Comparator Evidence in ATE Disputes

Andy Moroz, Senior Costs Consultant

Andy Moroz, Senior Costs Consultant

Comparator Evidence in ATE Disputes

Post-LASPO, the market for clinical negligence claims has expanded at a dramatic rate, partially as a result of existing specialists changing strategy and in part as a result of new players entering the market in view of the invidious effects of LASPO in limiting access to justice in other areas of law. According to statistics published by the NHSLA, around 40% of all clinical negligence claims brought against it fail (the definition given is “resolve without payment of damages”). Given such a high failure rate, it would seem sensible to obtain ATE insurance in the majority, if not all, clinical negligence matters, with part of the premium remaining recoverable from an unsuccessful Defendant in view of the catchily titled The Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No 2) Regulations 2013.

Now, the only part of these premiums which is recoverable inter partes is that which relates to the risks in respect of the cost of obtaining expert reports as to liability and causation. When it comes to settling costs after damages have been recovered Defendants hate paying for this. The points of dispute and accompanying Part 18 requests seeking commercially sensitive actuarial calculations are very often lengthier than all other points of dispute combined and are regularly accompanied by comparator “evidence”.

We say “evidence” in inverted commas because what we are sent is not evidence and, in quite astonishing displays of hypocrisy, some of the premiums objected to in one case are used as comparator evidence by the very same Defendant costs firm in another. Hypocrisy aside, there are often two major difficulties with the way Defendant firms present this “evidence”.

The first problem is a near-total ignorance of CPR 32. The second is an almost-as-impressive disregard for the rules relating to disclosure.

CPR 32.6 provides that the general rule for evidence other than at trial (such as detailed assessment proceedings) is to be set out in a witness statement. Evidence in a statement of case or application notice may be relied upon if that document is accompanied by a statement of truth. Evidence simply shoved on the back of points of dispute is not admissible and it is difficult to see what can usefully be said in a witness statement – “we found something cheaper” is hardly a killer argument in the context of the premium having to be reasonable and proportionate, and any argument based around actuarial calculations would be a matter for expert evidence. Expert evidence is likely to cost somewhat more than the premium in dispute and would thus lead to disproportionate costs being incurred, something which the overriding objective requires the parties to avoid.

But how did our Defendant costs friends get hold of their inadmissible comparator evidence? Usually it’s been served on them in costs proceedings. For some reason, Defendant costs firms think that they can do what they like with anything they can lay hands on. That is not the case.

CPR 31.22 provides that:

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

Guess how many of the above are routinely complied with when paying parties produce their comparator evidence? The point, when made, that they may not rely on the comparator documents is not usually well received by paying parties.

In summary, comparator ATE evidence is routinely supplied in an inadmissible format using documents on which the paying party may not rely. What does this mean for clinical negligence fee earners? It should mean that you can insure your client against the risk of having to pay for liability and causation reports without having to worry overmuch about the comparator evidence routinely advanced.