18 June 2020

Extended right to a free choice of lawyer

By Koen Vermeulen

The right to a free choice of lawyer means that a private individual who is insured for legal assistance in the event of a legal dispute can ask the legal expenses insurer to hire a lawyer of his or her own choice.

Under the policy conditions, the costs of that lawyer are for the account of the legal expenses insurer. In general, there is a right to a free choice of lawyer in the case of legal proceedings. The Court of Justice of the EU recently extended this right to the mediation stage.

GMW lawyers contributes to the extended free choice of lawyer

The Court of Justice of the EU had already determined in 2013 that an insured person can always choose a lawyer themselves – in popular terms at the expense of the legal expenses insurer – in case of judicial or administrative proceedings. Think of a lawsuit with the subdistrict court about dismissal, pension or rent. Proceedings on benefits or permits before an administrative court also fall under the free choice of lawyer. Naturally, this free choice additionally applies to procedures in which a lawyer is required by law.

A few years later, in a case in which GMW lawyers assisted the insured party, the same Court of Justice determined that free choice of lawyer also applies to assistance in the UWV dismissal procedure. The term judicial or administrative must therefore be interpreted broadly for the benefit of the insured.

Free choice of lawyer in settlement negotiations

On 14 May 2020, the Court of Justice of the EU added something to that broad explanation. It has been decided that the free choice of lawyer also applies to a “judicial or extrajudicial mediation” in a Belgian case. Although such a legal mediation system does not exist in the Netherlands, this ruling does have consequences for policyholders in the Netherlands. The European judges hold that under “judicial procedure”, the run-up to this also applies. Therefore, the right to a free choice of lawyer also applies to the previous phase of a procedure. In our view, this too should be interpreted broadly and, for example, the phase of settlement negotiations and mediation falls under the right to a free choice of lawyer.

In short, the decision of 14 May 2020 implies that a legal expenses insurer must reimburse the costs of the insured party’s lawyer’s fees with regard to legal assistance in proceedings and in the preparatory phase (file study, determining strategy, settlement negotiations) on the basis of the policy conditions.

Just as in the years that we conducted the procedure for a DAS insured person in “Europe”, we are still happy to assist private individuals in (the preliminary phase of) disputes involving the free choice of lawyer.

Feel free to contact me in this regard.

Koen Vermeulen

Koen Vermeulen

Lawyer / associate partner

Koen Vermeulen is your sparring partner for all questions on employment law, employee participation and pensions.

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