Legal expenses insurance

Last updated

Legal protection insurance (LPI), also known as legal expenses insurance (LEI) or simply legal insurance, is a particular class of insurance which facilitates access to law and justice by providing legal advice and covering the legal costs of a dispute, regardless of whether the case is brought by or against the policyholder. Depending on the national rules, legal protection insurers can also represent the policyholder out-of-court or even in-court.

Contents

History

Legal protection insurance has a 100-year history. [1] The concept originated in 1911 when members of the 'Automobile Club de l’Ouest' were offered several additional services among which protection in case of fines or for disputes in front of police courts. This basic legal protection was then extended to traffic accidents and gave rise to the first legal protection insurance policy in France offered by ‘La Défense Automobile et Sportive (DAS)’ which was founded in 1917. ‘La Défense Automobile et Sportive (DAS)’ offered legal services and coverage of expenses for legal prosecution to car drivers and athletes. [2]

In 1928, a motoring club in Germany called the Deutsche Automobil Schutz (D.A.S.) increased membership contributions to create a similar pool to pay for the defence of its members charged with traffic related offences. Members of the general public then enquired about joining the scheme. That is when the idea of an insurance available to the general public became firmly established. At present, D.A.S. Germany is still the largest legal protection insurer in the world, followed by ARAG, another German insurer. Legal protection insurance is today well established in Europe and has been developing beyond. The German market alone has 36% market share worldwide, followed by France with 12%. The European market represents more than 80% of the global legal protection insurance market. [3]

Purpose and scope

Legal protection insurers cover the costs (e.g. legal fees and expenses of a lawyer) incurred in case of an unforeseen legal matter. These costs usually include lawyer and court fees, witness expenses, translation costs or expert fees. Depending on national law, legal protection insurers also provide legal services and represent policyholders out-of-court or in-court. The policyholder is usually protected for disputes in several areas of law such as contract, labour, consumer and family law (in rare cases including divorce). The premium is generally paid on an annual basis.

The extent of the cover depends on the type of contract and is defined in the policy terms and conditions. When the policy is sold as part of a home, motor or travel insurance package (i.e. add-on policy) it only covers disputes strictly linked to the purpose of the main cover (e.g. home related claims such as disputes with neighbours or car related disputes in case of a motor legal protection insurance). When legal protection insurance is purchased as a separate and independent insurance product (stand-alone cover) the range of services provided, the extent and scope of the cover are much larger. Sometimes legal protection insurance is offered as a benefit to members of a trade union or association.

In the European Union, precise rules govern legal protection insurance and explicitly define how insurers must organise their business and manage claims. These rules are included in the Solvency II Directive (Articles 198 - 205). [4] Non-life insurance classes are listed in Annex II of the Solvency II Directive. [5]

Legal protection insurance should not be confused with the coverage often included in a liability insurance. Liability coverage is designed to protect the policyholder against losses resulting from acts or omissions that are negligent and that result in damage to another person, their property or interests. Therefore, the main scope of third party liability insurance is to protect others from the consequences of the policyholder’s wrong-doing. In other words, the third-party liability insurance reimburses the other party’s damages which were caused by a negligent act of the insured. It does not intervene to protect the property and interests of the policyholder, except against being held liable for the other party’s damages. It will also provide legal representation and pay the cost of defense of the policyholder if the policyholder is sued as a result of being involved in an accident because losing the liability claim would be detrimental for the liability insurer since he would have to bear the financial consequences. The liability insurer, however, does not assist the policyholder to seek justice as a plaintiff in case he suffered a damage.

Different forms of legal protection insurance exist and have developed depending on the national jurisdictions. Traditionally, legal protection insurance covers unforeseen events as Before-the-event insurance (BTE). The event in this case being the incident triggering the legal action. However, in some countries (e.g. Australia, Canada, and the UK), it is also possible to obtain cover after a legal dispute has been initiated which is described as After-the-event insurance (ATE). In the US market, legal protection and support is often granted via legal plans or pre-paid legal services which, most of the time, are not an insurance.

This form of insurance is the most widespread. It covers those wishing to protect themselves against possible future claims and it is purchased before the prospect of any legal dispute. It supports the policyholder either by providing legal advice or even by representing the policyholder in-court or out-of-court. It also covers the costs and expenses of legal proceedings.

