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Home > ATE Caselaw > Mitchell v Gilling-Smith (2017)

Mitchell v Gilling-Smith (2017)

Mitchell v Gilling-Smith (2017)

The Issues:

The claimant brought an action claiming negligent treatment of an ovarian endometrioma.  A consultant was instructed and a formal letter of claim sent.  The action was eventually settled for £200,000.  A CFA was entered into in July 2014 and, at the same time, the claimant took out an ATE insurance policy.  This was “split” with a “recoverable” premium of £10,000 and £3,500 for other disbursements and opponents’ legal costs.

The Defendant challenged on the basis of ‘very real doubt’ that the premium was reasonably incurred for expert evidence in a relatively uncomplicated case.


Master Leonard sitting in the Senior Courts Cost Office, said that the argument relied on the hindsight of knowing what a claim would entail and how long it would last.  The Judge said that the overall cost of cover was not limited to the cost of expert evidence and there was nothing to substantiate the policy was excessive.

‘There is really nothing to support the proposition that the claimant’s solicitors must (or at least should) have known that the cost of the expert evidence covered by the recoverable part of her ATE premium would have been in the region of £2,000. On the contrary, if they had made that assumption they would probably have been wrong.’

The policy itself provided cover, to a limit of £100,000, for medical experts’ reports, other disbursements and opponents’ legal costs. The recovered premium for expert reports was £10,000.The claimant had taken out a policy designed specifically for Irwin Mitchell to provide sufficient cover for all clinical negligence claims in respect of all risks. The policy was described as ‘block-rated’ as premiums were calculated by reference to the claims cost of the overall portfolio, adjusted by reference to the value of the claim itself.

The defendant challenged Irwin Mitchell at June’s hearing to state whether there was any financial benefit to the firm from selling or recommending the policy, but Leonard said this was beside the point and he declined to make any such assumption.

The judge said he had not been given any good reason to disallow the ATE insurance, as had happened in cases cited by the defendant. The challenge failed and recovery was allowed in full.


Master Leonard took the clear view that Claimant’s solicitors cannot be expected to know or foresee the amount of medical evidence required and any requirement for independent medical evidence is dictated by the needs of the case.  As for the level of risk, that will also be dictated by the facts of the case.


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