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Victims of injury and medical accidents could still lose all their damages
The recent handing down of the decision in Ho v Adelekun by the Supreme Court has met with mixed reactions in legal and insurance circles.
The large and highly resourced defendant law firms were keen to make much play of the fact the judgment acknowledged that “this conclusion may lead to results that at first blush look counterintuitive and unfair.”
There has been rather less mention of the fact that claimants, the victims of personal injury and medical accidents could still lose all their all damages – to satisfy the costs appetite of the defendant in cases where a part 36 offer goes unbeaten.
The good news for claimants is that the decision reverses Howe v MIB and reinforces the original intention of the QOCS regime. This being that, in cases where a Part 36 offer has been accepted out of time or unbeaten at trial, the defendant’s right to recover their costs is capped at the value of the damages that they pay to the claimant.
However, this still puts the claimant at risk if they don’t accept an offer. In recent years and in many cases, savvy defendants have made early offers where the claimant and their legal teams were not yet able to properly assess the extent of both their injuries and future care needs.
Whilst the Judgment protects claimant’s costs so that, in effect, the solicitors will still get paid for the successful part of the case, the defendants will still be able to pay themselves their own costs up to the value of that early offer.
The consequence of this ruling is straightforward; ATE insurance is still very necessary for claimants.
Temple have long maintained that the intention of the Jackson reforms was only ever to allow limited cost shifting relating to damages – and not pre-offer costs. During this period of uncertainty I’d like to remind you that Temple have protected policyholders’ interests by continuing to provide indemnity.
In summary, we welcome this decision. It is one that will help Temple and other ATE insurance providers maintain the availability of affordable, high-quality cover for claimants – no matter what their means – and reiterate the importance of claimants’ continued access to this protection.
If you would like to discuss the implications of this decision in more detail, please do call me on 01483 514804 or send an email to matthew.best@temple-legal.co.uk.
Matthew Best Cert CII
Head of Personal Injury & Clinical Negligence
01483 514804
Matthew Best Cert CII
Matt has an insurance background and joined Temple in 2011 having worked for 4 years in a leading insurance company where he was dealing with personal injury work. Matthew was promoted to Underwriting Manager and subsequently Senior Underwriting Manager taking on overall responsibility for Temple’s personal injury and clinical negligence underwriting department.
In 2022 Matt joined the board of directors as Director of ATE Partnerships. Matthew has cultivated fantastic relationships with our business partners for many years. His ability to build a clear understanding of their requirements and more importantly what is required to fulfil such requirements means he is ideally placed to support the strategic direction of the company.
Matt remains the head of the personal injury and clinical negligence department and is committed to all Temple’s business partners in order to deliver the highest level of service they expect. He is also responsible in making sure that Temple’s ATE and disbursement funding products remain competitive, but most importantly that they are fit for purpose for solicitors and their clients.
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