Angela Ring v Michelle Panes (SCCO)
The defendant refused to pay the ATE premium on the grounds that the claimant had the benefit of BTE cover, and so the ATE premium was not reasonably incurred.
The claimant’s solicitors had only provided limited information to the defendant, within their Part 18 answers, regarding the existence of BTE, despite the fact that the defendant had been able to establish that with a single telephone call.
Costs Officer Martin found that the ATE premium was not reasonably incurred and he disallowed it. The claimant was ordered to pay our costs summarily assessed in the sum of £1291.67.
This was a detailed assessment at the SCCO before Costs Officer Martin. The issue before the court was the recoverability of an ATE premium. The remainder of the costs had been agreed under PCR.
The defendant’s insurer had refused to pay the ATE premium on the basis that they had been able to establish within a single telephone call that the claimant had the benefit of BTE. Notwithstanding this however, the claimant obtained an ATE policy in the sum of £393.75. Appropriate Notice of Funding was served.
The claimant’s Bill stated that the first attendance with the client was 05/05/2009 and “further to the initial interview the necessary enquiries were undertaken as to BTE insurance however there was no suitable BTE insurance with which to fund the claim.” We served a Part 18 request seeking specific details as to what enquiries were made, when they were made, and what advice had been given to the claimant.
The claimant’s solicitors declined to answer, relying on Hutchings v The British Transport Police Authority [2006] EWHC 90064 (Costs) and only confirmed that the claimant had had insurance cover. Their answer to the question: Does the claimant have any legal expenses insurance? was that there was no suitable insurance. They also relied on Peel v Beasley [2007] EWHC 90094 (Costs) as authority for the recoverability of an ATE premium in a situation where the claimant has chosen to use solicitors through their union membership.
At the assessment hearing we stated that he was under the assumption that there was no dispute that the claimant had the benefit of BTE cover. The claimant’s representative stated that he had no knowledge of any BTE policy and that there was no proof that there was such policy.
Accordingly, we argued that the ATE premium was not reasonably incurred and that the claimant’s solicitors were not entitled to restrict the information given in their Part 18 answers.
It transpired that the claimant’s solicitors had written to Direct Line on 07/05/2009 with a standard letter, asking various questions and requesting a response within 14 days. However, they did not wait 14 days – they took out the policy 5 days later, on 12th May.
The claimant’s representative argued that the claimant was entitled to cancel the policy at any point “if it transpired that there was suitable BTE”. In response, our advocate submitted that this fact actually weakened his position rather than strengthened it as it made it all the more unreasonable to rely on a single, standard letter rather than press the insurer for a response in order that the ATE premium could be cancelled. This submission convinced Costs Officer Martin that the ATE premium had not been reasonably incurred.
Another fact that assisted our case was that the defendant’s insurers had made a settlement offer in respect of damages around the time that the ATE policy was obtained, and it turned out to be not far short of the eventual settlement amount, which should have suggested to the claimant’s solicitors that this case was likely to settle quickly.
On that basis Costs Officer Martin disallowed the ATE premium and the bill was assessed at nil. The claimant was ordered to pay our costs, which were summarily assessed in the sum of £1291.67.
