Jonathan Wellington, Partner and Head of Clinical Negligence at Watkins & Gunn, reports on the important recent Clinical Negligence case of West –v- Stockport NHS Foundation Trust and Demouilpied –v- Stockport NHS Foundation Trust

The Court of Appeal has given judgment in the above cases on a very important issue of the recoverability of ATE Insurance Premiums in clinical negligence cases.  Very often victims of clinical negligence suffer catastrophic or life changing injuries and are reliant on a conditional fee agreement supported by a policy of insurance to enable them to bring claims for damages.

Since the introduction of ‘After the Event’ insurance premiums there has been great confusion and argument as to the levels of premiums that should be recoverable by successful Claimant’s.

In the above cases the Court of Appeal made it absolutely clear that ATE insurance and the recovery of an associated reasonable premium was vital to allow clinical negligence victims the ability to access justice. The Court was asked to consider how premiums should be recoverable and whether premiums were subject to a test of proportionality weighed against damages recovered and overall costs.  The Court of Appeal indicated that the Court should carry out an assessment of costs on a line by line basis to assess that such costs were reasonable.

It was argued by the Defendants that there should then be a reduction to consider the overall proportionality of costs.  However the Court of Appeal indicated that any reductions for proportionality should exclude those elements of costs which are properly regarded as unavoidable, such as court fees, the reasonable element of the ATE premium in clinical negligence cases and the like.  Specifically, therefore, if the ATE premium is assessed as reasonable, then it will not fall to be reduced by any further assessment of proportionality.

The judgment is a rare victory in the fight to access to justice for victims of medical accidents and will provide reassurance to Claimants; enabling them to pursue claims for damages after potentially life changing events.

Jonathan Wellington is a specialist Clinical Negligence lawyer – contact him for legal advice and support if you believe that you may have been the victim of negligent medical treatment – jwellington@watkinsandgunn.co.uk