Unless you’ve been hiding away for the past couple of years, you’ll be aware that the LASPO Act has finally come into effect and its implementation has inevitably substantially altered the landscape for clinical negligence ATE insurance.
Litigation insurance premiums in clin neg cases remain recoverable but only to the extent that the premium relates to expert reports on liability and causation. The balance of the premium for other disbursements and to cover the risk of paying adverse costs as a result of failing to beat a Part 36 offer (in light of the introduction of Qualified One-Way Costs-Shifting or QOCS) is irrecoverable; as such, it will fall to be paid by the client or indeed the law firm, depending on the arrangement in place.
Despite these changes, which some thought might mark the end of clinical negligence ATE insurance for good, TheJudge is happy to confirm that a number of insurers remain in the clinical negligence ATE insurance market and we now have details of newly launched insurance offerings, catering for the new costs regime. It may surprise some clinical negligence practitioners to know that the products now available vary enormously in structure, price and limits of cover. Perhaps this is down to the uncertainty over the level of premium which will be recoverable going forward, or perhaps it is simply because the new products are in their infancy and will inevitably grow and develop as time moves on.
The common features of the new policies and schemes include deferred and contingent upon success (or self-insured) premiums, reassuring solicitors that neither they nor their clients will have to find large sums upfront to pay the premium.
The next interesting step will be to see what proportion of these new model premiums will be recovered from the opponent and how much clients therefore have to pay from the recovered damages, upon a successful conclusion. No doubt many insurers will be watching the developments in this area with bated breath.
If you would like more information about the newly launched ATE products for clinical negligence, please do not hesitate to contact Katherine Hemsley or call us on 0845 257 6058.