Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. It was reasonable for claimants and lawyers to agree insurance and conditional fee arrangements at a very early stage, and before hearing from the defendant as to his intentions. Even the simplest cases involved a risk of the claim failing for some reason, and it could be appropriate and sensible to agree a success uplift rate at the outset. In modest and straightforward cases the maximum uplift allowed should be 20 per cent. The costs award was reduced accordingly.
There is no presumption that an ATE insurance premium is reasonable, unless the contrary is shown: ‘We do not think it correct to start with Master O’Hare’s presumption. When considering whether a premium is reasonable the court must have regard to such evidence as there is, or knowledge that experience has provided, of the relationship between the premium and the risk and also the cost of alternative cover available. As time progresses this task should become easier.’
Lord Justice Brooke, Lord Woolf, Lord Chief Justice of England and Wales Lord Phillips, Master of the Rolls
Times 18-Jul-2001, Gazette 13-Sep-2001, [2001] EWCA Civ 1117, [2001] 1 WLR 2112, [2001] 2 Costs LR 163, [2001] Lloyds Rep IR 743, [2001] 3 All ER 833, [2001] PIQR P32
Bailii
Access to Justice Act 1999 29
England and Wales
Citing:
See Also – Callery v Gray (No 2) CA 31-Jul-2001
A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be . .
Cited by:
Cited – Crosbie v Munroe, Motor Insurer’s Bureau CA 14-Mar-2003
The claim had been settled before action, and costs only proceedings had been instigated. He appealed a decision as to the award of costs in that case. The question was whether the phrase ‘the proceedings which gave rise to the assessment . .
Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Cited – Atack v Lee and Another CA 16-Dec-2004
Defendant insurers had challenged conditional fee agreements involving a two stage success fee. Both cases took place before limitations were introduced by Callery v Gray.
Held: It would be wrong to apply Callery v Gray retrospectively. A two . .
See Also – Callery v Gray (No 2) CA 31-Jul-2001
A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be . .
Appeal from – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .
Cited – Campbell v MGN Ltd (No 2) HL 20-Oct-2005
The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed . .
Cited – C (acting by her litigation friend JF) v W CA 19-Dec-2008
The court considered the proper basis for a success fee payable on a conditional fee agreement where, when signed, the defendant had already admitted liability. The claim was by a woman after being injured in a car driven by her brother. By the time . .
Cited – Kris Motor Spares Ltd v Fox Williams Llp QBD 12-May-2010
The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.
Costs, Personal Injury, Legal Professions
Leading Case
Updated: 09 November 2021; Ref: scu.78838