(Estimated reading time: 2 minute 44 seconds)

The argument of whether the cost of an After the Event (ATE) insurance premium, in a case involving a minor was reasonably incurred has now been decided thanks to HHJ Lethem and his judgment of X –v- H&M Hennes.

HHJ Lethem overturned a decision where the cost of the ATE premium was not to be deducted from the child’s damages. The previous decision found that, although the Claimant was successful in recovering £1,750.00 in damages, the ATE premium of £336 was not to be deducted; even though the 25% success fee was.

The Deputy District Judge (DDJ) was not prepared to deduct the premium on the basis of there being an unnecessarily small risk of this case running to trial, resulting in a large payment of costs. Because of this, the District Judge deemed it not reasonable to insure the claim.

This decision was appealed on 3 grounds;

1.That the DDJ was incorrect with his approach to the assessment of the insurance premium in assessing them as too high. This was impermissible following the Court of Appeals decision in West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220.

2.The DDJ erred in trying to address the reasonableness of the premium recovery from the Claimant’s damages from a solicitor and own client context. Also that it was inconsistent of the Court to disallow the premium, particularly in circumstances where there is no suggestion that the litigation friend was not acting in the best interests of the Claimant.

3.Finally, the error of discretion by the Judge, who was wrong to find the insurance premium was not reasonably incurred and reasonable in amount. The Court was drawn to the 25% success fee being allowed, meaning the DDJ had to accept there was an insurable risk. The finding that the risk was so small it was unreasonable to insure the case was, in short, incorrect.

HHJ Lethem addressed each of these 3 grounds in turn and made the following judgment “17. I thus consider that the deputy district judge failed to properly apply the operation of Rule 21.12(4) and failed to have a proper regard from the assumptions and presumptions that arise from that provision via CPR 46.9.  This was a failure to properly apply Rule 21.12 and an inherent contradiction in factual findings.  In the circumstances, I will allow the appeal under grounds two and three and I will order that the litigation friend is entitled to have the £336 deducted from the children’s damages.”

The Temple Perspective

This is good news for those who have correctly followed Rule 21.12 only to have the Court, at its own discretion, decide not to make the appropriate deductions. Temple welcomes this decision as every case presents an insurable risk. If the appropriate procedures are followed, there should be no reason why the ATE insurance premium should not be deducted from the Claimant’s damages.

Importantly, this decision continues to give minor Claimants access to justice; but now there is a degree of certainty that the ATE premium will be deducted accordingly – by making their claim an insurable risk and therefore protecting them from the cost of their own disbursements.

If you have any questions or would like to discuss how Temple can benefit both you and your client, please contact our Senior Underwriter, Peter Morgan on 01483 514 800 or by email at peter.morgan@temple-legal.co.uk.

The post ATE Insurance Premium Deductions: A Minor Issue? appeared first on Temple.

The 2022 SCIL conference: a welcome and energetic return

Temple Legal Protection were delighted to be exhibiting at the SCIL Conference which was held in Birmingham on 19th May 2022. This was the first SCIL event held since the pandemic and was a welcome return to see old friends as well as making new ones.

A refreshing opening talk by keynote speaker Dr Phil Hammond set the tone for the conference. His talk was met positively by delegates and exhibitors; ensuring that an energetic atmosphere carried on through the whole event.

Delegates were also engaged in conversation with Sir Bob Neill MP, Chair of the Justice Select Committee. Sir Bob did appear to understand the position of SCIL in terms of fixed recoverable costs and the threat of complete reform. He left the conference with lots to ponder; as did we all. You may well want to read Sir Bob’s recent article in the Law Gazette with his ‘doubts about fixed costs in clin neg claims’.

Thank you to everyone who came over to our stand for a catch up and for those that entered our prize draw to win ‘The Hundred’ cricket final tickets, along with a team shirt of their choice. The winner of the tickets was Chloe Partridge of Lime Solicitors, who we hope enjoys her day.

If you would like to find out more about ATE insurance and disbursement funding for your firm and clinical negligence clients please call Lisa Fricker on 01483 514872 or email lisa.fricker@temple-legal.co.uk.

