It can be used in any type of litigation and by either a claimant or a defendant, although in practice ATE Insurance is mainly used by claimants. The ATE Insurance cover is normally purchased by solicitors on behalf of their clients. The After the Event Insurance policies we arrange are available only to claimants but are available for a whole range of litigation matters including personal injury, housing disrepair, financial miss-selling and probate claims.
After The Event Insurance policies normally cover the legal costs which a Claimant must pay to a defendant when a claim is unsuccessful – when the claim is either lost at trial, or abandoned/settled after the defendant has incurred costs which the claimant is liable to pay.
Our ClaimSafe ATE Insurance policies cover claimants not only for those adverse legal costs, but also for the disbursements which their solicitors have incurred in pursuing the claim – the sums they have laid out on the claimant's behalf: for example police and medical reports, Court fees, Counsel’s fees, survey reports etc.
ATE Insurance is purchased after an accident or cause of action(“The Event”) has taken place, but normally before any significant legal costs or disbursements are incurred. This means most ATE Insurance policies are purchased at the point at which a solicitor begins acting for a claimant. The overall concept of an ATE Insurance policy is that it will protect the claimant against their costs risks right from the outset. If a claim is insured at a late stage, then (as with most insurance policies), costs and disbursements which occurred before the date of the After the Event Insurance policy will not normally be covered. Since, when they commence, many litigation claims fall within a broadly similar risk category, many ATE insurers offer a standardised ATE policy premium if the case is insured early.
Most other ATE insurance policies involve solicitors in considerable administration, requesting a policy to reporting to the ATE insurer, and this has caused some solicitors to avoid insuring cases until they become risky and/or costs are high. If the case is lost, the disbursements incurred before the ATE Insurance policy started are then paid by the solicitors out of their own pockets. When ATE insurance was still being developed, defendants argued that this procedure should always be adopted - they suggested that a claimant should not purchase an ATE policy until Court Proceedings were started (because it is only from that point onwards that a claimant becomes liable to pay the other side’s costs). The Supreme Court (Callery v Gray) disagreed however and confirmed that it was entirely reasonable to purchase all After the Event insurance right at the beginning of a case. It acknowledged that when a case first started there was only a very small risk that costs might eventually be awarded against a claimant, but it nevertheless affirmed the insurance principle that the many low risks pay for the large risks which very occasionally occur.
Our Claimsafe ATE Insurance policies are, on contrast, very easy to request and administer with very little reporting requirements making them an ideal choice for claimants.
It has become common for solicitors to purchase their client’s ATE Insurance policy only at a later stage - generally when Court proceedings are issued or sometimes even later - once it is apparent that the claim is becoming complex or risky. The courts have confirmed that it is permissible to purchase After the Event Insurance late in the day. However, the general disadvantage of insuring late is that a high level of costs will have been incurred by this time, and the risks of losing are considerable, so the ATE insurer’s vetting procedure is likely to be extremely rigorous and the After the Event Insurance premium the ATE insurer charges will be very high in comparison to what is normally a fixed standard premium if the ATE Insurance policy is purchased at the outset. The difficulty will lie firstly in convincing the insurer that the claim is still likely to succeed and secondly in convincing your client (who has to pay the ATE Insurance premium), who will argue that it would have been much cheaper if you had taken out the After the Event Insurance policy at the outset!
The Access to Justice Act was bought into force in 1999 and was intended to offer an alternative to the traditional way of funding litigation.
The Act allowed client’s to insure themselves against the risk of having to pay the Defendant’s costs, should their case be unsuccessful, with an After The Event Insurance policy. Prior to this, it was likely that if you lost your case, you would be responsible for the legal costs of the Defendant, which could run into thousands of pounds.
A CFA (Conditional Fee Agreement) is a "No win, no fee” agreement. The claimant's solicitor agrees that he or shewill not charge for his or herservices if the claim is unsuccessful. Even with such an agreement in place however, the claimant still risks being liable for his solicitor’s disbursements, and potentially for some of the defendant’s costs if he/sheloses. The Law Society’s wording on its recommended form of CFA states that the claimant may have to pay his/hersolicitor’s disbursements if the claim is unsuccessful. The ClaimSafe After the Event Insurance policy covers this risk.
Sometimes there is no CFA between a solicitor and the claimant – instead, the claimant agrees to pay his or hersolicitor irrespective of whether or not the claim is successful, but normally ATE Insurance should still be purchased because the claimant will again want to avoid being liable for his or hersolicitor’s disbursements and the defendant’s costs if he or sheloses. Our ClaimSafe ATE Insurance policy can be utilised in such circumstances.
Premium details for any of the ClaimSafe policies are available on request.
For many policies we can offer you a choice between single or staged premiums, and between a monetary or percentage premium (calculated as a percentage of the damages your client recovers). You can therefore select the premium structure which best suits your client.
We are also able to tailor premiums to the success rates of your firm and type of claim. In this way, firms with a good track record are able to benefit from lower premiums than perhaps available elsewhere.
You can find out more about Paying for ATE Insurance here.