After-the-event or ATE policies insure legal actions relating to events that have already happened. This insurance covers an already existing dispute where, however, proceedings have not yet started or significant legal costs or disbursements have not been incurred. Should the case fail, ATE insurance protects the insured against the risk of having to pay own expenses and adverse costs. This type of cover is usually only available for disputes having high prospects of success where the insurer is likely to be able to recover his costs from the adverse party. It is available in Australia, Canada, and the UK.

In the UK, solicitors who take on, for example, personal injury cases on a "no win no fee" basis may require their clients, whether defendants or plaintiffs, to take out ATE insurance so that costs will be covered if the case is lost. The premium payments, especially in a no win no fee arrangement, may be deferred until the conclusion of the case; thus in most cases the premium itself is self-insured. This insurance is often offered by solicitors and claims management companies. Section 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 [6] (which came into force on 1 April 2013) introduced an important change regarding the recoverability of the premium: before the Act went into force the policyholder could recover the premium paid from the losing party whilst now the premium has to be paid by the client out of any damages received.

By jurisdiction

Overview

The European market for legal insurance is well-developed, with Germany, France and the Netherlands, representing respectively 43%, 14%, and 8% of the market. Legal protection insurance has become [ when? ] more common outside of Europe, including in Canada, Japan, South Africa and USA. It is also emerging in Australia, Chile, China, New Zealand and South Korea.

European Union and members

According to a survey commissioned by RIAD and conducted by Ipsos in August 2017 in Germany, France, Ireland, and the Netherlands, over a quarter of respondents had had a legal dispute in the previous five years. The replies showed that in all four countries people are mainly concerned about the costs of a dispute, this is particularly true in Ireland (50% of respondents) where fees for lawyers are extremely high. In comparison to the other countries, Dutch citizens are particularly wary of wasting time and energy (33%) while Germans tend to be concerned about being deprived of their rights (27% compared to 18% in Ireland and only 10% and 8% in France and the Netherlands). [7] This is further complicated by the freedom of member states to regulate differently from the EU in some matters, for example necessitating insurance for individual farms which grow genetically engineered crops and intend to sell them to other EU member states. [8]

Germany

Four out of ten Germans would be willing to take legal action if the average damage cost is around 600 €. [9] Legal insurance in Germany covers the lawyer fees and court costs. Some policies even pay for the bail. [10] There are four types of legal insurance in Germany: private, traffic, real estate, and work. The cost of legal insurance varies based on the type of legal insurance. Customers can even take one or multiple types of legal insurance. The legal insurance policy in Germany cost between 75€ and 478 € per annum as of 2024. [10]

There are also several unions that offer legal support. For example, tenant associations and landlord associations offer legal advice to tenants and landlords respectively. These associations even help their members to settle the dispute out-of-court. However, associations offer no support when the case ends up in court. Legal insurance pays when the case goes into court. [10] Lawyer's fees calculation are based on the Lawyers' Compensation Act (RVG). [11] Per RVG, a lawyer's fee is calculated based on the amount or value in dispute.

Canada

The Canadian market has been growing rapidly and several companies (some native, some US-based) offer legal protection insurance. In 2016 legal protection insurance gross written premium was around 56 million Canadian dollars; compared to the previous year almost double. In order to promote further access to justice, in 2013, the Canadian Bar Association partnered with DAS Canada, a Canadian licensed specialist legal protection insurance company. [12] In Québec, legal protection insurance is both endorsed and promoted by Québec's law society (bar association), Le Barreau du Québec . [13]

Japan

The Japanese market had a gross written premium of around 600 million euros in 2016, which makes of Japan the fifth biggest market after Germany, France, USA and the Netherlands. In 2016, legal protection cover added-on to motor insurance represented 90% of the market share; this is due to the fact that stand-alone insurance has only been introduced in the last decade.

Netherlands

According to a survey commissioned in 2016 by the Dutch Ministry of Security and Justice, lawyers who provided services through legal protection insurers scored highest in regard of the perceived quality of services as well as on the basis of a peer review. [14]

South Africa

In South Africa, legal insurance is primarily sold directly to consumers without intermediaries. Legal insurers resolve approximately eighty percent of cases through in-house legal counselors.

