FOCIS response to recovery of after the event (ATE) insurance premiums for expert reports in clinical negligence claims

The MOJ framework suggests recovery of premiums for expert reports only 'to get the claims off the ground' and is based upon the premise that a viable ATE insurance market will persist.

We have no evidence that such a market will persist and have not been made aware of any recent analysis involving the ATE providers as to their thinking on the issue of a viable market.

In addition we do not understand why insurance limited to 'initial reports' will give the security that isrequired to clients and funders (Banks etc.) to pursue claims where other (and greater) expert expenses are likely to be incurred as any case progresses i.e.Part 35 answers; finalisation of reports, attendance at conference and attrial. Where is the security for clients own disbursements beyond initial reports?

There is no point in providing forrecovery of a premium if recovery brings with it unworkable terms.

That would simply amount to adeception of the public.

It needs to be borne in mind thatthe quantum of many of the cases which would be the subject of these provisionsis very substantial indeed - life changing. The balance between favouring Defendant interests over Claimant must be considered in this light. These are nottrivial cases.

Answers to Questions

  • 1.1. No, we do not agree .The security required for clients covers all experts' fees as that is their exposure. The question seems to assume a split trial will be ordered by Court. It also assumes that quantum experts are all jointly instructed which is not the case.
  • 2.1. No, we do not agree. Why is there an arbitrary limit on the number of experts? Many cases require more than one expert on breach and causation in any event. We suggest that if any limit has to be imposed it is a limit which recognises one expert per specialism, subject to the Courts discretion in appropriate circumstances to be dealt with on detailed assessment.
  • 2.2. The Court already has power to disentitle a party from relying upon a particular expert and in recovering fees as part of the Courts general management powers. It is our view that there is no need to add another layer of management.
  • 2.3. This is a question that ought to properly be addressed to the Insurance underwriting/actuarial market. The recoverable premium should be set at the market rate by the market if one persists.
  • 2.4. Ditto re this question. It would be helpful if there were transparency as to how a commercial insurance premium is calculated, but this may be commercially sensitive and difficult to gauge in what may be a new market.
  • 2.5. We do not consider that expert fees need to be capped. There is already an existing framework within the Court system for assessing the reasonableness of expert fees by way of detailed assessment and lawyers have become familiar with what may be a market rate for particular types of experts and /or work they must do.
  • 3.1. And 3.2. See 2.3 and 2.4 above.
  • 4.1 We agree and indeed is explicit in relation to others areas of a premium that are not recoverable.
  • 4.2. This is the difficulty considered in 2.3, 2.4 and 3.1.
  • 5.1. We do not agree for the reasons set out in 1.1 and 2.1 above.
  • 6.1. And 6.2. We do not agree. Expert reports are required before the letter of claim or other meaningful reporting to the proposed Defendant. The client would therefore need the security of the ATE product before an expert is instructed.

Our understanding is that nothing in the current recommendations or plans is designed to overturn the law or indeed existing well established principles of insurance... It has been established for example that it is appropriate to enter into a CFA at the outset of the case. To comply with the SRA Code of Conduct one would wish to deal with all aspects of funding and costs advice together which means if one is entering into a CFA then one would want to deal with ATE at the same time.

Established insurance principles mean the many paying for the few. A government encouraged cherry picking wouldlead to an imbalance of risk. By definition the insurer would be indemnifyingonly the most risky cases; thus increasing premiums.

It is often not possible to identify the Defendant until the expert report (or more than one) has been obtained.

It would be inappropriate toidentify the expert to the Defendant until the Claimant knew he would be relying upon him. There should similarly not be any requirement to instruct liability and causation experts on a joint basis. This would run contrary tothe entire development of the clinical negligence specialism over the last 20years. Experts jointly instructed become the judges of the issues rather thanthe Court. The arguments have been rehearsed many times in the past.

The instruction of other (quantum)experts on a joint basis is already provided for within the Courts managementsystem and rules.

Defamation cases are not reliant upon expert reports and therefore the analogy is flawed.

The proposition of the "D preparedto settle" is ambiguous in a case where, for example, you have 2 'tortfeasors'or a case in which the allegations are pleaded in the alternative with differing causative outcomes.

What is it that the "D is preparedto settle"? - The question belies a failure to understand the time-scale involved in the investigation of a complex CN claim and the very nature ofthose claims. Those time-scales equally apply to Defendants - the prospect of a 42 day notice period is wrong-headed.

How would a time requirement for a response sit with the pre-action protocol period?

We do not support the suggestionthat any advance notice should therefore be given nor should it be a condition precedent to the taking out of appropriate ATE.

Requirements to identify expertsshould not run counter to issues of privilege.

The development of these rulesshould not create an uneven playing field as between the Claimant and Defendantand the Claimant should, as now, be free (subject to subsequent scrutiny forreasonableness by the Court) to investigate and develop his liability case.

Finally we wish to express concern as to:

  1. The nature of the distribution list referred to in the letter which in our view plainly leans to the Defendants representative bodies (even AvMA has been omitted) and some main ATE insurers we understand only received the consultation letter third hand and late!
  2. The length of time available for response

The full response is available to download:

FOCIS response to recovery of after the event (ATE) insurance premiums for expert reports in clinical negligence claims


The Forum of Complex InjurySolicitors

FOCIS members act for seriously injured claimants with complex personal injury and clinical negligence claims,including group actions. The objectives of FOCIS are to:-

  1. Promote high standards of representation of claimant personal injury and medical negligence clients,
  2. Share knowledge and information among members of the Forum,
  3. Further better understanding in the wider community of issues which arise for those who suffer serious injury,
  4. Use members' expertise to promote improvements to the legal process and to inform debate,
  5. Develop fellowship among members. 

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