CLINICAL NEGLIGENCE AND ATE RECOVERABILITY
On 24 January 2013 the Recoverability of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013 were laid before Parliament and come into force on 1 April 2013 – click here.
By Paragraph 2 it provides that a court may make a costs order in relation to an ATE premium, or indeed a BTE premium, incurred in relation to experts’ reports, but Paragraph 2(2) provides that such a costs order may not require payment if
(a) the report was not in the event obtained;
(b) the report did not relate to liability or causation; or
(c) the cost of the report is not allowed under the costs order.
There is no limit to the number of reports, but if the court has not ordered the defendant to pay the cost of the report, then the insurance premium in relation to that report is not recoverable, so, for example, you cannot recover the premium in relation to a report that you choose not to use.
The report must relate to liability or causation, but can cover other matters, typically quantum, as well.
Only that part of the premium dealing with reports, not giving evidence, answering questions, experts’ meetings etc, is covered.
All of this is a huge improvement on the issues raised in the consultation paper. In particular out go:
– any limit on the number of reports;
– any limit on the costs of those reports;
– any limit on the ATE premium;
– any requirement to give notice to the defendant;
– any restriction on a liability/causation report also dealing with quantum.
A full analysis of all aspects of the abolition of recoverability, including in relation to clinical negligence, appears in my blog AFTER-THE-EVENT INSURANCE – ABOLITION OF RECOVERY – click here.