7th July 2016
Richard Boyle (instructed by Faith Cosgrove of A & M Bacon) appeared in an appeal before HHJ Walden-Smith, sitting with DJ Lethem as an assessor. The judge allowed the appeal against Master Gordon-Saker (as he was then) in which the master had made a “broad brush” reduction of an ATE premium.
The judge stated that the master had been wrong to consider the reasonableness of the premium and had failed to follow the Court of Appeal’s decision in Rogers v Methyr Tydfil County Borough Council  EWCA Civ 1134. She held that a costs master or district judge does not have information about the entire insurance book or calculations that underpin that book and is in no position to regulate the appropriate level of premium. She held that the master had fallen in to error by considering the premium against the individual case rather than the entire basket of risk to which the insurer was exposed.
The master had held that Rogers did not prevent him from making a broad brush assessment of the reasonableness of the ATE premium and relied on the authorities of Redwing Construction Ltd v Charles Wishart  EWHC 19 (TCC) and Kelly v Blackhorse Ltd (27 September 2013). On appeal, the judge held that the master had not followed the binding authority of Rogers which warned against the use of a broad brush approach of the reasonableness of an ATE premium. The judge found that Redwing should have been distinguished because it involved a summary assessment of costs and there was no evidence in that case of how the ATE premium had been calculated. The judge found that Kelly was only persuasive but could be distinguished because it involved a single stage premium, unlike the instant case, and no evidence had been produced of how that ATE premium had been calculated. The judge found that the correct method to challenge the level of an ATE premium is through adducing evidence to show that the premium is unreasonable (e.g. evidence of other premiums), as set out in Kris Motor Spares Ltd v Fox Williams LLP  EWHC 1008. No evidence was produced in the instant case and the appeal was allowed and the ATE premium awarded in full.