United Kingdom

In the United Kingdom, legal protection insurance is primarily marketed directly to the end user without an intermediary. The focus is on preventive dispute resolution via in-house lawyers. 80% of issues are resolved in-house. In its report of November 2017, The Law and Practicalities of Before-The-Event (BTE) Insurance – An Information Study, [15] the UK Civil Justice Council concludes that legal protection insurance offers many people access to significant legal assistance. To this end, LPI's legal helplines are filling a real gap in the marketplace and in this regard insurers considerably improve access to justice in the current landscape. The report also sees a general lack of awareness among consumers about the existence of a legal protection cover as such as well as about the scope of the coverage. The report underlines that all stakeholders (lawyers, brokers, insurers, the Law Society, and the advice sector) can actively contribute to improving the awareness of legal protection insurance. With this the report confirms prior findings of two previous reports (Thematic Review of the UK's Motor Legal Expenses Insurance industry by the Financial Conduct Authority (FCA) of 2013, [16] Report of the UK Ministry of Justice published in October 2007 [17] ). The FCA saw that many consumers were not able to distinguish between the cover of motor insurance (protection against liability for third-party damages) and motor legal protection insurance (pursuit of claims to recover uninsured losses and protection against criminal prosecution). The 2007 report of the Ministry of Justice comes to the result that, although 59% of the UK population have some form of legal protection insurance (whether they knew it or not), fewer than one in four consumers had ever heard of BTE nor of ATE insurance. The Ministry's research estimated that 28 million British adults have actually BTE insurance, mostly as an add-on to another insurance policy.

Staged premium policies are available with, for example, an initial premium paid at the initiation of the claim, a second premium paid when proceedings are issued and a further premium paid just before trial, so long as each of these stages is reached. [18]

In May 2012, District Judge Smedley, sitting as a Regional Costs Judge, considered eight test cases, the "Liverpool ATE Premium Test Cases", in which ATE insurance premiums had been taken out by the claimants, in order to look at

whether it [was] reasonable for a receiving party to use block rated policies when cheaper individually rated policies [were] available, whether the use of staged premium policies [was] reasonable or necessary, and whether in protocol cases [lower-alpha 1] there [was] a need for an ATE policy before stage three, given the minimal risk of the claimant not recovering costs. [19]

United States

Pre-paid legal services are relatively new in the United States. There are a variety of online legal services that offer legal plans which usually cover specific events like drafting a contract or a will, while legal protection insurance covers unforeseen events (e.g. employment or consumer disputes). Legal plans rely mainly on bulk savings (for instance mass purchasing of legal services or in-house counsel for a specified group of people, such as trade union members) rather than on insurance principles, i.e. they do not include guarantees like insurance but provide cover only until the accumulated funds are used up. Legal plans are offered by trade unions as a free benefit of union membership or they are set up by groups of people having a common interest, like university students.

See also

Notes

  1. This refers to the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013, otherwise known as the RTA Protocol . [19]

Related Research Articles

<span class="mw-page-title-main">Insurance</span> Equitable transfer of the risk of a loss, from one entity to another in exchange for payment

Insurance is a means of protection from financial loss in which, in exchange for a fee, a party agrees to compensate another party in the event of a certain loss, damage, or injury. It is a form of risk management, primarily used to protect against the risk of a contingent or uncertain loss.

In English civil litigation, costs are the lawyers' fees and disbursements of the parties.

<span class="mw-page-title-main">Life insurance</span> Type of contract

Life insurance is a contract between an insurance policy holder and an insurer or assurer, where the insurer promises to pay a designated beneficiary a sum of money upon the death of an insured person. Depending on the contract, other events such as terminal illness or critical illness can also trigger payment. The policyholder typically pays a premium, either regularly or as one lump sum. The benefits may include other expenses, such as funeral expenses.

Title insurance is a form of indemnity insurance, predominantly found in the United States and Canada, that insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage loans. Unlike some land registration systems in countries outside the United States, US states' recorders of deeds generally do not guarantee indefeasible title to those recorded titles. Title insurance will defend against a lawsuit attacking the title or reimburse the insured for the actual monetary loss incurred up to the dollar amount of insurance provided by the policy.

<span class="mw-page-title-main">Vehicle insurance</span> Insurance for road vehicles

Vehicle insurance is insurance for cars, trucks, motorcycles, and other road vehicles. Its primary use is to provide financial protection against physical damage or bodily injury resulting from traffic collisions and against liability that could also arise from incidents in a vehicle. Vehicle insurance may additionally offer financial protection against theft of the vehicle, and against damage to the vehicle sustained from events other than traffic collisions, such as keying, weather or natural disasters, and damage sustained by colliding with stationary objects. The specific terms of vehicle insurance vary with legal regulations in each region.

In an insurance policy, the deductible is the amount paid out of pocket by the policy holder before an insurance provider will pay any expenses. In general usage, the term deductible may be used to describe one of several types of clauses that are used by insurance companies as a threshold for policy payments.