The APIL Advanced Brain and Spinal Cord Injury Conference 2022

Following our sponsorship and exhibition stand at the APIL Clinical Negligence conference in September 2021 we were pleased to return to The Celtic Manor Resort from 18th-20th May.

We spent three days catching up with existing clients and contacts and having the pleasure of meeting new delegates. We were also able to swap thoughts with our fellow exhibitors.

The conference saw an impressive selection of talks from a diverse panel of experts which included updates on liability, pre-existing conditions and future care. It was noticeable how much good feedback there was from the delegates about these sessions.

In addition, there were two packed evenings of entertainment for attendees to network and let their hair down, including new additions such as street food stands rather than a traditional dinner. There was also a silent disco, a DJ and a casino. Peter Morgan made his vouchers go much farther than Andy Lyalle.

There was a lot to take away from the conference for those looking to increase their knowledge in a complex area of law as well as important topical issues discussed.
Exhibitors were also addressed directly in the exhibition hall on the need for APIL, its members and service providers such as Temple to engage with each other. This is with the aim of trying to create a unified, positive approach to proposals that may not be in the interests of an injured party.

We would like to thank those that attended our stand to have a chat and enter our competition for a pair of Google Ear Buds. We are pleased to announce the winner as Matthew Evans of CFG Law.

If you would like to find out more about ATE insurance and disbursement funding for your firm and clinical negligence clients please call Peter Morgan on 01483 514800 or email peter.morgan@temple-legal.co.uk.

The post Out and About – Seeing Eye-to Eye? appeared first on Temple.

(Estimated reading time: 1 minute 20 seconds)

Alternative dispute resolution: it’s fast, it’s efficient and seemingly, it’s here to stay.

When the Civil Justice Council (CJC) concluded that parties could lawfully be compelled to participate in ADR in June 2021, most lawyers were sceptical. Below we share our views on this.

What the CJC were saying was directly contrary to the well-established principle in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civl 576 which says that ‘it would be wrong for the court to compel’ the parties to engage in ADR (per Lord Justice Dyson at [10]).

But that decision was pre-pandemic and almost 20 years ago. The uptake and interest in ADR has increased tenfold since then, with a 16% increase in arbitration caseloads from 2019-2020 alone. A movement that seems to be gathering momentum.

It seems that ADR is here to stay and could even become compulsory for civil claims in the near future. Whether this is due to the pandemic effect, the realisation of increased technology in dispute resolution, or, as Sir Geoffrey Vos MR puts it, the fact that ‘for small claims, the parties often want a swift cost-free resolution’, it seems lawyers will need to be ready to engage in ADR more readily than ever before.

Alternative dispute resolution still carries an adverse costs risk for your clients. Temple Legal Protection can offer full adverse costs cover for ADR proceedings as well as for traditional litigation, providing the same level of protection no matter which method of dispute resolution your client is engaged in.

If you would like more information on ATE for commercial ADR proceedings, please email matthew.pascall@temple-legal.co.uk or call him on 01483 514428

The post Mediation, Arbitration, Motivation: The Changing Face of Civil Dispute Resolution appeared first on Temple.

(Estimated reading time: 50 seconds)

Andy Lyalle and Matthew Pascall were lucky enough to attend the first post-COVID in-person PNLA conference at Billesley Manor, near Stratford, earlier this month. Temple were proud sponsors of this unique event that brings together leaders in the field of professional negligence for a day-long meeting focusing on the latest developments in professional negligence law and procedure.

The PNLA were able to secure the attendance of the Hon. Mr Justice David Waksman who delivered the Keynote address. The Conference included in-depth contributions from a number of leading silks including Patrick Lawrence QC (as entertaining and informative as ever) as well as Nicholas Davidson QC and Michael Pooles QC.

Matthew Pascall introduced the audience to Temple’s new Concierge pathway to ATE and reminded PNLA members that they had exclusive access to ATE premiums at heavily discounted prices.

If you would like more information on ATE insurance and disbursement funding products for professional negligence cases, or you have any other legal expenses insurance query, please email matthew.pascall@temple-legal.co.uk or call him on 01483 514428.

The post Professional Negligence: ‘The Secrets of Success’ PNLA Conference appeared first on Temple.

