Neil Austin v Philip Rocket (Newcastle-upon-Tyne CC)

This Detailed Assessment dealt with one issue only – the ATE cover obtained by the claimant. 

We argued that the ATE premium was not recoverable because the claimant’s solicitors failed to carry out the enquiries necessary to establish whether the claimant had the benefit of BTE insurance. 

DJ Atherton held that the ATE premium had been unreasonably incurred, and was therefore disallowed.  He ordered the claimant to pay the defendant’s costs of the assessment of £2,400.00.

The original claim arose from a road traffic accident.  Damages were agreed pre-issue and the claimant’s costs fell within the fixed recoverable costs regime.

A dispute arose in relation to the ATE insurance premium in the sum of £367.50.  HF, for the defendant, argued that the premium was unreasonably incurred because the claimant’s solicitors failed to make reasonable enquiries in relation to BTE insurance, particularly as it was indicated that the claimant did indeed have one available to him.

The claimant’s solicitors’ enquiries consisted of sending out a standard questionnaire to the claimant’s RTA insurers, accompanied by a strongly worded letter.  We argued that they did not request sight of the claimant’s own insurance documents or attempted to contact the insurers by telephone; we argued that their approach was aimed at avoiding the uncovering of the claimant’s BTE insurance.

The claimant’s solicitors said that they had been told by the claimant’s insurers that they “had no financial interest”.  Despite requesting to have sight of this letter on numerous occasions, the same was not disclosed to us.

At Detailed Assessment, our instructed counsel argued as follows:

1. The claimant’s solicitors failed to follow “Sarwar”.
2. The claimant’s solicitors failed to inform their client that once the BTE was discovered he was entitled to cancel the ATE with absolutely no consequences.

In the circumstances, DJ Atherton concluded that it was unreasonable for the claimant’s solicitors to continue to press for the ATE premium once they knew of the existence of BTE, unless they could show that there was a risk of the claimant being exposed to an adverse costs order.  He therefore disallowed it, and ordered the claimant to pay the defendant’s costs of the Detailed Assessment summarily assessed in the sum of £2,400.00.