Box Legal Logo
Home > After The Event Insurance Blog > After the Event Insurance & The Jackson Consultation

ATE Blog

After the Event Insurance & The Jackson Consultation

We have our auditors in today so I shall be brief - I keep getting asked to count paperclips etc.

OK where were we with the consultation. Oh yes - item no. 6:

6. Page 28 (The Consultation): talking about success fees and CFAs - " is also argued that these costs [i.e. the success fees the defendant's have to pay] are reflected in the guideline hourly rates, published by the Master of the Rolls." In other words, the defendants argue there shouldn't be any success fees as these are already incorporated into the taxable court recoverable rates. So that would be the recoverable rates in fixed fees would it - the ones which were agreed by the defendant insurers in the 'Big Tent' meetings with er, a success fee on top. Talk about changing their minds.

7. Page 31 (ATE Insurance): "If the action is lost, the [After the Event Insurance] premium is not payable. If the case is won, then a slightly larger amount (to pay for premiums which are not paid in lost cases) is recovered from the losing opponent." Who told Sir Rupert that? The defendants? We have never heard of such a thing. The premium is the same win or lose - if it were cheaper if you lost, I suspect the defendants would have challenged it by now. More mud slinging I suspect.

8. Page 32 (ATE Insurance): "He [Sir Rupert] proposes that the test [qualified one way costs shifting] should operate restrictively, so that claimants are only exceptionally required to meet the defendant's costs, and therefore ATE insurance is effectively unnecessary to cover that risk. He also suggests that the judge should consider at the end of the claim whether to make a costs order, and if so should determine the amount summarily." Brilliant! Claimants can make claims without knowing for sure whether or not they are going to have to pay the defendant's costs - reminds me of another system. Oh yes, it's what we have at the moment except now the costs liability follows the loser. Sir Rupert proposes that claimants try to second guess the judge. Will claimants really want to take this risk?

9. Page 48 (The proposed Rule on QOCS): "Claimants may also lose their costs protection in those cases where the parties are on an equal financial footing, for example where the defendant is not insured, or where the claimant is a large company or is conspicuously wealthy." Interesting. So if a defendant fails to take out insurance, they benefit from having the chance to obtain costs from the claimant. Also, we have that phrase 'Conspicuously wealthy' again. Better define that one carefully Sir Rupert. Is that spare cash or assets? What about mortgages or loans - are they taken into account? Who is going to assess all of this - the overworked courts?

10. Page 60 (Alternative Package 1 - Fixed Recoverable Success Fees): "Recoverable success fees have so far been fixed in the areas of litigation where the volume of claims is high and where there is a relatively small number of large defendants (e.g. insurance companies) from which data can reasonably easily be gathered." Says it all really. The Ministry of Justice has been relying on the data provided by defendant insurance companies. Do they not think that this is a little unfair and could be skewed?

Right - I have been told by the bean counters to stop now. They are saying something about pens - or it could be hens. Not sure. 

Box Legal Limited: After the Event Insurance Providers
  | | 0870 766 9997

We use cookies to improve your experience of our website. Click here to read more.