(Estimated reading time: 3 minutes 0 seconds)

In a restaurant, the meal you order depends on how hungry you are, the time of day and your budget – with the menu laid out accordingly. Here at Temple, we think getting After the Event (ATE) insurance policy to cover your client’s adverse costs and their own disbursements should be similarly easy – and have come up with a simple and flexible process. This means, as Burger King used to say, you can ‘have it your way’.  Find out more below.

When a solicitor applies for ATE insurance for their client, the cover they get and its cost depend on several factors – the type of case, whether the premium is recoverable, the level of indemnity required, stage that the case has reached and if security for costs is required.

We have created three routes to obtaining ATE insurance cover and it will often be possible for a law firm to move from one process to another or to have more than one.  These three new pathways to commercial ATE insurance cover are Solo, Concierge and Espresso.

‘Solo’ starts with a solicitor contacting us by phone or e-mail and we will let them know if we think that prima facie, this is a case that we are interested in and will look at with a view to offering terms.  We will also give an indicative, non-binding premium estimate to discuss with their client.

If the client wishes to proceed, then the solicitor completes an individual proposal form and sends it to us to be reviewed by an underwriter.  If the merits of the case are as required by the underwriter and the insurance premium likely to be proportionate in relation to the damages sought an offer of insurance terms will be made and the solicitor can refer to their client.

At the opposite end is ‘Espresso’.  A delegated scheme can be for a whole non-injury dispute resolution team or for a particular segment within that team e.g. defamation, professional negligence or insolvency.  Except for a few triggers, the solicitor will have authority to decide on the merits of the case and then, using the Temple Online Policy System, issue the insurance policy themselves.  Quick and strong, it gets the case started and moving.

There is also a middle ground – ‘Concierge’. We agree a short, on-line, questionnaire with the firm for their exclusive use. As the process in on-line and focussed on the particular cases being handled by the firm, the underwriter instantly gets the right information to enable the case to be assessed quickly  and the case handler at the firm doesn’t have to repeat the same generic information every time they want cover, saving valuable time and cost.

It may be that a ‘Solo’ law firm will start to generate a greater volume of cases or a particular department within the firm may do the same.  They may then wish to move onto the ‘Concierge’ or ‘Espresso’ process for getting their cases insured.  Also, a firm using ‘Concierge’ or ‘Espresso’ may not hit projected volume and wish to move to a ‘Solo’ offering.

To sum up, the process or pathway to getting your cases insured can be as important as the ATE insurance itself that you ultimately secure for your client.

We aim to work with our existing and prospective solicitor partners and put together the best process possible for getting your cases insured.  As always, we would like to hear from you so that we can discuss what you do and agree the best way to get your cases insured.  If you would like to discuss further, please email andy.lyalle@temple-legal.co.uk or call me on 07936 903767

The post Good Things Come in Threes: After the Event Insurance you can ‘Have it Your Way’ appeared first on Temple.

(Estimated reading time: 4 minutes 27 seconds)

Shakespeare would probably have enjoyed the verbal jousting on social media and Hamlet’s ponderings about human existence in general could also have worked online. But with Twitter in the news again as Elon Musk considers taking over the company and into private ownership, we ask whether this is all ‘much ado about nothing’ or if libel law needs to restrain the worst excesses of online debate.

It’s a platform some say is the refuge of (to coin a phrase by a former US President) “nutjobs” and the delusional. As a platform to express opinions and promote debate it has proved highly popular. Views can be controversial and language employed to express them offensive and abusive. Just like email, one press of a small button and the missive is dispatched, disseminated to devoted “followers” and re-tweeted at will.

However, it’s not a free-for-all. Twitter does have its own rules regarding content and what can or cannot be posted. External regulation of such content is not in place but politicians from both sides of the Atlantic are pushing for it to be. Regardless of whether such regulation is enacted, existing libel laws apply and act as an actual if not subliminal check on what “Twitterers” and “Tweeters” post.

Thank heavens insults do not generally amount to slander and fact must be distinguished from opinion. A person can call me a tw*t or even a twit but such a description, although abusive, is not verifiable as a fact (says he hopefully); it’s an opinion probably said or posted in the heat of the moment. Opinions can of course be highly offensive, especially if they’re of a personal nature.

