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Master Leonard dismisses reasonableness and proportionality challenge to post-LASPO ATE premium in clinical negligence case

23rd August 2017

Matt Waszak, instructed by Irwin Mitchell, appeared for the claimant in successfully resisting a challenge to the reasonableness and proportionality of a post-LASPO ATE premium. Master Leonard handed down judgment on Monday in the case of Mitchell v Gilling-Smith [2017] EWHC B18 (Costs). The judgment can be read below.

The ATE premium was incurred in the claimant’s claim for the negligent treatment of an ovarian endometrioma, which settled for £200,000. At detailed assessment, the defendant argued that the premium was not reasonably incurred; was not reasonable in amount; and was disproportionate under CPR 44.3(5). The Master dismissed the defendant’s challenges and allowed the premium in full.

In particular:
·         In relation to the application of the new proportionality test to additional liabilities, the Master held that, while awaiting guidance from the Court of Appeal, it was not necessary to set out a considered view of his own on the issue. That was because even if the proportionality of the insurance premium could be considered in isolation, the premium could not be said to be disproportionate in the context of a clinical negligence claim which settled for £200,000.
·         It was reasonable for the claimant to have taken out the ATE policy as soon as it was clear that the case was going to proceed. Master Leonard rejected the argument that it was incumbent upon the claimant’s solicitors to wait until a point at which they had a clear understanding of the level of recoverable ATE which was going to be required by the claimant.
·         The Master dismissed the challenge to the reasonableness of the premium, finding that there was no real evidence to support the proposition that suitable, less expensive alternative policies were available to the claimant. The Master followed the approaches of Simon J (as he then was) in Kris Motor Spares v Fox Williams LLP [2010] EWHC (1008) QB and Langstaff J in Pollard v University Hospitals of North Midlands NHS Trust [2017] 1 Costs LR 45.

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