Page 6 - PIC Magazine Autumn Issue 13
P. 6

 Guidance on
ATE Premium Recoverability
Rupert Cohen is a Barrister at Landmark Chambers and was Junior Counsel for the successful Appellant in West v Stockport NHS Foundation Trust – [2019] EWCA Civ 1220. Here he reports on the ATE element of this case.
       his decision is the seminal decision which sets out the manner in which the new, post-April 2013 test of proportionality is to be applied. It consigns Lownds v Home Office (Practice Note) [2002] EWCA Civ 365, [2002] 1 WLR 2450, which sought to draw a parallel between a necessary item of cost and the test of proportionality, to the history books. The decision itself was made in the context of ATE premiums.
The Court’s comments on proportionality have been addressed on page 20 in the magazine by Sean Linley, Cost Consultant at PIC. This article focusses on how the test of reasonableness and proportionality are to be applied to those ATE premiums which can still be recovered from opposing parties.
The Court of Appeal in West v Stockport, to all intents
and purposes, chose to isolate block-rated premiums recoverable pursuant to section 58C which have been assessed as reasonable from the full rigours of the new test of proportionality. It did so because: (i) those premiums are a function of block-rating which is incompatible with the new proportionality factors in CPR 44.3(5) which are, by their very nature, case specific; and (ii) the purpose of section 58C is to improve access to justice.
The effect of the Court’s judgment is to swing the focus back (in respect
of all premiums which
are still recoverable) on reasonableness. This is because the “old” pre-1 April 2013 test of proportionality tended to have little, if any, appreciable effect on the recoverable level of the premium from a paying party. The reason for this
is because of the inter-play between Lownds and Rogers. In brief, in Rogers, the Court of Appeal held that if the premium was necessarily incurred “principle and pragmatism together compel the conclusion that it was
a proportionate expense” (paragraph 106 of Rogers).
   So far as ATE premium recoverability is concerned premiums will still be recoverable where:
A. The policy was incepted in relation to the proceedings prior to 1 April 2013 (s.44(3) LASPO 2012).
B. The policy is in clinical negligence proceedings with a financial value of the claim for damages in excess of £1,000 and insures against the risk of incurring a liability to pay for one or more expert reports relating to liability or causation, in which case the amount of the premium that may be required to be paid under a costs order shall not exceed that part of the premium which relates to the risk of incurring liability to pay for an expert report or reports relating to liability or causation (s.58C Courts and Legal Services Act 1990).
C. The proceedings relate to publication and privacy proceedings or mesothelioma (or insolvency-related proceedings pre-6 April 2016) (see summary in the notes to the White Book at
Costs assessments on the standard basis apply the twin measures of reasonableness and proportionality. They are conceptually distinct (Rogers v Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134; [2007] 1WLR 808 at paragraph 104) but often elide. The new test of proportionality applies to premiums recoverable pursuant to section 58C Courts and Legal Services Act 1990 (Peterborough and Stamford Hospitals NHS Trust v McMenemy [2017] EWCA Civ 1941). The old test of proportionality applies to premiums recoverable because the policy was incepted prior to 1 April 2013 or because the proceedings in which the policy is incepted falls within the limited range as set out in CPR 48 (BNM v MGN Ltd [2017] EWCA Civ 1767).

   4   5   6   7   8