Clinical Negligence ATE Insurance – FAQ’s
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.
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.
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.
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.
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.
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.
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.
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.
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.
This is because, as a case progresses, litigation insurers become less willing to insure cases because the risks involved become greater.
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.
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.
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.
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.
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.’
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.