ATE Flashcards
Funding Options in Clin Neg
*
Funding Options in Clin Neg
* Conditional fee agreement (CFA) - The rules on CFAs in clinical negligence claims are, with one exception, the same as those which apply more broadly in personal injury claims. The exception is the recoverability of one, limited class of after the event (ATE) premium from an unsuccessful defendant. In post 1 April 2013 CFAs, an ATE premium to cover the cost of expert reports on liability or causation in clinical negligence cases is generally recoverable.
* Legal aid/public funding
* Damages-based agreement (DBA) - As with CFAs, above, the rules on DBAs in clinical negligence claims are the same as those which apply more broadly to personal injury claims. The exception is, as detailed above) the recoverability of an ATE premium to cover the cost of expert reports on liability or causation.
* Outside these criteria, “exceptional case” funding may be available under section 10(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). Decisions are made by the Legal Aid Authority (LAA), applying the Lord Chancellor’s Exceptional Funding Guidance.
ATE Recoverability
- The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) renders that …..
- Section 46(1) of LASPO 2012: Introduced ……
- Section 58C(1) of the Courts and Legal Services Act 1990: A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include ……
- Section 58C(2) of the CLSA 1990: The Lord Chancellor may …..
- RCIPCNP - Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No 2) Regulations 2013: Insurance premiums are recoverable where .
ATE Recoverability
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) renders that ATE premiums are no longer recoverable from the paying party.
Section 46(1) of the Legal Aid Sentencing and Punishment of Offenders Act 2012: Introduced a new section 58C of the Courts and Legal Services Act 1990 which prevents recovery of any premium for an after the event insurance policy.
Section 58C(1) of the Courts and Legal Services Act 1990: A costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless permitted under subsection section 58C(2) of the Courts and Legal Services Act 1990.
Section 58C(2) of the Courts and Legal Services Act 1990: The Lord Chancellor may make regulations in clinical negligence cases permitting for the recovery of ATE premiums in relations to medical experts reports.
Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No 2) Regulations 2013: Insurance premiums are recoverable where the insurance is against the risk of incurring experts fees re liability and causation in clinical negligence proceedings, the part of the policy recoverable relates to the experts reports, and the damages claimed are valued at £1000.00 or more.
ATE Recoverability & Proportionality
Emily Noakes v Heart of England Foundation NHS Trust [2015] - difficult to Identify….
Callery v Gray (No 2) [2002] - Costs judges do not have the
Rogers v Merthyr Tydfil [2007] - Followed the decision in Callery v Gray.
Peterborough & Stamford Hospital NHS Trust v McMenemy [2017] - Confirmed that Callery v Gray and Rogers v Merthyr Tydfil were …
Emily Nokes v Heart of England Foundation NHS Trust [2015] EWHC B6 (Costs) - confirmed the court would be willing to conclude that
Peterborough & Stamford Hospital NHS Trust v McMenemy [2017] - ATE premium taken out after 1 April 2013, Court of Appeal held that …….
The CPR is engaged when assessing recoverability of ATE premiums and they are subject to the scrutiny of the Court.
The Court require expert evidence if a premium is to be challenged. Callery remains good law.
Recoverability & Proportionality
Emily Noakes v Heart of England Foundation NHS Trust [2015] - Identifying which part of the premium relates to experts’ reports may be difficult. In this case the defendant argued that the premium was not recoverable because there were two separate parts to the premium and it was argued the policy did not comply with the new regulations.
Callery v Gray (No 2) [2002] - Costs judges do not have the expertise to second guess the insurance market, still less to deconstruct a policy that is offered as a package into its constituent parts. This was a Supreme Court decision.
Rogers v Merthyr Tydfil [2007] - Followed the decision in Callery v Gray.
Peterborough & Stamford Hospital NHS Trust v McMenemy [2017] - Confirmed that Callery v Gray and Rogers v Merthyr Tydfil were still good law.
Emily Nokes v Heart of England Foundation NHS Trust [2015] EWHC B6 (Costs) - Although found neither unreasonable nor disproportionate in this particular case, confirmed the court would be willing to conclude that an ATE premium is disproportionate in the correct circumstances.
Master Leonard:
“It does not follow that a Judge would never, unassisted by expert evidence, be in a position to conclude that an ATE premium is unreasonable or disproportionate….matters have moved on to some extent since Rogers.”
Peterborough & Stamford Hospital NHS Trust v McMenemy [2017] - ATE premium taken out after 1 April 2013, Court of Appeal held that the new proportionality test applies to post-LASPO clinical negligence ATE premiums.
The CPR is engaged when assessing recoverability of ATE premiums and they are subject to the scrutiny of the Court. The Court require expert evidence if a premium is to be challenged. Callery remains good law.
Conjoined Appeals: West v Stockport NHS Foundation Trust and Demouilpied v Stockport NHS Foundation Trust [2019]
RECOVERY
The Court of Appeal stressed that,
PROPORTIONALITY
The Court stated that challenges to block-rated ATE premiums should only happen if
Conjoined Appeals: West v Stockport NHS Foundation Trust and Demouilpied v Stockport NHS Foundation Trust [2019]
RECOVERY
The Court of Appeal stressed that, access to justice must be the starting point for any debate about the recoverability of ATE premiums.
Disputes about the reasonableness and recoverability of the ATE insurance premium were not to be decided on the usual case-by-case basis, but settled at a macro level by reference to the general run of cases and the macro-economics of the ATE insurance market
PROPORTIONALITY
The Court stated that challenges to block-rated ATE premiums should only happen if the assessing judge considered that a genuine point of substance, usually requiring expert evidence, had been raised. The Court further held that where a block-rated ATE premium in a clinical negligence case had been assessed as reasonable, it could not reduced by any further assessment of proportionality.
Challenging ATE - 3 grounds
Not in fact all Premium
Unreasonably High
Formula
Proporitonality
Court has discretion but emphasis on proportionality due to assessment on standard basis (CPR 44.3(2)). Court allows costs proportionate to issues in case - finds in favour of paying party if in doubt
- S.46 LASPO 2012 - no and intro’d new S.58c(2) (exception e.g. MESO case)
- S.58c(2) - Exception - expert reports in CN
- RoCIPICNP No.2 Regs 2013 - Framework - liab/causation and damages valued >£1k
- Challening ATEs - 3 grounds
- Proportionality - Court has discretion but emphasis on prop due to SB - allows costs prop to issues in case. SB finds in favour PP.
- Indemnity basis - any doubt in favour RP
- CPR 44.3(2) - reasb but not prop - may reduce/disallow
- CPR44.3(5) - proport - NEW TEST - must bear reasb relatiohship to varius factors - sums in issue, complexity of lit
