Legal expenses insurance: checking for before-the-event cover at the outset (Sarwar v Alam)

In Sarwar v Alam [2001] EWCA Civ 1401 the Court of Appeal said that proper modern practice dictates that a solicitor should normally invite a client to bring to the first interview any relevant motor insurance policy, household insurance policy and any stand-alone before-the-event (BTE) insurance policy. Such policies often include legal expenses insurance that may fund the claim. Checking for BTE cover is therefore an essential first step when advising on funding, alongside other options such as a conditional fee agreement, a damages-based agreement or a private retainer. The court stressed that the enquiry should be proportionate and that the guidance is not an inflexible code. Sarwar was decided in the context of a small road traffic claim, but checking for existing BTE cover at the first interview is now standard good practice whatever the value, although whether the client must then use that cover depends on whether it is adequate for the claim. Here, asking Oluwaseun to produce his policies is the step that best reflects that practice.

Why A is wrong: Legal expenses (BTE) insurance commonly covers personal injury claims, and its availability should be checked before other arrangements are made.

Why B is wrong: Personal injury claims are excluded from civil legal aid under LASPO 2012 Sch 1 Pt 2 para 1.

Why C is wrong: This ignores other options, including conditional fee agreements and legal expenses insurance.

Why E is wrong: Concern about choice of solicitor does not remove the need to check whether BTE cover exists; the solicitor should still enquire.