David Pipkin, Director Underwriting Division, Temple Legal Protection Limited
What is ATE insurance risk assessment best practice?
I previously reflected on what a good basic risk assessment for ATE insurance should be and Temple’s experience as to why many cases are discontinued far too late, causing higher claims exposure. I want to concentrate on risk assessment for clinical negligence cases, where I consider there is no place for any complacency. There must be a detailed risk assessment and probably a separate case plan setting out defined goals with a strict timetable.
I accept such cases take considerably longer to reach a resolution, but what we are seeing is a substantial increase in the time it is taking for cases to conclude. There are many reasons for this, including the conduct of the NHSLA, but it is also noticeable that even when damages are awarded or agreed there is often unnecessary obstruction and delay from their cost agents.
We are seeing more and more cases stalling because there is inadequate management of the case timetable. Too much time is being spent on identifying the appropriate experts followed by long delays in obtaining the experts reports, with no plan “b” in place. Additionally, there are many occasions when too much time and money is spent trying to turn an unsupportive expert around.
The new funding regime forces Claimants to take out ATE insurances much earlier. It is crucial that the risk assessment is adequate and backed up by objective evidence with a realistic timetable.
The rise in ATE insurance claims in Clinical Negligence is also, to an increasing degree, due to accepting the subjective evidence of the client alone. This is not usually a good risk assessment, as law firms with a higher than average claims frequency will find it more difficult to obtain ATE insurance.
What is ATE insurance risk assessment best practice?
- Review your current risk assessment procedures and measure their robustness against data on wins and losses
- Implement constructive changes if you spot a weakness
- Include your ATE provider in those reviews
- Properly record your risk assessments and follow up the actions
- When a claim has to be submitted to your ATE insurer take time to explain the reasons why prospects have reduced
- Revisit your assessments and close cases down as early as possible if prospects fall
- Do not rely on Counsel alone and create a work ethic that encourages review and reappraisal of prospects of success amongst your fee earners
- Budget your disbursement spend and work in progress (WIP)
- Have appropriate checks and balances in place to reduce your spend and time until you are confident that all relevant facts and evidence are available to confirm the merits of a case
- If appropriate, set work in progress limits on different types of cases
- Keep records of successes and failures, and liaise with your ATE provider who should be able to give the statistics and data to show whether you are the right side of the line
This is by no means a comprehensive list but adherences to the above will, I suggest, lead to less time being written off and reduce claims, including the amount of the monetary claims.
If you can confidently say that all of the above is happening within your team, you should be seeing healthy wins statistics and few claims. If that is not the case, then please call Temple’s Underwriters who are only too happy to work with you to create a more robust process.
Remember, ATE Underwriters see the good, the bad and the ugly, so we should be seen as adding value to your risk assessment process.
To find out the benefits and join the hundreds of law firms who choose Temple’s ATE insurance for Clinical Negligence and Personal Injury claims please call Matthew Best on 01483 577877 or email Matthew.Best@temple-legal.co.uk.
You may also want to read about
- ATE Insurance, The SRA Standards and Regulations 2019 and the importance of judgment – link to https://www.temple-legal.co.uk/news/compliant-or-complaint/
- The due diligence needed when choosing ATE insurance and funding providers – link to https://www.temple-legal.co.uk/news/due-diligence-needed-choosing-ate-insurance-funding-providers/
David was Director of Temple’s Underwriting Division for 14 years during which time he supported Temple’s coverholders with his exceptional knowledge, expert guidance and friendly countenance.
He is now a Non-Executive member of the board supporting the strategic direction of the company and attending key events and meetings with our customers.
David has spent over 40 years as a Legal Executive specialising in personal injury litigation. Initially, he was a claimant litigator pursuing leading industrial accident and disease cases.
As an Associate at Davies Arnold Cooper for over a decade he managed a team of lawyers and acted for defendants in personal injury and general insurance litigation. In this role, he became involved in the early development of the ATE market, assisting the ABI in their involvement in the Court of Appeal test cases such as Callery v Gray.
As the London representative for FOIL he was involved in the liability insurers’ approach to ATE and worked with the government and judiciary in several key consultations. He was a member of the CILEX National Council for over 15 years and was CILEX President in 1995/6.
Read articles by David Pipkin