Choosing your own solicitor in clinical negligence insurance claims cases is an important right that should be safeguarded. Tanzeela Aslam explains why.
Policyholders pursuing clinical negligence claims that involve legal expenses insurance (LEI) can be frustrated when the insurer tries to instruct a solicitor, rather than allowing the policyholder to select their own.
Insurers typically have ‘panel solicitors’ who they appoint on a regular basis – for understandable commercial and quality-control reasons.
Why insurance firms like to use their own solicitors
Insurers sometimes have no objections to using a policyholder’s own solicitor, although there have been recurring problems of policyholders experiencing issues when this doesn’t happen.
Insurers often refuse to accept that policyholders have a legal right to choose their own solicitor because this would prevent insurers from using their own panel lawyers, and potentially remove their ability to control legal advice and costs.
Insurers also say policies are technically complex and their panel solicitors are best equipped to understand the particular issues involved.
The policyholder’s right to choose
Notwithstanding these arguments, the legal position is clear: as the policyholder, you have the freedom to choose your own solicitor and do not have to use a panel solicitor put forward by your insurer.
It is important to keep in mind, though, that in most cases legal expenses insurance does not come into play until a dispute arises, which may involve an ‘after the event’ or ATE premium. This does not mean policyholders can be denied their right to choose their own solicitor, and clinical negligence claimants can avoid paying ATE premiums by doing just this.
The freedom to choose actually starts when legal proceedings must be instigated – in other words when negotiations have broken down and the lawyers involved agree that legal proceedings need to be issued. Therefore, it is usually safe to assume that the policyholder’s selected solicitor is qualified to carry out any work involved in preparing the claim form, along with any other actions required to initiate the legal action.
Being firm with your insurer
Policyholders should also be aware that insurers will indemnify them – although you normally have to provide regular updates and agree formal terms. It is frequently at this point that insurers start to be difficult and try to induce the policyholder to use one of the insurer’s panel solicitors.
Faced with such a situation, a policyholder who wants to instruct their own solicitor should stand firm.
You only need to provide the basic details of your legal expenses insurance and any capable clinical negligence solicitor will be able to make enquires as well as completing the claim form on your behalf. It should be emphasised that this is a relatively straightforward task for experienced solicitors.
For further advice on legal expenses insurance and choosing your own solicitor, call Tanzeela Aslam on 0161 761 4611 or email her at Tanzeela.Aslam@whnsolicitors.co.uk