To be defamatory, a statement must be untrue and damage the reputation to whom it is addressed or refers. Mr. Musk is of course no stranger to Twitter and the offence it can cause.

• In a widely publicised US libel action in 2018, he was sued by a British man for defamation whom he (Mr. Musk) called “pedo guy” and whom others regarded as a hero in helping rescue a young Thai football team trapped in flooded caves.
• The US jury however had a different take on it and, to the surprise of many in the UK, found the remark “Pedo guy” wasn’t defamatory but just an insult said in anger and not meant nor intended to be a statement of fact. The remark of course nevertheless was highly unpleasant and offensive; to Mr. Musk’s credit, he did apologise.

Opinions can be offensive but they can also form the basis of the statutory defence in libel proceedings of “honest opinion”.

What constitutes a statement of opinion from being a statement of fact and vice versa was the subject of detailed legal analysis in a case Temple insured and was the subject of an appeal heard in the Court of Appeal ( Millett v Corbyn [2021] EWCA Civ 567). This was an appeal against a trial of preliminary issues where it was held that the words complained of were statements of fact and not opinion.

The case related to the Andrew Marr interview of Jeremy Corbyn and what Mr. Corbyn had said about “Zionists… who don’t understand English irony” and their behavior at meetings he had attended to discuss the Palestinian situation. He had accused them of being both very abusive and disruptive. Mr. Corbyn said these were statements of opinion and not fact.

In the appeal Warby LJ succinctly summarized the dichotomy faced:

“16. …the defence of honest opinion as a bulwark of free speech. It must not be whittled away by artificially treating comments as if they were statements of fact. On the other hand, if a person could use this defence as a means of escaping liability for a false defamatory allegation of fact, the law would fail to give due protection to reputation.”

The claimant was successful in defending Mr. Corbyn’s appeal and the trial of the main action is to be heard in October this year.

Another case that Temple insured (Rachel Riley –v- Laura Murray [2021] EWHC 3437 (QB)), demonstrates the trouble people can get themselves into when “twittering.” It emanated from a tweet Rachel Riley posted relating to Mr. Corbyn being pelted with eggs whilst visiting Finsbury Mosque Park in 2019.

To complicate matters, Ms Riley actually posted a screenshot of a tweet issued by a Guardian columnist and well-known Jeremy Corbyn supporter relating to a similar attack on the former British National Party leader Nick Griffin.

Needless to say, a Twitter spat ensued with Ms Murray, a former aide to Jeremy Corby, posting tweets which Ms Riley found defamatory and sued on. Nicklin J found in favour of Ms Riley and awarded her £10,000 in damages.

I should say that permission to appeal this decision was granted this month on grounds of truth, honest opinion and publication on a matter of public interest and we await with interest the outcome of the appeal.

Temple has insured publication and privacy proceedings for many years and continues to insure large numbers of claimants seeking damages relating to unlawful phone-hacking. Likewise, we have insured and continue to insure a large number of claims in defamation, often the subject of reporting in the legal and national press.

If you’d like to discuss a case or more information on our ATE insurance and disbursement funding products for media and communications litigation, please email matthew.pascall@temple-legal.co.uk or call him on 01483 514428.

The post ‘To Tweet or Not to Tweet’ – Defamation developments appeared first on Temple.

By Sam Knight, Underwriter

(Estimated reading time: 1 minute 26 seconds)

On 10th November 2021 the Supreme Court reversed the decision of the Court of Appeal in the Lloyd v Google case, clamping down on representative privacy actions in the age of the internet.

Previously, the Claimants had been successful in a £3bn representative action for loss of control of data stemming from Google allegedly tracking Apple iPhone users’ internet activity without permission. The Supreme Court found that no compensation was due to the Claimants as they had suffered no ‘damage’, even though their rights under the Data Protection Act 1998 had been contravened.

It was held that the words of the statute at Section 13 ‘cannot reasonably be interpreted as giving an individual a right to compensation without proof of material damage or distress’ (per Lord Leggatt JSC at [115]).

In short, the fact that Google allegedly gathered the Claimants’ data improperly was not enough, what had to be shown was that the Claimants had suffered material damage or distress as a result of the Data Protection Act 1998 breaches.

