One of our main concerns at the Law Society is to ensure that we continue to work to preserve the principles of access to justice.

This includes preserving our clients’ ability and freedom to choose the solicitor that they want.

The issue of freedom of choice becomes even more pressing in the context of Lord Justice Jackson’s costs review, which recommends that after the event (ATE) insurance premiums should not be recoverable and that before the event (BTE) insurance should be used more widely.

Lord Jackson recommends that ‘positive effort should be made to encourage the take-up of BTE insurance by SMEs in respect of business disputes and by householders as an add-on to household insurance policies’.

I am concerned that without careful thought and consideration, Lord Jackson’s proposal will become a double-edged sword.

While the wider availability of BTE insurance is to be welcomed, it cannot be allowed to operate in a way that reduces access to justice for those who need it.

Insurers cannot be allowed to dictate the terms, or undermine, or affect, the ability of those who need to bring a claim.

Moreover, in the absence of widely available ATE, practitioners are much more likely to be forced to take only ‘no-risk cases’, which will place an increasing burden on BTE as the prime instrument for protecting people’s right to access to justice.

And while there is an argument that Jackson’s proposals might be able to replace some areas of legal aid, it will not be able to replace many areas such as family law, where there is no ‘winner’.

Combined with the government’s legal aid proposals this is a devastating twin attack on the public’s ability to seek the justice that is their right.

At present, BTE insurance tends to be made available as a bolt-on policy to either a buildings/household contents or motoring policy.

Cover tends to be limited to initial advice and to representation in civil claims, but there is often an alarming tendency for extensive exclusions and financial caps, which can make it difficult for individuals to bring a claim should they need to.

Current legislation provides that where an individual becomes engaged in litigation, they are entitled to a free choice of lawyer.

It is our belief that insurance companies have wrongly interpreted the law as allowing them to impose restrictions for initial advice and assistance.

As things stand, most, if not all, BTE policies contain restrictions on freedom of choice of solicitor and, most noticeably, on the appointment of solicitors to a panel by legal expenses insurers, often in return for the payment of referral fees and agreements on much lower hourly rates, or on a conditional fee agreement.

I know from my own practice that the restrictions contained in the policy and the method by which funding is made available are often not immediately apparent to policyholders, either at the time they take out the policy, or when they are first engaged in bringing a claim.

From the outset, policyholders are denied a free choice of solicitor for their case.

Having then instructed a lawyer, the client is unlikely to be able to change representation even if they would have preferred a different firm.

Those clients who seek to instruct the solicitor of their choice often have a long and difficult journey to exercise their right.

Furthermore, the insurance industry uses its ability to direct clients to particular lawyers to extract referral fees from solicitors.

For a number of years, insurers have held many of the strings, which is not how a fair justice system should work.

It should always be weighted towards access to justice, the rule of law and the duty to the court.

There have been small steps taken towards positive change but these have taken a long time, with no clear outcome.

Nearly nine years ago, the Financial Ombudsman Service (FOS) stated that one of the most common complaints about legal expenses insurers (LEI) was about who chose the policyholders’ legal representative.

At the time, and in the absence of guidance from the courts, the FOS was happy for insurers to take a pragmatic approach, but did expect that insurers would agree to the appointment of policyholders’ preferred solicitors in cases that involved large personal injury claims, or were complex, such as medical negligence cases.

Despite this, in the year ended 31 March 2007, 3% of all insurance-related complaints dealt with by the FOS involved legal expenses insurance, an increase in legal expense insurance complaints, up 12.66% on the previous year.

Last year, we welcomed the decision by the Financial Services Authority (FSA) to write to insurers to state that the European Court of Justice ruling in Eschig v UNIQA C – 199/08 made it clear that any provisions of a contract that detract from, or qualify in any way, the freedom to choose a lawyer will not be compliant with the European Legal Protection Directive.

However, it is not clear that LEIs have accepted the FSA’s conclusion.

In response, the Law Society's civil justice committee investigated the problem of freedom of choice in this area.

Its members met European Commission officials and legal expenses insurers to express concerns regarding insurers’ practices, and we are taking forward our work to resolve this issue.

The Law Society still receives a number of complaints from members of the profession about the lack of freedom of choice for their clients, and our civil justice committee is committed to working with all parties to address these concerns.

The government is already threatening to deny thousands of people access to the sort of justice that is rightfully theirs.

We cannot allow the government to try and do it via the backdoor, either without scrutiny or without addressing the concerns of our members.

We will continue to consider the extent to which before the event insurance options might be able to replace the need for certain classes of case or clients.

But it is essential that clients retain sufficient freedom to instruct a lawyer of their choosing, and are not unduly restricted in their choice by the funding insurer.

Linda Lee is president of the Law Society