ECJ on the Right to Choose One’s Own Lawyer

The Court docket of Justice of the EU (ECJ) not too long ago thought of the problem of an insured individual’s proper to decide on their very own lawyer below a authorized bills insurance coverage coverage, within the case of Orde van Vlaamse Balies and Ordre des barreaux francophones et germanophone v Ministerraad (Case C-667/18).

Comparable questions have come earlier than the ECJ a number of instances in recent times in several contexts inside authorized bills insurance coverage. There may be usually a wrangle between insurers and the insured on the problem.

Insurers might attempt to insist that the insured should appoint a defence lawyer from the insurer’s personal panel. It makes industrial sense for the insurer, as they’re normally liable for funding the insured’s authorized charges and panel legislation agency charges have been pre-agreed by the insurer. Nevertheless, the insured’s personal authorized consultant will know their shopper’s enterprise higher. Typically they already be briefed and have suggested on the matter earlier than the insurer will get concerned and instructs attorneys from its personal panel.

This case thought of the which means of Article 201(1) (a) of the Solvency II Directive, which reads:

“(1) Any contract of authorized bills insurance coverage shall expressly present that:

(a) the place recourse is needed to a lawyer or different individual appropriately certified in keeping with nationwide legislation to be able to defend, signify or serve the pursuits of the insured individual in any inquiry or proceedings, that insured individual shall be free to decide on such lawyer or different individual“.

The query was whether or not the time period “proceedings” referred to in that Article contains judicial or extrajudicial mediation proceedings wherein a courtroom is concerned or is able to being concerned.

The ECJ dominated that “proceedings” did certainly embody judicial or extrajudicial mediation. Certainly, the ECJ held that “…any stage, even a preliminary stage, which is able to resulting in proceedings earlier than a judicial physique should be considered falling inside the time period ‘proceedings’“.

This resolution displays the ECJ’s method of a broad interpretation of the rights of insured individuals, consistent with the context and aims pursued by EU Directives, which search to supply sufficient safety for the pursuits of insured individuals. The place is evident, specifically that freedom of alternative of a lawyer can’t be refused.