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Clinical Negligence ATE Insurance – FAQ’s

We add your questions about ATE/litigation insurance to our website – the latest ones are at the top.

We have received a challenge to recoverable premium, are you able to assist?

We have an experienced premium challenge team with who are able to assist in preparing replies to any challenge.

My client has died during the life of their claim, can their personal representative resume the certificate of insurance?

The policy can continue with personal representative who is pursuing the matter on behalf of the estate; subject to entering into a CFA with the law firm.

Is disbursement funding available for all of my Clinical Negligence cases?

Yes, providing the case is insured with Temple, disbursement funding will be available.

My firm has a decent cash flow, why would I need disbursement funding?

Running a number of high value cases can tie up money with issue fees and expert reports that may take years to recover. With Temple’s disbursement funding facility, these fees can be settled quickly without affecting your cash flow.

Are you able to provide cover for my Industrial Disease work?

Temple does provide cover on a delegated scheme basis, however, only for claims that arise from exposure to asbestos

Due to the previous funding, we have already obtained our liability and causation evidence and so do not require indemnity A under the policy, can we just take out indemnity B?

Temple Legal Protection are happy to provide a bespoke quote in such matters and any other matters which may require it.

What happens if the Defendant raises a challenge to the recoverable element of the premium, can Temple assist in responding to this?

Please let us know of any challenges to the premium on receipt and our underwriters will be more than happy to assist you with these.

Will you cover the mediation costs if the case does not succeed?

Yes. Normally Claimant solicitors’ are asked to pay 50% up front and that is a recoverable disbursement covered under the policy. The Defendant’s 50% is also covered subject to QOCS.

Why should I use mediation rather than press on down the litigation route to a JSM for example?

Mediation is faster and less expensive – it avoids the legal costs of fighting litigation or even arbitration. Settlement is often agreed on the day (74%) and 15% settle shortly after. It is a non-binding process and even if settlement is not achieved on the day or shortly after, many of the issues can be narrowed down, leading to a faster conclusion of the case.

Could an early settlement ultimately compromise my firms’ profitability?

In the long term cases will settle earlier allowing new ones to come through. Weaker cases could also be discontinued earlier. All in all, you would not lose out from using mediation where possible.

We are a well-established clinical negligence practice: why should we change our way of working now?

Recent guidance from the courts makes it clear that the courts will expect disputing parties to explore the possibility of mediation – or risk being heavily penalised in costs, even if you succeed.

What do you see as the main advantages of taking the mediation route?

You will have experienced many cases where intense feelings have arisen. The persuasiveness of an apology should never be overlooked. It is not something which can be ordered by a court, but can be incorporated into a mediation settlement agreement. An experienced mediator can often break the impasse by impartially helping both sides resolve their issues. The statistics speak for themselves.

What if the Insured dies part way through a case?

The solicitor must notify us.  We will ask if the merits have been affected. If not, we will endorse the policy to show a change to the Insured. It will be likely to take the form of “A N Other as Personal Representative or Executor of the Estate of XX deceased”.  The fact that the solicitor will have to enter into a new CFA does not affect the policy.

Are we able to instruct our own choice of experts and Counsel?

Yes. Under delegated authority,  the solicitor can select appropriate experts and Counsel without obtaining our prior consent. We expect the experts’ fees to be checked first for reasonableness. We do not cover Counsel’s fees but expect a barrister of suitable experience to be instructed and to act under a CFA.

How many experts can we instruct?

You can instruct the reasonable number of experts from different disciplines as the case requires; we expect you to follow the advice of Counsel and your lead experts in deciding how many experts are necessary.

Are there any limits on experts’ fees?

Under our scheme, all disbursements have to be reasonably incurred and we expect the experts’ fees to be reasonable in comparison with their peers. If in any doubt, a quick referral by email to us can be made.

Can my client delay taking out ATE insurance? Why not wait to see if the other side will settle without the need to issue a claim and take the ATE insurance out when we issue?

This is because, as a case progresses, litigation insurers become less willing to insure cases because the risks involved become greater.

What criteria do Temple use to evaluate a law firm’s suitability for a delegated authority scheme?

At Temple we work with firms on a delegated authority basis for ATE Insurance. This is subject to the value of the case, a firm’s case volume, case performance history and ability to demonstrate their success and specialism in the relevant area of litigation.

Why does my client need litigation/ATE insurance if they are protected by QOCS?

QOCS does reduce the amount that your client will pay if they are unsuccessful in their case. However; there are such costs that will have to be paid, such as their own disbursements [including court fees and medical evidence etc]. In addition, if your client fails to beat a defendants part 36 offer, then the defendant can claims costs up to the sum awarded for damages.

Which types of clinical negligence do Temple cover?

At Temple we can provide ATE cover for all manner of clinical negligence meaning our underwriting team can comprehensively discuss and understand your needs. A non-exhaustive list of the types of clinical negligence disputes Temple provides cover for, are listed below:

  • Surgical negligence.
  • Misdiagnosis claims.
  • Pregnancy and birth injury claims.
  • Prescription and medication errors.
  • Cosmetic surgery negligence.
  • Dental negligence.
  • Opticians negligence.

Please do contact us to discuss any specific case should yours not fall within any of the above categories.

What does After The Event (ATE) insurance cover?

Qualified One-Way Costs Shifting (QOCS) was introduced to remove liability for opponents’ costs from the claimant in the event they lose their injury or clinical negligence case. It does not provide protection from failure to beat a ‘Part 36’ offer.

Our ATE insurance cover protects claimants from the liability to pay opponents’ costs from the date of the ‘Part 36’ offer up to and including the trial.

ATE insurance also pays one’s own disbursements that have been incurred as a result of having to pursue the claim such as Court fees and expert fees etc.

This means that more than just the risk of paying the other sides fees can be off set. Clients can also offset some of the risk in terms of their own capital.

Who pays for the ATE policy?

Since April 2013, the law on paying for insurance premiums was changed.
Previously premiums were fully paid for by the defendant. However, since the law was changed, some of the premium is paid for by the Defendant, this is known as ‘Premium a.’ Another element of the premium is now paid for from the client’s damages, this is typically referred to as ‘premium b.’

Key benefits of Temple’s clinical negligence ATE

ATE provides numerous benefits to clients wishing to pursue a legal action. These include, but are not limited to:

  • Cover of up to 250k.
  • Obtained via TOPS, avoiding wasted time and cost.
  • Fully deferred premium contingent upon success.
  • Premium not payable in the event of an unsuccessful claim.
  • Retrospective cover to the date of the retainer.
  • Competitively priced premium.
  • Claims can be pursued to their fullest extent.
  • Removes the risk of having to pay the opponents legal costs if the dispute is pursued unsuccessfully.
  • Can provide protection from interim costs orders.