the Ombudsman has previously ruled that where LEI is being used for a clinical negligence case, and where the matter is of great importance to the client, and the value of the claim is in excess of £15,000, freedom of choice of solicitor should be given to the client at the outset.

The European Court of Justice has also recently given a ruling on this point in the case of Re: Eschig. The judgment in this case has clearly indicated that the UK interpretation of European law may be too narrow and has triggered a review of the legislation here in the UK.  In that case the European Court held that a condition in an insurance policy restricting a client’s choice of solicitor to a panel firm was invalid and that an EU directive granting free choice of lawyer has to be respected over the insurance condition.

This greatly strengthens the position of insured clients who want to choose their own solicitor when they have a claim and gives us an advantage when arguing for you that you are entitled to choose your own solicitor.  If you have a problem obtaining insurance cover for a claim then we will give you expert guidance.
If you think you may have a claim for clinical negligence please contact the Clinical Negligence team in Southampton on 023 8085 7271, London on 020 7814 6902 or Oxford on 01865 248607 or email clinicalnegligenceinfo@bllaw.co.uk
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