Judge on Appeal allows ATE costs to be deducted from child’s damages

X – v – H & H Hennes [2022]

As those in the legal profession are aware, since the introduction of QOCS, many Judges have been reluctant to allow ATE premiums to be deducted from damages at Infant Approval Hearings.

However, the recent judgement of X – v – H & M Hennes made by HHJ Lethem on 21^st April 2022 has now provided further clarity.

At the initial approval hearing, the Deputy District Judge did not allow for the ATE premium to be deducted from the client’s damages but on appeal that decision was overturned.

In his judgement, HHJ Lethem noted that providing the ATE premium had been reasonably incurred and agreed by the client (here the Litigation Friend), and following Herbert v HH Law the amount of ATE was not to be challenged, the Deputy District Judge was wrong to disallow recoverability of the premium.

In terms of the application of law, Mr Hughes, for the claimant, made three points:

i)the Court should have regard to the provision of Rule 49.6, however any issues of proportionality were absent because the assessment is on an indemnity basis;

ii)that there was a presumption that the costs had been reasonably incurred and were reasonable in amount, provided that they are incurred with the agreement of the client.  Importantly in this case, he referred to the witness statement from the Litigation Friend which confirmed that costs were incurred with her knowledge and approval. 

iii)based on Herbert v HH Law Limited [2019], ATE premiums are not capable of being challenged under the provision of CPR 46.9, and it is not open to a District Judge to disallow an ATE premium which meets these requirements.

HHJ Lethem accepted Mr Hughes’s second and third submissions, finding that the Deputy District Judge failed to properly apply the operation of CPR Part 21.12 (4) (recovery of Litigation Friend’s costs) and allowed the appeal, ordering that the Litigation Friend was entitled to have the £336.00 premium deducted from the claimant’s damages.

It is encouraging to see the Courts acknowledging that in these situations ATE Insurance is put in place to ensure that a minor is able to make a claim without there being any financial risk to the Litigation Friend.

…………………………………………………………………………………………………………………………………………………………

Here at Box Legal we have been offering after the event legal expense insurance, including insurance for minors, since 2004 and have a wealth of experience. We have competitively priced ATE insurance policies available for all types of personal injury claims and can also arrange legal expense insurance cover for non-personal injury claims such as housing disrepair and financial mis-selling.

The number and variety of cases we arrange cover for is always increasing and so please contact us to discuss any after the event insurance requirements. We are happy to discuss and develop ATE insurance for case types we do not already insure.

If you would like to speak to us or obtain further information then please call on 0870 766 997, or email info@boxlegal.co.uk