We all remember the mad "pre-Jackson” rush in February and March 2013. Everyone was desperately trying to buy ATE insurance before 1 April 2013 to cover their older cases, and at the same time finalise CFAs on all their latest cases. It was a short period of pandemonium and it was perhaps almost inevitable that there were going to be a few cases where the defendant was not notified of these "additional liabilities” (the premium and the success fee) within the necessary seven days/when the defendant was first contacted.
As costs on this era of cases are now beginning to be recovered, these occasional lapses are beginning to surface, but there has been a very helpful ruling which it is worth letting you know about below. We hope it helps - both for those rushed cases, and generally!
Antonio Caliendo and Barnaby Holdings LLC v Mishcon de Reya (2014)
ATE Policy recoverable, despite 3.5 month notification delay without good reason
The Issues: the Claimants purchased an ATE policy in February 2013 and signed CFAs with their solicitor and their counsel in February and March 2013 but the claimant’s solicitors failed to notify the defendant within the 7 days required under the Rules, and only notified the defendant of these "additional liabilities” on 11 June 2013 - 7 days before court proceedings were issued. The claimants could not give any good reason for this oversight and delay - in effect it was a simple administrative mistake. The defendant argued that the lack of notification had affected how they had behaved in pre-issue negotiations. Could the ATE policy premium and the CFA success fee nevertheless, be recovered from the defendant?
Held: The Honourable Mr Justice Hildyard ruled that it would not be ‘fair, just or appropriate’ to deny the claimants relief, since the defendants had not been prejudiced by the breach. The default was serious because the relevant rule provided for an automatic sanction if it was breached. He nevertheless held "I do not consider in the round that it occasioned serious and/or significant adverse effect on the efficient conduct and progress of this litigation nor of the conduct and progress of other litigation in these courts”, and "Despite the need to encourage compliance, I do not consider it would be just to withhold relief from sanction.”
Comment: It is important to note that this hearing was deferred until after the judgments in both the Mitchell and Denton cases (both of which dealt with the sanctions which should apply when rules had been breached), and this decision clearly followed the guidance given in those two cases.
The issue of costs was deferred to a further hearing, but it would appear quite likely that the defendants will not be ordered to pay all the costs of this issue, despite the claimant’s successful relief from sanctions.