Home insurance, also commonly called homeowner's insurance, is a type of property insurance that covers a private residence. It is an insurance policy that combines various personal insurance protections, which can include losses occurring to one's home, its contents, loss of use, or loss of other personal possessions of the homeowner, as well as liability insurance for accidents that may happen at the home or at the hands of the homeowner within the policy territory.

Crop insurance is insurance purchased by agricultural producers and subsidized by a country's government to protect against either the loss of their crops due to natural disasters, such as hail, drought, and floods ("crop-yield insurance", or the loss of revenue due to declines in the prices of agricultural commodities.

Universal life insurance is a type of cash value life insurance, sold primarily in the United States. Under the terms of the policy, the excess of premium payments above the current cost of insurance is credited to the cash value of the policy, which is credited each month with interest. The policy is debited each month by a cost of insurance (COI) charge as well as any other policy charges and fees drawn from the cash value, even if no premium payment is made that month. Interest credited to the account is determined by the insurer but has a contractual minimum rate. When an earnings rate is pegged to a financial index such as a stock, bond or other interest rate index, the policy is an "Indexed universal life" contract. Such policies offer the advantage of guaranteed level premiums throughout the insured's lifetime at a substantially lower premium cost than an equivalent whole life policy at first. The cost of insurance always increases, as is found on the cost index table. That not only allows for easy comparison of costs between carriers but also works well in irrevocable life insurance trusts (ILITs) since cash is of no consequence.

In its broadest sense, no-fault insurance is any type of insurance contract under which the insured party is indemnified by their own insurance company for losses, regardless of the source of the cause of loss. In this sense, it is similar to first-party coverage. The term "no-fault" is most commonly used in the United States, Australia, and Canada when referring to state or provincial automobile insurance laws where a policyholder and their passengers are reimbursed by the policyholder's own insurance company without proof of fault, and are restricted in their right to seek recovery through the civil-justice system for losses caused by other parties. No-fault insurance has the goal of lowering premium costs by avoiding expensive litigation over the causes of the collision, while providing quick payments for injuries or loss of property.

Liability insurance is a part of the general insurance system of risk financing to protect the purchaser from the risks of liabilities imposed by lawsuits and similar claims and protects the insured if the purchaser is sued for claims that come within the coverage of the insurance policy.

The Embedded Value (EV) of a life insurance company is the present value of future profits plus adjusted net asset value. It is a construct from the field of actuarial science which allows insurance companies to be valued.

Critical illness insurance, otherwise known as critical illness cover or a dread disease policy, is an insurance product in which the insurer is contracted to typically make a lump sum cash payment if the policyholder is diagnosed with one of the specific illnesses on a predetermined list as part of an insurance policy.

Mortgage life insurance is a form of insurance specifically designed to protect a repayment mortgage. If the policyholder were to die while the mortgage life insurance was in force, the policy would pay out a capital sum that will be just sufficient to repay the outstanding mortgage.

Insurance bad faith is a tort unique to the law of the United States that an insurance company commits by violating the "implied covenant of good faith and fair dealing" which automatically exists by operation of law in every insurance contract.

Australia's insurance market can be divided into roughly three components: life insurance, general insurance and health insurance. These markets are fairly distinct, with most larger insurers focusing on only one type, although in recent times several of these companies have broadened their scope into more general financial services, and have faced competition from banks and subsidiaries of foreign financial conglomerates. With services such as disability insurance, income protection and even funeral insurance, these insurance giants are stepping in to fill the gap where people may have otherwise been in need of a personal or signature loan from their financial institution.

Professional liability insurance (PLI), also called professional indemnity insurance (PII) but more commonly known as errors & omissions (E&O) in the US, is a form of liability insurance which helps protect professional advising, consulting, and service-providing individuals and companies from bearing the full cost of defending against a negligence claim made by a client in a civil lawsuit. The coverage focuses on alleged failure to perform on the part of, financial loss caused by, and error or omission in the service or product sold by the policyholder. These are causes for legal action that would not be covered by a more general liability insurance policy which addresses more direct forms of harm. Professional liability insurance may take on different forms and names depending on the profession, especially medical and legal, and is sometimes required under contract by other businesses that are the beneficiaries of the advice or service.