What does this mean for the future of representative privacy actions in the 21st Century? More emphasis is going to be placed on showing what damage the Claimant actually suffered by the contravention of their rights; making Data Protection Act 1998 claims more like traditional torts than a standalone cause of action in privacy.

In the changing climate of privacy claims, an ATE policy could be the difference between clients asserting their legal rights or simply abandoning their claims. Temple Legal Protection are privacy experts, providing specialist policies for privacy cases backed-up by fully deferred and contingent premium structures.

To find out more about ATE insurance for privacy cases, please contact our commercial underwriting team by phone on 01483 577877 or by email to matthew.pascall@temple-legal.co.uk

The post Quite Interesting: Lloyd v Google LLC [2021] UKSC 50 appeared first on Temple.

(Estimated reading time: 3 minutes 52 seconds)

The allegation is that Strategic Lawsuits Against Public Participation (SLAPP) are used by the rich and powerful to protect their reputation and to gag those who would expose their unsavoury path to enormous wealth to public scrutiny and ridicule. We take a closer look.

It is often the case that investigative journalists and whistleblowers find themselves on the wrong side of such actions. Politician David Davis referred to such lawsuits as “lawfare”. SLAPPs are used as a weapon whose destructive power lies in the substantial legal costs those on the receiving end have to incur and often personally cannot afford.

Such actions are by their nature intimidating and used to silence critics and stifle public debate. The claim itself may be spurious and of no legal merit but you cannot choose when you are selected to be a defendant, especially if a Russian oligarch with unlimited funds has you in his crosshairs.

These types of claim are currently very much in the spotlight in the context of Vladimir Putin and the sanctions imposed on him and his generally perceived coterie of billionaire kleptocrats.

Certain MPs have recently stood up in Parliament and used their parliamentary privilege to vent their outrage against those in the legal profession who act for these Russian oligarchs. Certain law firms and indeed individual lawyers were named and shamed, questioning their morality and terming them as “amoral”.

Is such criticism justified?

Ironically, if such MPs had repeated what they said outside the confines of parliament, they might well have found themselves on the receiving end of a claim in defamation; exactly the type of claim they were railing against as being used by the rich and corrupt to gag their critics.

What they said might chime with the current sentiment of public opinion and the prosecution of an unjust and unwarranted war waged on a free and democratic Ukraine by a dictatorial autocratic Russian aggressor, but on closer scrutiny, there would appear to emerge a clear and fundamental paradox.

Great Britain enjoys the freedoms and democratic rights of a sophisticated and advanced western nation. We have free elections, freedom of the press, freedom of assembly, freedom to demonstrate, freedom to protest and freedom to litigate. These freedoms apply to all its citizens, regardless of where they might have come from, their creed or political allegiances.

The British legal system and its judiciary is the envy of the world and rightly so. It is no coincidence that international litigants choose the English courts in which to litigate. The rules of court are highly sophisticated and cater for the swift despatch of vexatious or unmeritorious claims.

A litigant has the right to choose whomsoever he wishes to represent him.

The law is and should be atheistic as to a litigant’s character or past when it comes to assessing the merits or otherwise of a claim. It is up to the litigant, through his lawyers, to prove his case both factually and legally. Thus to label a lawyer who chooses to act for an individual, no matter how unpalatable that individual might be, as “amoral” wholly misses the point and is misguided. An unsavoury litigant can still have a valid cause of action just as a “savoury” one can.

Criminal lawyers routinely act for “unsavoury” clients but are not termed “amoral”. It is the job of the prosecution to prove their case and not the defendant to prove their innocence.

If an investigative journalist makes an unfounded allegation, then he should rightly run the risk of being sued.

If the court of public opinion is permitted to condemn a man as being a Russian oligarch who happens to be Russian and rich and who may or may not have links to Vladimir Putin as being outside the confines of those able to seek access to justice, then this would mirror exactly the kind of behaviour that is an anathema to all advanced and liberally-minded democracies.

Lawyers should be free to act for whom they wish. Such decision is not taken in a vacuum and there are laws and regulations restricting a lawyer’s ability to act, such as those relating to money laundering. But no rules exist that prohibit a lawyer from acting for a person based on the Press’s opinion as to the category that person is perceived to belong to.

