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The Ministry of Justice has recently confirmed an amendment to the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) which will allow ATE insurance premiums for expert reports to be recovered from the defendant in clinical negligence cases. This has been met with relief by those concerned about the overall removal of ATE premium recoverability, because the cost of disbursements can be a considerable disincentive for victims pursuing valid claims even with the protection afforded by Qualified One-Way Costs-Shifting (QOCS).

QOCS IN PERSONAL INJURY LITIGATION

On the topic of QOCS, the Ministry of Justice has also recently clarified how QOCS will be applied in personal injury litigation once LASPO is implemented in April 2013. It has been confirmed that there will not be a financial means test applied to determine whether a claimant is eligible, a reassuring statement for those who were concerned about a ‘two tier’ effect on the legal system.

The significance of QOCS for claimants will be the fact that they will no longer have to pay the defendant’s costs if they are unsuccessful in the action. The protection that QOCS affords the claimant if they are unsuccessful, will however still be lost in certain circumstances under the new regime. These include where the claim is found to be fraudulent on the balance of probabilities or where the claim is struck out due to no cause of action or abuse of process. Importantly, this protection will also be lost where the claimant fails to beat a Part 36 offer made by the defendant, although liability for costs will be limited to the damages recovered.

PART 36 OFFERS AND ATE INSURANCE PREMIUMS

Given these costs consequences, there is a risk that defendants will make very early Part 36 offers in order to put the claimant at risk of adverse costs. It will be interesting to see how ATE insurers respond to these changes and whether insurance products for these risks will be available, despite the fact that the ATE premium will no longer be recoverable from the opponent (outside of medical reports in clinical negligence).

The team of expert brokers at TheJudge keep a close eye on both the changes to the legal system as well as movements within the ATE insurance market so can offer up-to-date advice on the most appropriate products for your case. Contact us today to find out more about ATE insurance or to discuss your specific case requirements.