Cost of ATE challenges in clinical negligence cases

There have been many ‘landmark’ judgments shaping the use of After-the-Event insurance to fund litigation. Whatever the reform, courts always seem to be the first recourse for any disputes over the details.
Lately, however, judgments against the NHS Litigation Authority (NHSLA) have been so frequently challenged that it’s difficult to see any progress being made towards a better system of agreeing compensation for medical harm. 

The scale of the problem facing the NHSLA is difficult to overstate. The £56 billion provision for current and future claims is a staggering figure and, with trusts facing unbearable financial pressures, the recent decline in incidents seems unlikely to continue. 

So the NHSLA may be right to challenge aspects of new ATE policies, on occasion. There comes a point, however, when such challenges serve only to frustrate and delay.

Taking claims back into court is expensive and time-consuming, but it seems the only path that losing defendants are currently prepared to follow. Any meagre discount achieved at a costs hearing is far outweighed by the delay and cost racked up on all sides.

A year ago, former NHSLA Chief Executive Catherine Dixon wrote a powerful piece for the Law Society Gazette. Having just become Chief Executive of the Law Society, she offered a unique insight into the challenges facing the NHSLA and how claimant costs contribute to them. While accepting that she had witnessed instances of inappropriately high costs, Dixon pointed out that “…the vast majority of costs submitted were appropriate for the work done.”

She went on to suggest that, rather than targeting claimant solicitors, greater eff orts should be made to reduce the incidence of negligent care and the “indescribable misery” that too frequently results.  Unfortunately, challenging the minutiae of ATE policies, premium proportionality, and the solicitor bill of costs is now so common that clinical negligence cases are taking, on average, over 12 months longer to settle.

This will inevitably impact the very premiums the NHSLA is trying to address. If the cost of claims is driven up, then so premiums must increase to cover them.

ATE insurance may not be the perfect mechanism for giving victims of clinical negligence access to justice. But the absence of legal aid makes some form of insurance solution essential. Instability created by frequent legislative reform and indiscriminate legal challenges only makes the whole system less stable and thus more expensive.

For most of those injured in medical care, ATE insurance now offers their only hope of pursuing what are often difficult and expensive cases. As such, it needs to be understood, nurtured and preserved, rather than attacked at every opportunity.