Specialist Costs Lawyers - Trusted advisors to Central and Local Government
Defendants, over the years, have presented several clever arguments to avoid paying for After The Event insurance (ATE). In the case of Dance v East Kent University Hospital [2022] the Defendants tried to avoid paying the ATE premium, following acceptance of the Claimant’s Part 36 Offer. Costs Judge Leonard, during his assessment of the Claimant’s costs of a clinical negligence claim, was asked to consider two ingenious arguments from the Defendants.
The Defendants argued that; acceptance of a Part 36 Offer did not constitute an order for costs; this point was substantiated by Cartwright v Venduct Engineering Limited, the Court of Appeal confirmed that a Part 36 offer or a Tomlin Order did not amount to an ‘order for costs‘. The Defendant’s second argument was that even if there is an order for costs, the ATE premium will be only recoverable if the costs order makes specific reference to that effect. The Defendant referred to an editorial note at paragraph 48.0.4 of Sweet & Maxwell’s “Civil Procedure”, also known as ‘the White Book’. This argument centred around whether the term “costs” could be given two different meanings.
Costs Judge Leonard stated, in reference to the first argument, that, “It is not in issue that the Claimant accepted the first Defendant’s Part 36 offer within the period set by the first Defendant for acceptance. His right to recover costs arises, accordingly, under 36.13(1) of the Civil Procedure Rules (“CPR”). CPR 44.9(1)(b) provides that in those circumstances, a costs order in the Claimant’s favour will be deemed to have been made on the standard basis.” Therefore, this argument was unsuccessful and was not further pursued by the Defendant.
In relation to the second argument, Costs Judge Leonard stated that he “admired the ingenuity of the Defendant’s submissions” but he “did not find them persuasive”, even though this meant he disagreed with the findings reached by the author of the note at 48.0.4 to the White Book. The Costs Judge found that the ATE premiums do fall within the CPR 44.1(1) definition of “costs” and thus a costs order will permit a Claimant to recover an ATE premium unless that order makes specific reference to the contrary. Consequently, the Claimant’s costs in relation to the ATE premium were allowed in full.
ATE premiums are recoverable in cases where there is a deemed Costs Order unless the Order expressly states otherwise.
If you require any assistance with your legal costs requirements, please do get in touch with the team on 01733 350 880, or by email mail@aandmbacon.co.uk. For more information please do visit our website www.aandmbacon.co.uk.
Published 20 April 2022
Use our handy news filters to find what you’re looking for quickly. Search by keyword, category or tag.
Need assistance? Let’s have a chat!
A&M Bacon Limited are part of the Frenkel Topping Group. Our dedicated team of Dispute Resolution Legal Costs Professionals have moved to Partners in Costs Dispute Resolution team. To continue to view A&M Bacon’s content, including our videos and blogs please click the following link.
close popup
To be redirected to Partners in Costs, and to view our most up to date content please follow this link.
A&M Bacon Limited’s focus is to concentrate on Court of Protection legal costs.