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Supreme Court Costs Decision Means ATE Insurance Still Very Necessary for Claimants.

(Estimated reading time: 1 minute, 59 seconds)

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

Senior Underwriting Manager
Read articles by Matthew Best

Matthew Best

Matt has an insurance background and joined Temple in July 2011 having worked for 4 years in a leading insurance company where he was dealing with personal injury work.

Matt’s experience allows him to undertake a key role in Temple’s ATE insurance personal injury and clinical negligence teams. He also participates in the assessments of delegated schemes that Temple provide with the objective of helping our customers make the most beneficial and appropriate use of ATE insurance.

He has started studying for this CII exams which he will sit in the near future, which he will then use to develop himself, further into the company in order to provide Temple’s customers with the excellent service they expect.

 

Read articles by Matthew Best