Page 30 - BOSS Today Issue 21

HEALTH & SAFETY

FREEDOM

TO CHOOSE

A company’s right to select its defence lawyer is enshrined in law, but there

are some things you also need to think about…

hen an accident takes What The Law Says This was a preliminary ruling The level of fees paid by
Wplace in the workplace Under the Insurance Companies concerning an insured person’s insurers and the freedom of
and the HSE knocks on the door (Legal Expenses Insurance) freedom to choose a lawyer. choice of lawyer came before
to investigate, the company Regulations 1990, regulation 6 Although the key issue here the Court of Appeal in the
affected will want to obtain instructs: ‘where under a legal was whether a lawyer or non- case of Brown-Quinn v Equity
legal advice as early as possible. expenses insurance contract lawyer provided representation, Syndicate Management Ltd
In most cases, members will recourse is had to a lawyer... to the decision of the court [2012]. Here, the insurer refused
discuss the incident with their defend, represent or serve the emphasised the right of the to accept the solicitor appointed
local BOSS Health, Safety and interest of the insured in any insured person or company to by the insured because its
Environmental (HS&E) Advisor, inquiry or proceedings, the instruct a lawyer of their choice. hourly rates were higher than
including the likelihood of a insured shall be free to choose
criminal prosecution being that lawyer... The above rights
taken against the organisation shall be expressly recognised in
and/or an individual. that policy’.
If the incident is of a This applies to any policy
nature that merits regulatory that provides cover for legal
investigation, the company will expenses, even if this is only part
also need to speak to its broker of the terms of the insurance. In
or insurer to ascertain whether other words, these provisions
its insurance will cover the legal cover Employers’ Liability and
costs of representation. It is not Public Liability policies.
unusual for the insurer to insist The 1990 regulations
that the company instructs one implemented the European
of the insurer’s solicitors rather Legal Expenses Insurance
than selects a lawyer of its own Directive 87/344/EEC. A
choice, and to refuse cover if Netherlands case (Sneller v
the company declines to accept DAS C-442/12) concerning
these terms. But the fact is that the directive came before the
insurers have no legal right to European Court of Justice in
do this. Luxembourg in November 2013.

30 BOSS TODAY | February/March 2014

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