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Successful appeal of reduction to block-rated ATE premium involving the issue of comparator premium evidence


Matt Waszak (instructed by Kellie Barnes from A&M Bacon Ltd) acted for the successful Appellant in an appeal of a reduction to a pre-LASPO block-rated ATE premium made at detailed assessment.  Judgment in Kelly v Bellway Plc, handed down by His Honour Judge Gosnell DCJ in the County Court at Leeds on 12.04.19, can be accessed here.

At detailed assessment, District Judge Shepherd reduced a block-rated ATE premium (which had been taken out to fund a personal injury claim arising from a tripping accident) from £20,698.83 (including Insurance Premium Tax) to £2,115.00 (also including Insurance Premium Tax). In doing so, she relied on evidence of ‘comparator’ ATE premiums and a 2011 Research Report from the University of Lincoln, titled Excessive and Disproportionate Costs in Litigation, exhibited to a witness statement provided by the Defendant. At detailed assessment, District Judge Shepherd found that:

·         The Claimant had failed to show she acted reasonably in the selection of the ATE policy.

·         She was not satisfied that the Claimant had done all that was reasonably required in the selection of the policy.

·         It was appropriate to reduce the ATE premium because appropriate steps were not taken at the inception of the ATE policy.

·         The District Judge could rely on the evidence of ‘comparator’ premiums exhibited to the witness statement provided by the Defendant.

In a judgment which contains a lengthy exegesis of the law on ATE premium recovery, His Honour Judge Gosnell DCJ allowed the appeal. In doing so, he held that:

·         The District Judge fell into error in her consideration of the adequacy of the Defendant’s evidence [44] and in finding that it was reasonable to place reliance on the comparator evidence provided [49].

·         The comparator premiums provided by the Defendant “were not truly comparable” [51].

·         Three of the comparators the Defendant sought to rely upon were policies with a single premium, which,  relying on paragraph 111 of Brooke LJ’s judgment in Rogers v Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134, did not bear legitimate comparison to the three-staged premium in this case [49].

·         In relation to the remaining comparator, HHJ Gosnell DCJ found at [50] that: “This leaves only one comparable policy which may be relevant…..[described as] a staged public liability personal injury policy with a premium of £2,115 if the claim concludes post proceedings on the fast track and £4,335 on the multi track.  I have to say that the redacted policy schedule only describes the accident type as “other” and does not make clear what happens if a fast track claim goes to trial. No details are given about the facts of the claim which the policy covered nor what is covered or the limits of indemnity. The main problem with this type of evidence is that there is no evidence that the policy in question could have been offered to and accepted by the Appellant. For commercial reasons some ATE insurers only offer policies to solicitors on their panel who are bound by certain service standards, including the need to place all business with that insurer (as the solicitor in Rogers was obliged to do). Insurers may also refuse to write business in relation to particular types of claims. The fact that a claimant has secured ATE insurance for their own claim against the Respondent’s insurers in this case is not evidence that the Appellant in this case could have secured the same insurance on the same terms” (emphasis added).

·         A careful assessment of the methodology used by the ATE insurer would have shown that the premium was reasonable, at least reasonable by the standards set out in Rogers [51].




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