Kerry Underwood


with 4 comments

ATE and security for costs


In The RBS Rights Issue Litigation [2017] EWHC 463 (Ch)


the court ordered the claimants to give details of funders under the court’s inherent jurisdiction ancillary to CPR 25.14.


An application for security might face difficulty as the trial was imminent, but the court could not say it was so unrealistic or hopeless that the defendants should not have disclosure.


The court refused to order that details of ATE insurance be given.


This was sought under its case management powers and the judge concluded that the documents were not needed for case management purposes.


He was also concerned it could lead to further satellite litigation.


However, he expressed some reservations about whether there was sufficient funding and, in light of that, suggested there should be more transparency about the ATE insurance.


The decision provides detailed guidance regarding such applications, including that:


  • It was not a condition of making an order for disclosure of funders ancillary to CPR 25.14, that the applicant had unequivocally determined to bring an application for security once details were revealed. However, the applicant must, at least, demonstrate that its putative application for security was a real possibility and had realistic grounds, and was not being suggested simply for some tactical purpose.


  • In an appropriate case, the court’s case management powers under CPR 3.1 did extend to requiring disclosure of an ATE policy when this was necessary to enable the court to exercise its case management function. However, whether a party will be able to enforce damages and costs orders is not a matter which affects case management. Generally, an ATE policy, which does not impact on the issues in the case, will not be relevant. But there may be exceptions, for example, where the ATE policy has been deployed in the proceedings to influence or impact on a decision. That may be especially likely in group litigation.


  • It was unlikely that privilege attached to an ATE policy.


ATE and Third Party Rights


In Denso Manufacturing UK Ltd v Great Lakes Reinsurance (UK) plc [2017] EWHC 391 (Comm)


the Commercial Court, part of the High Court but shortly to be the Business and Property Court, held that After-the-Event insurers were entitled to deny liability to a third party on the basis that their own insured had breached the policy.


Following litigation between the insured and the third party, the insured was ordered to pay some of the third party’s costs, but went into liquidation without making payment.


Relying on the statutory scheme in the Third Parties (Rights against Insurers) Act 1930, the third party commenced proceedings directly against the insurers, who denied liability, alleging that the insured had breached a number of policy conditions precedent to liability relating to, among other things, obligations to co-operate in any claim and provide information.


The decision is an interesting example of the court’s approach to the interpretation of conditions in an insurance contract. In particular, although the policy included a general “Due Observance” condition, which sought to create conditions precedent, the court examined each of the individual conditions in order to determine whether they could be construed as conditions precedent.


The decision is also a reminder that, for the purpose of the 1930 Act, the transfer of rights to a third party is subject to the defences available to insurers against the insured.


Although, under the Third Parties (Rights against Insurers) Act 2010, a third party is also in no better position under the insurance contract than the insured, and, generally, an insurer is able to raise any defence against the third party that would have been available to it against an insured, there are some exceptions.


For example, an insurer cannot allege non-performance by the insured where the third party has fulfilled the relevant policy conditions.


In the circumstances, had the 2010 Act applied, it might have been possible for the third party, upon the insured’s insolvency, to comply with the policy conditions by promptly sending, directly to insurers, all communications relating to settlement offers and the detailed assessment proceedings.


However, in practice, this will only be possible where the third party has succeeded in obtaining the relevant policy information from the insured or its agents in time to enable it to comply with any conditions.



Written by kerryunderwood

March 22, 2017 at 6:43 am

Posted in Uncategorized

4 Responses

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  1. Hi Kerry,

    Thank you for your informative posts.

    Do you have any posts on BTE Insurance and choice of solicitor before proceedings are issued. My client has BTE which only covers her if the Insurers use their own solicitors.

    Kind regards,

    Arfan Aslam

    07957340 653


    Arfan Aslam

    March 22, 2017 at 10:41 am

    • Hi Arfan

      You will see in my blog THIRD PARTY CAPTURE: BTE INSURERS: PRACTICAL ADVICE I cover this exact point.

      “The client/injured person has legal expenses insurance, often known as Before-the-Event insurance, and the insurance company seeks to push the client to their panel solicitors.”

      The client still has full freedom of choice of solicitor but the legal expenses insurance company is free to impose reasonable terms on those solicitors.

      Furthermore it is illegal for the BTE Insurer to prevent the client from instructing their own solicitor.

      In another one of my blogs BTE AND THE RIGHT TO CHOOSE ONE’S OWN LAWYER in the cases of Massar v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV (Case C-460/14) and Buyuktipi v Achmea Schadeverzekeringen NV and Stichting Achmea Rechtsbijstand (Case C-5/15) (7 April 2016)

      the European Court of Justice has ruled that it is obligatory for a client to have the right to choose a lawyer and that the ECJ will protect the interest of the insured.

      Kind regards



      March 22, 2017 at 4:57 pm

      • Hi Kerry

        Is it incumbent upon the claimant, to serve notice of the existence of an ATE policy being in force, upon the defendant? If so, when should this happen?




        August 19, 2020 at 3:13 pm

      • Laurence

        Since April 2013 there is no longer any obligation to notify your opponent of any recoverable additional liability, including the success fee and the After-the-Event insurance policy.

        This is the case even though there were a large number of areas where the success fee remained recoverable after April 2013.

        These included:

        – Defamation claims;

        – breach of privacy claims;

        – all insolvency litigation;

        – mesothelioma claims.

        Nevertheless, the rules changed for everything.

        Recoverability now remains in just two areas, that is an element of the clinical negligence After-the-Event insurance premium, and in relation to mesothelioma claims both the success fee and the After-the-Event insurance premium remain recoverable.

        There is no doubt at all that there is now no requirement to notify.

        Having said that, my firm view is that it is good practice to notify the other side, and nothing at all is lost by doing so, and indeed something is gained.

        Firstly, although there is no requirement to notify, the court still has a very wide discretion on costs generally and would be free, in my view, to disallow recoverability on the ground that the other party continued the case in ignorance of the existence of recoverability.

        Secondly, and perhaps more significantly generally, its strengthens your client’s position if the other side know that you are acting under a Conditional Fee Agreement, which is of course a different thing from the After-the-Event insurance premium.

        In personal injury claims it is normally taken as a given that the case is being conducted on a no-win no-fee basis, but that is not the case in other types of litigation.

        For example, much of the commercial litigation which my firm does is carried out on a no-win lower-fee basis, and I always notify the other side that we are acting under a Conditional Fee Agreement.

        The sub-text of that is that I think it is a good claim; otherwise I would not have taken it on a conditional fee basis.



        August 20, 2020 at 4:42 pm

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