Captive insurance is an alternative to self-insurance in which a parent group or groups create a licensed insurance company to provide coverage for itself. The main purpose of doing so is to avoid using traditional commercial insurance companies, which have volatile pricing and may not meet the specific needs of the company. By creating their own insurance company, the parent company can reduce their costs, insure difficult risks, have direct access to reinsurance markets, and increase cash flow. When a company creates a captive they are indirectly able to evaluate the risks of subsidiaries, write policies, set premiums and ultimately either return unused funds in the form of profits, or invest them for future claim payouts. Captive insurance companies sometimes insure the risks of the group's customers. This is an alternative form of risk management that is becoming a more practical and popular means through which companies can protect themselves financially while having more control over how they are insured.

A with-profits policy (Commonwealth) or participating policy (U.S.) is an insurance contract that participates in the profits of a life insurance company. The company is often a mutual life insurance company, or had been one when it began its with-profits product line. Similar arrangements are found in other countries such as those in continental Europe.

Cyber-insurance is a specialty insurance product intended to protect businesses from Internet-based risks, and more generally from risks relating to information technology infrastructure and activities. Risks of this nature are typically excluded from traditional commercial general liability policies or at least are not specifically defined in traditional insurance products. Coverage provided by cyber-insurance policies may include first and third parties coverage against losses such as data destruction, extortion, theft, hacking, and denial of service attacks; liability coverage indemnifying companies for losses to others caused, for example, by errors and omissions, failure to safeguard data, or defamation; and other benefits including regular security-audit, post-incident public relations and investigative expenses, and criminal reward funds.

References

  1. "Legal expenses insurance: origins and development" (PDF). Archived from the original (PDF) on 2017-12-05. Retrieved 2017-12-05.
  2. Auffret, Marc. Histoire de la défense automobile et sportive.
  3. "RIAD - International Association of Legal Expenses Insurance: Statistics". riad-online.eu. Archived from the original on 2017-12-29. Retrieved 2017-12-05.
  4. "Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (Text with EEA relevance)".
  5. "Non-life insurance classes are listed in Annex II of Directive 2009/138/EC (Solvency II Directive)".
  6. "Legal Aid, Sentencing and Punishment of Offenders Act 2012". www.legislation.gov.uk. Retrieved 2017-12-05.
  7. "Consumer Perception of Legal Issues and Legal Protection Insurance in France, Germany, the Netherlands, and Ireland" (PDF).
  8. Masip, Gemma; Sabalza, Maite; Pérez-Massot, Eduard; Banakar, Raviraj; Cebrian, David; Twyman, Richard M.; Capell, Teresa; Albajes, Ramon; Christou, Paul (2013). "Paradoxical EU agricultural policies on genetically engineered crops". Trends in Plant Science . 18 (6). Cell Press: 312–324. doi:10.1016/j.tplants.2013.03.004. ISSN   1360-1385. PMID   23623240.
  9. "ROLAND Rechtsreport 2023: Weniger Deutsche vor Gericht | AssCompact – News für Assekuranz und Finanzwirtschaft". www.asscompact.de (in German). Retrieved 2024-07-14.
  10. 1 2 3 GermanPedia (2024-01-27). "Legal Insurance in Germany [Ultimate 2024 English Guide]". GermanPedia. Retrieved 2024-07-14.
  11. GermanPedia (2024-02-28). "Legal Costs In Germany - Lawyer And Court Fee In 2024". GermanPedia. Retrieved 2024-07-14.
  12. "Canadian Bar Association - DAS Canada sponsors Canadian Bar Association Access to Justice Initiative". CBA-NA. Retrieved 2016-04-12.
  13. "L'assurance juridique - Une protection contre les aléas de la vie courante". Le Barreau du Québec.
  14. Veiligheid, Ministerie van Justitie en. "Lagere drempels voor rechtzoekenden (WODC Cahier 2016-14)". www.rijksoverheid.nl (in Dutch). Retrieved 2017-12-05.
  15. "The Law and Practicalities of Before-The-Event (BTE) Insurance" (PDF).
  16. "Motor Legal Expenses Insurance (MLEI) Report on the thematic project" (PDF).
  17. "Legal expenses insurance report". Archived from the original on 2011-02-04.{{cite web}}: CS1 maint: bot: original URL status unknown (link)
  18. England and Wales Court of Appeal (Civil Division), Rogers v Merthyr Tydfil County Borough Council (2006) EWCA Civ 701, paragraph 4, delivered 23 May 2006, accessed 15 October 2022
  19. 1 2 Browne Jacobson LLP, The Liverpool ATE Premium Test Cases, Liverpool County Court, 25 May 2012, accessed 11 February 2022