In switching a clinical negligence case from legal aid to CFA, the costs judgment in EPX v Milton Keynes University Hospital NHS Trust  was an unhelpful decision for ATE insurance premium recovery. It is another win for the paying party – as the claimant lost the appeal against the Master’s initial ruling.
The High Court held that the burden of proof lay on the receiving party. It was noted that there was no evidence there was any informative communication as to the ‘swings and roundabouts’ of switching funding. There was also no evidence that the possibility of a lack of ATE insurance being available after April 2013 was ever taken into account.
Moreover, the solicitors had requested that the legal aid limit be increased; which suggested that, had funding been extended, the case could have been issued without recourse to a CFA/ATE insurance arrangement at the time it was entered into.
In addition, it was also found that obtaining quantum reports at the early stages of litigation without seeking LSC authority to do so ‘was done at their own risk’. The Master appeared correct to conclude that the solicitors were sufficiently experienced enough to have a ‘ball park figure’ for the value of the claim after medical evidence had been obtained. While it might not be unreasonable to obtain early quantum reports, it was also not unreasonable not to obtain them.
Currently we are in worrying times when it comes to switching funding from legal aid to a CFA with ATE insurance. With so many adverse decisions before us I firmly believe further and clearer guidance is needed from the judges. These rulings beg the question as to whether an ATE insurer will still be required to bear the claim had this case actually lost in its entirety? As the age-old saying goes, you cannot have your cake and eat it.
A couple of question for the lawyers out there:
1) Are you confident the advice you’re giving your client is enough?
The fact of the matter is that a client must be enabled to make fully informed decisions, particularly in circumstances where it is not a foregone conclusion that the recommended course of action is in the client’s best interests.
2) Have you informed your client that they are foregoing the 10% uplift?
This is a significant point and evidently comes at a cost to the solicitor if not – via the success fee and the ATE insurance premium.
This decision was, of course, fact specific; it does not necessarily follow that switching from legal aid to a CFA in other circumstances would not be perfectly reasonable.
As an ATE insurer ourselves, a big question is – will we insure these types of cases if the premiums cannot be recovered? Broadly speaking it has to be a no. Surely something has to change?
If you have a view on this, please do get in touch to share your thoughts. You can reach me via email to firstname.lastname@example.org or a call to 01483 514804. I look forward to hearing from you.
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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.
Read articles by Matthew Best Cert CII