ATE insurance in competition litigation: why the evidence behind the policy increasingly matters
The Competition Appeal Tribunal’s approach to funding and insurance arrangements in collective proceedings is evolving. For claimant law firms, litigation funders and class representatives, securing adequate after-the-event (ATE) insurance remains essential. Increasingly, however, attention is turning to the arrangements underpinning that cover, how they were procured and whether they can withstand scrutiny.
Recent judgments suggest that it is no longer sufficient simply to demonstrate that an ATE policy is in place. Parties should also be prepared to explain the suitability, cost and structure of their insurance arrangements, supported by an appropriate evidential record.
For those involved in substantial competition litigation, this has important implications for how ATE insurance is arranged and managed.
The CAT’s decision in Riefa v Apple and Amazon [2025] CAT 5 highlighted the importance of a proposed class representative exercising informed and independent oversight of the arrangements supporting collective proceedings.
The Tribunal identified shortcomings in the original ATE policy, including its initial failure to cover all proposed defendants and aspects of the claim. Although those deficiencies were subsequently remedied, they contributed to the Tribunal’s wider concerns about the proposed class representative’s oversight of the litigation.
More recently, Waterside Class Limited v Mowi ASA & Ors [2026] CAT 32 brought the economics of ATE insurance into sharper focus.
In assessing the proposed collective proceedings, the Tribunal considered the substantial litigation budget, including the ATE deposit premium, against the anticipated benefits to class members.
The Tribunal was also critical that significant contingent costs, including potential additional ATE premiums, had not been presented in the original certification application and only emerged following questions at the hearing.
Taken together, these decisions reinforce the importance of ensuring that insurance arrangements are appropriate for the proceedings and that their terms and economic implications can be properly explained.
The evolving approach also raises important questions about disclosure.
Historically, certain commercially sensitive elements of ATE arrangements, particularly premium information, have benefited from protection against disclosure to defendants.
However, the extent of disclosure remains context-dependent. The Tribunal must be able to examine the arrangements supporting collective proceedings, while recognising that disclosure of commercially sensitive insurance information to an opposing party may create an unfair tactical advantage.
The distinction between information required by the Tribunal and information disclosed to defendants therefore remains important.
Nevertheless, claimant teams should anticipate that the adequacy, structure and cost of their insurance arrangements may be scrutinised, potentially at different stages of the proceedings.
The practical implication is that the evidence supporting an ATE placement should be considered from the outset, rather than assembled retrospectively in response to a challenge.
For claimant law firms and class representatives, the objective should be to demonstrate that the insurance arrangements were selected through an appropriate process, provide suitable protection and have terms that can be explained and justified.
This is particularly important in substantial competition cases involving multiple defendants, significant adverse-costs exposure and potentially complex premium structures.
A well-documented placement process can assist the legal team in responding to questions about the insurance arrangements and provide a foundation for addressing subsequent developments in the proceedings.
It also helps ensure that the class representative understands the protection being provided, the financial implications of the arrangements and any material limitations in the cover.
Importantly, maintaining an appropriate evidential record should not be confused with an obligation to disclose every aspect of the insurance procurement process or commercially sensitive information to defendants. The scope of disclosure remains a matter for the applicable legal requirements and the Tribunal’s directions.
At TheJudge, we recognise that the role of an experienced ATE broker in substantial competition litigation extends beyond securing the required level of insurance capacity.
Never has the independence and expertise of an experienced ATE broker been more relevant. An independently conducted and properly documented insurance placement can provide important evidence that the arrangements have been objectively assessed, appropriately structured and secured on commercially justifiable terms, helping ensure that the supporting evidential record can withstand scrutiny from the Tribunal and, where applicable, defendants.
We are working with our clients and their legal teams to ensure that the arrangements supporting their litigation are not only commercially appropriate but are also capable of being properly evidenced and explained should questions arise during certification or at a later stage.
That means considering the potential evidential and disclosure requirements as part of the placement process, rather than treating them as separate issues to be addressed once proceedings are underway.
Our objective is to help clients anticipate the Tribunal’s evolving expectations while protecting their commercial interests and maintaining access to substantial insurance capacity on appropriate terms.
TheJudge regularly arranges substantial ATE insurance capacity to support law firms pursuing competition cases, with indemnities regularly exceeding £20 million. Our experience in placing complex, high-value litigation risks enables us to support clients throughout the proceedings, from the initial placement through to the conclusion of the litigation.
KEY CONTACTS
ROBERT WARNER, DIRECTOR
MATTHEW AMEY, DIRECTOR