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, adequate protection against adverse costs remains essential. Increasingly, attention is turning to the arrangements underpinning that protection: whether the cover suits the claim, how it was procured and whether its terms and cost can withstand scrutiny.
Recent judgments suggest that it is no longer sufficient simply to demonstrate that an ATE policy is in place. Claimant teams should also be prepared to explain the suitability, cost and structure of their insurance arrangements, supported by an appropriate evidential record.
The CAT’s decision in Christine Riefa Class Representative Limited v Apple Inc & Others [2025] CAT 5 highlighted the importance of a proposed class representative exercising informed and independent oversight of the arrangements supporting collective proceedings.
The original ATE policy failed to cover all the proposed defendants and all aspects of the claim. Those deficiencies were remedied before the certification hearing, but the Tribunal viewed them alongside wider concerns about the proposed class representative’s oversight of the litigation. On a cumulative assessment, it refused to authorise the representative.
More recently, Waterside Class Limited v Mowi ASA & Others [2026] CAT 32 brought the economics of ATE insurance into sharper focus as part of the Tribunal’s assessment of the proposed proceedings as a whole. The litigation budget identified approximately £15.75 million in costs, with an additional ATE deposit premium of £5.264 million. The Tribunal considered those costs against the anticipated benefits to class members.
Following questions at the hearing, the proposed class representative disclosed further contingent costs that had not been set out in the original budget. They included potential additional ATE premiums of up to £19.4 million. The Tribunal said it was wrong, and potentially misleading, not to present those sums alongside the other legal costs in the certification application.
The Tribunal declined to certify the proceedings as then formulated, but did not strike out the claim and invited the representative to consider a revised application. Taken together, Riefa and Waterside reinforce the importance of ensuring that insurance arrangements suit the proceedings and that their full economic implications can be properly explained.
This scrutiny also raises questions about disclosure. Commercially sensitive elements of ATE arrangements, particularly premium information, have sometimes been protected from disclosure to defendants. In Kent v Apple [2021] CAT 37 and Coll v Alphabet [2022] CAT 6, the Tribunal allowed particular premium figures to remain redacted because their disclosure might give the opposing party an unfair tactical advantage.
That protection should not be assumed in every case. The Tribunal must be able to examine the arrangements supporting collective proceedings, and any request to keep information confidential needs to be justified. The distinction between information required by the Tribunal and information disclosed to defendants therefore remains important.
Claimant teams should anticipate questions about the adequacy, structure and cost of their insurance, potentially at different stages of the proceedings. The evidence supporting an ATE placement is best 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 help the legal team respond to questions about the insurance and provide a foundation for addressing developments later 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.
Maintaining that record should not be confused with an obligation to disclose every aspect of the 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.
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ROBERT WARNER, DIRECTOR
MATTHEW AMEY, DIRECTOR