By Bipin Regmi, Senior Underwriter
This article provides an overview of the importance of risk assessments in personal injury and clinical negligence claims, from the perspective of an ATE insurance provider. It outlines how such assessments inform both the viability of a claim and the insurer’s decision to provide cover and examines what solicitors should consider when presenting cases for ATE insurance.
According to NHS Resolution’s annual report of 2023/2024, the NHS’s payout amounted to £2.8 billion in compensation and associated costs, the NHS received 13,784 new clinical negligence claims and only 52% of the clinical claims resulted in payment of damages.
A solicitor’s risk assessment is an important part of any personal injury and clinical negligence claim. From an ATE insurer’s perspective, risk assessments are vital in order to assess whether to provide legal insurance cover, whilst also managing potential liabilities.
Some assessments are straightforward in a personal injury claim, but in clinical negligence claims, this can be more complex. An effective risk assessment can early on eliminate claims that do not have good prospects whilst, at the same time, identify what will need early investigation in order to ascertain the prospects of success.
Assessments of risk are particularly important to solicitors as most are instructed under a Conditional Fee Agreement (CFA) in personal injury and clinical negligence claims. If the claim is not successful, the solicitors will not get paid; therefore, a robust risk assessment is of upmost importance at the outset of the claim. It is also equally important when presenting the claim to your legal insurer for ATE cover.
The process of risk assessment involves identifying factual and legal implications of the claim, including the financial implications and mitigation of risk of costly claims.
Importance of effective risk assessments
Effective risk assessments help identify the weaknesses and form a plan of action to run a personal injury or clinical negligence claim successfully. By identifying and understanding these risks, solicitors can plan and identify measures to run the claim effectively. This will identify what to do, how to counter any pitfalls early on, and how to tackle those which may make a difference to the success of the claim.
Although solicitors may not enjoy doing a risk assessment after seeking instructions from a prospective client, if the process is done properly it will save a lot of time and cost and provide effective guidance about how to run the case to a successful conclusion.
An effective risk assessment will help investigating the claim, working out potential problems and what needs to be done. Importantly this process can help eliminate a claim which does not have good prospects early on.
A solicitor should understand that an insurer is there to provide a service and, as such, a solicitor’s and insurer’s objectives are different. If the claim is unsuccessful, there are disadvantages to both – the solicitors, who are usually under a CFA, will not recover any costs – and the insurer will have to pay the costs of the claim, which can often be six figures.
Your insurer is there to assist you rather than be difficult whilst providing cover. Insurers need to protect their interests and will need to investigate the claim properly prior to providing cover. An insurer may request a response to various queries and ask for various documents to review and evaluate the claim before providing cover. Here at Temple, we may request further information from our coverholders where a case is outside of our delegated authority scheme.
The following considerations will assist the insurer in their assessment of the claim –
- Assess the factual case with legal elements – including duty of care, breach of duty, causation and loss.
- Test the evidence provided by the claimant with objective evidence such as medical notes and records, accident reports, medical reports (screening reports), inquest notes, internal investigation report/serious injuries report etc.
- If you are unsure of the prospects or there is a particular legal or factual issue in a claim, encourage internal review amongst your fee earners.
- If in doubt, seek independent advice from an experienced counsel. Although counsel’s advice may not always be necessary, this will assist the insurer in considering the risks of the case and whether to provide cover or not.
- A counsel’s positive advice does not always mean cover will be provided – that is decided on case-by-case basis – but it will certainly be helpful.
- Provide as much evidence as possible as this will help the insurer in their decision on whether or not to provide cover.
- Complete a risk assessment form and provide a copy with the claim. If you wish to review your risk assessment process, speak to your ATE insurer who will be happy to assist.
The insurer will consider if the case has good prospects – you will need to convince the insurer of that by providing enough evidence. Simply stating the claim has good prospects of success is unlikely to be satisfactory but a well thought-out summary in respect of those prospects may help persuade the insurer to provide cover.
- If you have concerns about any aspects of a claim you are dealing with, have dealt with a similar claim successfully previously or encountered any problems which you successfully dealt with, do let your insurer know. It is best to be open and honest about the claim and to work in collaboration with your insurer.
- In most clinical negligence claims, initial breach and/or causation expert evidence may be required and it may be difficult for you to provide prospects of success until such evidence is received.
- The insurer is looking for a case summary on why the case is worth investigating; a thoughtful summary on why the claim has reasonable prospects of success and is one worth investigating will always be helpful.
- Most claims have weaknesses, it is therefore important to provide your plan of action to counter the weaknesses.
The above is by no means a comprehensive list.
Summary
A risk assessment is an important part of any personal injury and clinical negligence claim. From a legal insurer’s perspective, an effective risk assessment is important to help them provide suitable insurance cover and maintain financial stability.
By identifying the factual/legal aspects of the claim and risks associated with it, providing supportive documentation and a realistic plan of action, a legal insurer will be better equipped to decide on whether to provide cover and to mitigate any potential liabilities.
A comprehensive and proactive approach to a risk assessment is not only beneficial to an insurer but also the solicitor as an important step towards the successful resolution of a claim.
At Temple, we are always happy to use our extensive experience to help our coverholders and partners with their risk assessment process, and to consider your existing process, should you wish us to do so.
Please call Bipin Regmi on 01483 514414 or email with your questions and observations on this topic or to discuss your ATE insurance or disbursement funding requirements.
Bipin Regmi
Senior Underwriter
Bipin Regmi
Bipin qualified as a Solicitor in 2019. He has extensive experience dealing with personal injury, clinical negligence and professional negligence claims.
Bipin joined Temple as a Senior Underwriter in 2024.
With his knowledge of legal practice and understanding of risk assessment, Bipin brings a unique perspective to the underwriting process, ensuring that all decisions are informed by thorough analysis and sound judgement. His legal experience is invaluable to the business and our clients.
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