By Hector Stamboulieh, Claims Legal Counsel at Legal Futures Associate ARAG
I read an interesting article, (my thanks to Paramount Legal Costs), on the case of Dance v East Kent University Hospitals NHS Foundation Trust 2022 which provides some useful points re recoverability of ATE premiums in Clinical Negligence (CN) cases, and which I will summarise.
This was a (CN) case which settled when a Part 36 offer was accepted and the Claimant then sought recovery of their ATE insurance premium.
The current, general rule has been that ATE premiums are not recoverable between the parties.
There is however an exception to this for Clinical negligence claims, which provides that the Claimant can recover the part of the premium which relates to the risk of incurring a liability to pay for expert reports relating to liability or causation. The exception is set out in the relevant Regulations, “The No 2 Regulations”.
The recoverable element in this instance was £5,266.01. There was no dispute that the amount was recoverable in principle, however, the Defendant argued that there had to be specific provision for this in the order.
The Defendant relied upon an editorial note in the White Book, regarding the Regulations, which states that “It is therefore incumbent upon the party seeking costs to request the judge to include the necessary provision when making the order. If no such provision is included in the order, the cost of the premium will not be recoverable.”
Master Leonard disagreed with the note in the White Book and held that the Regulations did not introduce a requirement that the recoverable ATE premium must be expressly provided for in the order. It was not accepted that the regulations were intended to create further judicial oversight, in addition to assessment, exclusively for recoverable ATE premiums. The regulations were only intended to establish the criteria for a premium to meet, to be recoverable.
A clear and sensible interpretation by the Master.
Defendants will no doubt continue to seek new ways to attack the recoverability of ATE premiums, whilst ARAG plc will continue to support the innocent victims of someone else’s negligence.