Surely this way leads to the same type of discrimination and abuse of which the likes of MPs Mr Seely and Ben Bradshaw complain? That really would be a slap in the face – for justice.

If you have any further questions about this article or would like to find out about litigation/ATE insurance for your clients’ commercial disputes, please call Nicholas Ellor on 01483 514815 or email nicholas.ellor@temple-legal.co.uk

The post A “SLAPP” in the Face – but is There a Fundamental Paradox? appeared first on Temple.

(Estimated reading time: 5 minutes 47 seconds)

We have seen a lull in challenges to our ATE recoverable premiums, post LASPO, especially since the decision in West v Demouilpied, but now and again an interesting one occurs, including pre-LASPO challenges.

A recent challenge saw a law firm client with an asbestos-related illness who had signed up to a CFA/ATE pre April 2013. The final order for this case left the client with an opportunity to bring a further action if he went on to develop a worsening of his existing pleural effusions. He received appropriate damages for the illness suffered at the material time. Post April 2013 the client sadly developed asbestos-related lung cancer and passed away. The Estate brought the action on his behalf and the case went on to settle recently although additional liabilities are currently disputed as below.

The Defendant’s argument was that, in the points of dispute relating to additional liabilities, that both the success fee and ATE were disproportionate and denied the claimant was entitled to recover any additional liabilities from the paying parties.

The relevant law

CPR r44.17 states that QOCS does not apply where the Claimant has entered into a pre-commencement funding arrangement (I.e. prior to the commencement of the QOCS rules), whilst r48.2 states that –

“(1) A pre-commencement funding arrangement is –

 a) in relation to proceedings other than insolvency-related proceedings,

publication and privacy proceedings or a mesothelioma claim –

 i) a funding arrangement as defined by rule 43.2(1)(k)(i) where –

 (aa) the agreement was entered into before 1st April 2013 specifically for the purposes of the provision to the person by whom the success fee is payable of advocacy or litigation services in relation to the matter that is the subject of the proceedings in which the costs order is to be made; or

 (bb) the agreement was entered into before 1st April 2013 and advocacy or litigation services were provided to that person under the agreement in connection with that matter before 1st April 2013;

 ii) a funding arrangement as defined by rule 43.2(1)(k)(ii) where the party seeking to recover the insurance premium took out the insurance policy in relation to the proceedings before 1st April 2013.”

In this case these funding arrangements applied to the deceased and not to the Claimant – whether she is acting in her capacity as an Administratrix of his Estate, or otherwise.

The funding arrangement between the claimant and her solicitors must post date 1 April 2013. This is because by that point additional liabilities are no longer recoverable in disease claims, except those for a mesothelioma claim, which is not the subject of this case.

The claimant is required to prove an entitlement to the additional liabilities and to satisfy the court that the retainer did not terminate on the deceased’s death.

Reference is made to the reply to point 1 (see next paragraph) as the Claimant’s solicitor asserted that QOCS does not apply in circumstances where the original Claimant dies and the estate or personal representative enters into another CFA post-LASPO 2012, from April 2013.

Point 1; The Defendants request disclosure of the Claimant’s CFA.  The original CFA between the Claimant’s solicitors and the Deceased very likely contained a ‘death clause’ which automatically terminated the agreement upon his death.  The Claimant is put to strict proof that a valid retainer was in force throughout the life of the claim and that there is an entitlement to costs.

The Claimant’s solicitor referred to JUNE CATALANO v ESPLEY-TYAS DEVELOPMENT GROUP LTD [2017] EWCA Civ 1132 in which it was held that in any case in which litigation services had been provided under a conditional fee agreement made before 1 April 2013, success fees could continue to be recovered as costs and qualified one-way costs shifting would not apply – even if the CFA was terminated and a second CFA was made.

This was important, as the Claimant sought to enter into a new CFA on 15 July 2013 which was said to have replaced a pre-April 2013 CFA, then duly discontinued the case shortly before trial – seeking to rely on the QOCS regime.

