AR v Barts Health NHS Trust, Claim Number HQ14X01928
The ability to recoup ATE premiums from paying parties in litigation on the whole ended with effect from the 1st April 2013 in relation to policies incepted on or after that date.
The Recovery of ATE Premiums in Clinical Negligence Proceedings (no. 2) Regulations 2013 (the 2013 regulations) provides that the amount of the premium that may be required to be paid under a costs order shall not exceed that part of the premium which relates to the risk of having to pay for a report or reports relating to breach of duty or causation.
At the same time amendments were made to the Overriding Objective which placed substantial weight on conducting matters at proportionate cost. In fact, a far stricter test of proportionality now applies as laid out in CPR 44.3.
The new test of proportionality replaced the pre April 2013 test of proportionality as set out in Lownds v Home Office [2002] 1 WLR 2450.
In Rogers v Merthyr Tydfil BC [2007] 1 WLR 808 the court considered that where a court concluded it was ‘necessary’ to incur a premium this meant that the premium should be commissioned at a proportionate expense.
As noted by Master Gordon Saker in BNM V MGN Limited [2016] EWCH B13, even if an ATE premium cannot be found to be unreasonable or unnecessary, the same may still be disproportionate.
The underlying issue with ATE premiums was therefore proportionality; is it proportionate to incur the expense of the particular premium during the course these proceedings?
Master James however has made the point that before considering proportionality, it goes without saying that calculation of the ATE premium must be sound.
In AR v Barts Health NHS Trust, Claim Number HQ14X01928, a clinical negligence matter, the recovery of the ATE premium was rejected by Master James in the SCCO in view of the fact that premium was miscalculated.
This highlights the onus on the Claimant to ensure calculation of the ATE premium is accurate.
Whilst calculations of ATE premiums are not a new area of contention, this is yet another area that advocates need to be fully briefed on when proceeding to detailed assessment.