Welcome ruling on ATE

A £5,680 after-the-event (ATE) insurance premium for an indemnity of £10,000 can be recovered in a clinical negligence case, the High Court has ruled.

Master Leonard in the Senior Court Cost Office held in favour of insurers Temple Legal Protection that its ATE premium for clinical negligence was neither unreasonable in amount nor disproportionate and was recoverable in full, in Nokes v Heart of England Foundation Trust (2015) SCCO Ref: CL 1404886.

The claimant took out the insurance policy regarding export reports into liability and causation for her clinical negligence claim.

ATE premiums have been irrecoverable apart from in certain clinical negligence cases since 1 April 2013, when the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force.

Master Leonard found the policy was fully compliant with the statutory requirements and the premium of £5,680 plus insurance premium tax was reasonable and proportionate.

David Pipkin, director, underwriting division at Temple, gave evidence that the ATE insurance market changed post-LASPO, and Temple developed an underwriting model that provided cover for a “basket” of cases which met certain criteria without the extra burden of assessing and setting a bespoke premium for each case.

Patrick Allen, senior partner at Hodge, Jones and Allen, says: “Without ATE insurance to cover expert reports, most clinical negligence clients would be deterred from investigating claims. A viable insurance product for this risk was therefore vital to make the new CFA regime work. The decision means that insurers such as Temple can continue to offer cover and claimants will have the comfort of knowing that insurance is available.”