Catalano (ibid) stated that the concept of a pre-1 April 2013 funding arrangement under CPR 48.2(1)(a) was remarkably wide. It included not only an agreement where services had been provided before 1 April 2013, but also an agreement made before 1 April 2013 for the provision of such services in the future. It was clear that the employee’s solicitors had provided services before 1 April 2013, for which a charge of £5375 had been included in their costs budget.

Thus, unless the employee/their Counsel were right to read the word “un-terminated” into CPR 48.2(1)(a)(i), there was undoubtedly a pre-commencement funding arrangement within CPR r.48.2(1). Not only did the employee/their Counsel seek to read a word into the rules which was not there, but such a construction would lead to a situation where a claimant could have the best of both worlds.

The correct construction of CPR 48.2(1)(a)(i) was said to give the words “funding arrangement” their natural meaning and apply them to any pre-1 April 2013 agreement, whether terminated or not.

The rule defining a pre-commencement funding arrangement was mirrored in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.44(4), which prohibited the recovery of a success fee as costs, s.44(6) preserved the position for those CFAs entered into before it came into force on 1 April 2013 where success fees could continue to be recovered as costs and QOCS would not apply, even if the CFA was terminated and a second CFA was made.

The Claimant’s reinstated claim related to a diagnosis of mesothelioma, but Article 6 of the CFA Order 2013 excludes mesothelioma claims from the provisions of sections 44 and 46 of LASPO 2012.

The ATE policy was correctly endorsed in 2018 to show that the new claimant was the insured on behalf of the deceased

The Temple perspective

 The paying parties’ arguments are misconceived and their failure to raise any meaningful arguments or evidence in respect of the quantum of the premium sum sought is rather damning to their case that the amount claimed is “disproportionate”.

Reference is made to the decisions in West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220 and Nokes v Heart of England Foundation NHS Trust [2015] EWHC B6 (Costs) in support of this assertion, as costs judges and district judges do not possess the necessary expertise to determine the reasonableness of a premium and ideally expert evidence is required, as in the case of Kris Motor Spares Limited v Fox Williams LLP [2010] EWHC 1008 (QB).

What happens next?

 The argument in relation to additional liabilities is ongoing and we shall see whether the costs judge will accept the receiving party’s argument that the Estate is entitled to continue with the original ATE and CFA as envisaged by the original pre April 2013 order allowing the Claimant to do so rather than a full and final settlement.

If you would like Temple ATE insurance for personal injury cases, please call David Stoker on 01483 514808 or email david.stoker@temple-legal.co.uk to discuss your requirements.

The post ATE insurance in action case study – a pre-LASPO asbestos-related claim appeared first on Temple.

(Estimated reading time: 5 minutes 50 seconds)

I understand that there is an argument for reform. However, I believe it is not the system and its associated costs that needs to change; the root of the problem is the lack of patient safety learning (learning from mistakes) across the whole of the NHS. It is plain to see that if this improved, the number of clinical negligence cases brought forward will inevitably drop.

Currently, the legal costs for claimants (injured patients) will always be higher than those of the defendant because the claimant has to discharge the burden of proof. However, the figures presented by NHS Resolution (NHSR) are skewed. This is not least because –

• The comparison does not include the cost of the work carried out by lawyers employed by individual NHS Trusts, or the cost of the work carried out by NHSR.
• Secondly, the claimants’ costs figure includes Value Added Tax, whereas the figure for Defendants costs does not.
• In addition, the figure for claimant costs includes court fees. In many cases the fee for commencing court proceedings is a staggering £10,000. By contrast, the figures for defendants’ costs do not include any court fees.

Delay and denial
The cost of clinical negligence claims is actually dropping. Indeed, they have reduced by over £100m from 2019/2020. As an insurer, we are able to see the reasons why costs increase. Ultimately this is because of certain behaviours by the NHSR; ‘Delay, denial, delay’ tactics are currently in operation. This reveals itself because 81% of claimant cases succeeded (in 2019/2020) where proceedings had been issued; a figure that is actually up from the previous years.

I am pleased to see that Maria Caulfield has admitted her mistake on this. She twice advised the Health and Social Care Select Committee that the current main driver of clinical negligence costs is rising legal costs.

