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The bumpy ride continues

Bumpy road image

By David Pipkin – Director, Underwriting Division

By way of introduction, my predictions in the January newsletter of a bumpy ride in 2019 seem to be bearing out. Below I pick up on a few of those points in order to keep you informed of the key issues impacting on litigators and claimants in the clinical negligence and personal injury sector.

MoJ Post Implementation Review of LASPO Part 2 – starting on a positive note, the MoJ’s announcement that no further reforms are proposed for the time being is most welcome. They accept that savings have been made – but does this mean the concerns from the DoH have been dealt with in relation to the cost of clinical negligence claims?

I doubt it. It seems the partial recoverability of ATE insurance premiums for clinical negligence claims will continue for the foreseeable future; though it appears the MoJ see the judiciary as being more involved in assessing the reasonableness or otherwise of the insurance premium.

NHS Resolution continue to challenge ATE insurance premiums and the Court of Appeal will adjudicate in the conjoined cases of Demouilpied and West v Stockport NHS Foundation Trust in June. These cases concern block-rated premiums provided by an ATE insurer. Many applications are being made to stay costs assessments pending this decision – which will cause another log jam regarding costs.

Our key recommendation to fee earners conducting cases is to write a brief file note at the time the ATE insurance is taken out saying why, with reference to the facts known, the ATE policy is considered appropriate. We appreciate this is on top of all the other obligations in relation to funding. However, spending six minutes on this at the relevant moment can save a lot of time and costs at the detailed assessment stage, and help ensure recoverability of the ATE insurance premium.

A fixed costs regime (FRC) for clinical negligence cases remains before the Civil Justice Council. We now also have a consultation on extending the scope of FRC to most personal injury claims and other litigation worth up to £100,000. This consultation period ends in June.

Defamation and mesothelioma ATE insurance premiums remain recoverable. This is good news on two fronts – preserving access to justice for vulnerable people and where opponents such as media companies have real financial muscle!

The MoJ say they will review the extent of QOCs – should they extend to cover actions against the police and other detaining authorities, plus housing disrepair disputes?

Disbursement funding has become an integral part of the clinical negligence litigation process. I am convinced we will see a landmark decision later this year regarding the recoverability of interest from the losing party.

We look forward to hearing from you and meeting you in the coming months at the industry conferences we will be present at. Our aim is to continue providing you and your clients with the best ATE insurance and disbursement funding at a competitive price, backed by a first-class service.

David Pipkin

Non-Executive Director
Read articles by David Pipkin

David Pipkin

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