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ATE premium is “costs” in a deemed order for costs following acceptance of a Part 36 Offer

The case of Dance v East Kent University Hospitals NHS Foundation Trust & Ors [2022] EWHC B9, raised two ingenious arguments for Costs Judge Leonard to consider when assessing the claimant's costs of a clinical negligence claim in the Queen's Bench division of the High Court.

The first submission was whether the claimant can recover the cost of an ATE insurance policy premium, included in the claimant's bill of costs, as a Part 36 offer did not amount to an order for costs as confirmed by the Court of Appeal in Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654.

However, the claimant’s right to recover costs arises under CPR 36.13(1). CPR 44.9(1)(b) provides that in those circumstances, a costs order in the claimant’s favour will be deemed to have been made on the standard basis. This argument of course failed.

The second argument involved the defendant relying upon an editorial note at paragraph 48.0.4 of Sweet & Maxwell’s “Civil Procedure” (“the White Book”). This argument involved consideration of the deemed order for costs following acceptance of a Part 36 offer and whether the term “costs” can be given two different meanings. In essence was a specific order mandating payment of the ATE premium necessary?

Whilst the judge admired the ingenuity of the defendants’ submissions, he did not find them persuasive, despite this meaning he disagreed with the conclusions reached by the author of the note in the White Book.

The judge found that the recoverable ATE premiums do fall within the definition of "costs" at CPR 44.1(1). A costs order will permit a claimant to recover a recoverable ATE premium against an opponent, unless the order makes provision to the contrary.

The claimant’s ATE premium was therefore allowed in the sum sought of £5,266.01.

We provide tailor-made After The Event Insurance policies for all clinical negligence or medical negligence claims. All of our policies are designed to be flexible, competitively priced yet comprehensive to deal with a wide range of accident circumstances. Contact us now to find out more.


Here at Box Legal we have been offering after the event legal expense insurance since 2004 and have a wealth of experience. We have competitively priced ATE insurance policies available for all types of personal injury claims and can also arrange legal expense insurance cover for non-personal injury claims such as housing disrepair and financial mis-selling.

The number and variety of cases we arrange cover for is always increasing and so please contact us to discuss any after the event insurance requirements. We are happy to discuss and develop ATE insurance for case types we do not already insure.

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