The Issues

Both cases were heard by the Court of Appeal at the same time. Both were clinical negligence claims against the NHS Trust which had settled without the need for court proceedings. The dispute centred on the level of the recoverable ATE premium in each case.

The first case (West) settled for damages of £10,000 and the ATE premium claimed was £5,088 in a total bill of costs of £31,714.44. The second case (Demoulilpied) concluded with damages at £4,500 with a bill of costs served for the amount of £18,376 and the recoverable element of the premium also at £5,088. The ATE policies taken out were block-rated policies and set by reference to a wide "basket" of cases, rather than on their own merits.

It was initially held that the premiums claimed would each be reduced to £2,500 and £650. The basis of the decision in West was that the premium was unreasonable. The case was not complex and the recoverability of the ATE premium was initially limited to the cost of medical reports only. The basis of the decision in Demouilpied was that the ATE policy was reasonable but proportionality meant it had to be reduced.

Both first appeals were dismissed and it was held that the judges had taken the correct approach when assessing the ATE premiums when applying the principles of reasonableness and proportionality.