Admitted? Yes. Corrected? No. Ms Caulfield is also wrong to put the emphasis upon increasing damages payments as the primary driver. A quick review of the last NHSR annual report shows damages payments actually went down overall, not up.

Here at Temple, we are fully on-board with keeping costs down. An example of our commitment to this is that we actively encourage mediation by building incentives into our insurance cover as standard. This has helped to build constructive case dialogue to keep the duration of cases down; and with that, costs – as long as there is engagement from the defendants.

Will Fixed Recoverable Costs solve the problem?
From a financial perspective it will push the problem elsewhere – more on that in a minute. But for claimants and their solicitors I believe that if the Fixed Recoverable Cost (FRC) proposals are implemented, then many specialist clinical negligence firms will be forced to exit this area of law. This will reduce access to justice – but increase the likelihood of events such as the recent Shrewsbury and Telford Hospital NHS Trust maternity scandal.

What will happen to after-the-event insurance (ATEI) premiums?
The consultation is silent on this. These proposals effectively undermine the operation of QOCS, which was introduced by the Government in the Legal Aid, Sentencing Punishment of Offenders Act 2012. Where is the logic in that? The proposals and the possible costs sanctions require claimants to maintain ATEI. And there has been no indication that any research has been carried out to ascertain whether ATEI providers will have to increase their premiums to reflect possible additional risk.

Correct the source of the problem, not the system.

This must be the starting point. Disrupting the system too much will have an adverse effect on already injured claimants. ATEI has helped tens of thousands of individuals get access to justice. Conversely, where their case has not been successful, the cover has enabled them to pay back any costs incurred in obtaining medical evidence.

Non-fault systems – a non-starter

Moving on, a rather timely statement on this was from the committee of MPs looking at reforms to the system for claiming compensation against the NHS when patients suffer avoidable harm.

I reiterate again, the costs of implementation will be huge. Comparisons with other no-fault models, such as that in Sweden, fail to take into consideration the considerable difference in spending on social care and benefits. To introduce such a model in the UK would not only deprive vulnerable patients of full and fair compensation, but then leave them in the hands of a social care and benefits system ill-equipped financially and logistically to look after them. It would only add to the injustice.

Some say no-fault systems would be positive because they take the focus away from the actions of doctors and other medics, reducing stress for all, resulting in less defensive behaviour. But if doctors et al cannot be held accountable for negligence, lessons simply will not be learned and failures will be repeated.

There would inevitably be an increase in the number of claims if the need to prove negligence is removed. Compensation payments would also need to be much lower to make the system affordable. This means that patients seriously injured as a result of negligence will not receive full compensation. Full compensation that is needed for people to try and live as normal a life as they possibly can.

 Prudent gatekeepers – ATE insurers and specialist clinical negligence law firms

A key role for us is to risk assess claims so that only matters with merit are pursued. Without this, the courts – and the NHSR – will become flooded with matters, many will be without merit, causing an unnecessary burden on the legal system.

Without a properly trained lawyer on their side, families and patients will end up having to rely on what the NHS tells them. If specialist lawyers are left out of any new system that is introduced, then from the Government’s perspective the whole thing becomes easier and cheaper to manage, but it would come at the expense of access to justice and patient safety.

Baroness Cumberlege’s recent report “First Do No Harm” – shows clearly what can happen when people are not listened to. Furthermore, the Morecambe Bay Investigation Report revealed repeated failures by the Trust to improve the care received and address historic issues, leading to an increase in deaths and stillbirths at the hospital.

Where have we got to now?

The heading to this article asks, ‘Will they never learn?’ Maybe lessons have been learned by the NHS, but the risks patients still face remain unacceptably high and highlights the importance of people being able to access specialist lawyers to act as their voice when things go wrong. And ATE insurance has helped many thousands of claimants in their journey for justice.

What next?

There remain challenges for each side. As the findings of recent committee reports have been published, claimant lawyer representative bodies have been responsible in their views and actions, but I’d like to hear everyone’s thoughts on these issues. To facilitate this, Temple is continuing to host events with special guests/speakers in which we can all have our say on developments. To register your interest or share your thoughts please email me at matthew.best@temple-legal.co.uk or call 01483 577877.

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