If nothing else, the law is quite clear in one thing. Post 1st April 2013, it is only in Clinical Negligence matters where ATE (After The Event) premiums relating to causation and liability reports still remain recoverable.

The recommendations contained in the Jackson Report, implemented in their majority on the 1st April 2013, effectively saw a significant change in the way in which additional liabilities become recoverable, with Personal Injury and Clinical Negligence being the most significantly affected areas of practice.

For example, legal aid has largely been withdrawn for Clinical Negligence, in addition successful claimants will no longer be allowed to recover success fees from the losing party. Conditional Fee Agreements (CFAs) and Damages Based Agreements (DBAs) are, therefore, all the more vital for claimants to seek out.

As the law now stands, it is for the defendant, as the potentially paying party, to advance a viable case that the amount of the premium is either unreasonable or disproportionate.

The Legal Aid Sentencing and Punishment of Offenders Act 2012 LASPO) has also paved the way for a change in common insurance practice. In effect, because premiums include both recoverable and non-recoverable elements, it has become usual for Clinical Negligence insurers to rate the recoverable element higher than the non-recoverable parts.

In practice of course, in the majority of clinical negligence cases, the defendant will be the NHS, although private medical practitioners and healthcare organisations may also be sued.

Because there is relatively little in the way of fresh case law for us to draw upon following the new regime, we are currently relying on a handful of decisions to help interpret the changes, post-Jackson. The first to consider here is Nokes v Heart of England Foundation NHS Trust.

Here, it was held by Master Leonard that the premium needed to be considered in its entirety. What this means is that, in this case, the Defendant’s attempted reliance upon the judgments in Kelly v Blackhorse and Redwig Construction was unfounded, and that this case could be distinguished on the facts.

Nevertheless, given the relative sparseness of new case law, it is still relevant to draw on the old pre-Jackson cases such as Rogers v Merthyr Tydfil. In particular, this case addresses the comparison between staged and single premiums, as well as considering the potential minefield that is the appropriate selection of the policy by the solicitor. Most importantly, Rogers also addresses the way in which is a policy is rated, i.e. insurance risk or case specific risk, and considers the implications of the proportionality of the costs arising, using each method.

Finally, it’s still worth mentioning the case of Kris Motorspares. This highly regarded judgment held that the onus for providing evidence falls upon the paying party – a rule that has endured through many a convoluted case.
So, in summary, while the law might be clear, there are some very subtle nuances which must be considered. And that remains an extremely good reason to seek expert guidance. After all, the last thing any of us want is to have a case turn on an obscure point of law, rather than fact.