We already wrote about it in 2020. In a case brought by the Belgische Advocatenordes, the European Court of Justice determined that the right to free choice of lawyer also exists in a mediation procedure. This right is therefore not limited to a judicial or administrative procedure, as is usually stated in the general terms and conditions of the average legal expenses insurer. In doing so, the Court interpreted the right to free choice of lawyer “broadly”, so that the preparatory phase also falls within it (HvJ EU 14 mei 2020, C-667/18, ECLI:EU:C:2020:372).
This ruling fits in the extension of the landmark judgment of 2013 concerning DAS/Sneller (right to free choice of lawyer in judicial proceedings) and in 2016 the expansion to administrative-law procedures (objection to dismissal at the UWV, objection to an indication decision in healthcare, Massar/DAS and Büyüktipi/Achmea, CJEU 7 April 2016, C-460/14, ECLI:EU:C:2016:216 and CJEU 7 April 2016, C5/15, ECLI:EU:C:2016:218).
After that it was a matter of waiting for confirmation that this also applies to Dutch legal expenses insurers. On 31 March 2021 Kifid (Financieel Klachteninstituut) has now confirmed this in a binding ruling. It concerned a triathlete who had to engage a lawyer following a publication that damaged her reputation. DAS Rechtsbijstand refused to reimburse the lawyer’s fees because there was not yet a judicial or administrative procedure. Kifid rules that DAS Rechtsbijstand was not allowed to refuse that, given this recent judgment of the Europese Hof. Kifid states that this judgment has general applicability within all member states, therefore also the Netherlands. From the judgment of the Europese Hof Kifid derives the following:
“This means that an insured person, in the event of a claim under the legal expenses insurance, is entitled to the free choice of lawyer in any phase that may lead to proceedings before a court.
However, it is a condition that there must be a conflict, to be defined as the existence of opposing interests.”
This is a significant defeat for the legal expenses insurers. They try to serve their clients as much as possible with their own lawyers. If everyone can retain a lawyer at the expense of legal expenses insurance, it will become far too expensive. DAS Rechtsbijstand therefore complained to Kifid that the legal expenses insurer would become too expensive if every insured person could make use of this right to choose a lawyer freely. Kifid makes clear that this is the insurer’s problem and not the insured’s. However, the insurer may, within the limits of the policy, make agreements with the insured and the lawyer about which costs are and are not reimbursed.
See the full binding decision of Kifid: https://www.kifid.nl/wp-content/uploads/2021/04/Uitspraak-2021-0300-Bindend.pdf
