In the case of Mitchell v Gilling-Smith  EWHC B18 (Costs), Master Leonard has allowed an ATE insurance premium of £10,000.00 in a case that settled for £200,000.00.
The Defendant had argued that the Claimant should not have taken out ATE insurance at all as Qualified One Way Costs Shifting provided adequate protection. In the alternative, the Defendant argued that a bespoke policy rather than a block rated policy should have been taken out by the Claimant.
The Master rejected the Defendant's arguments on the basis that the Claimant was always going to require medical evidence and that the Claimant could not have known that the claim would ultimately settle. To consider that argument would be to apply the benefit of hindsight.
The Master also confirmed that it was reasonable to take out a block rated policy as the alternative would result in some cases being rejected and others accepted with increased premiums.
The Defendant invited Master Leonard to give his considered view as to the inclusion of additional liabilities in relation to the new proportionality test. The Master refused to do so on the basis that this point will shortly be considered by the Court of Appeal in the case of BNM v Mirror Group Newspapers.
Comment: The Defendant raises points that seem to cover old ground. The issues of the early uptake of ATE insurance and the application of a block rated policy have been considered many years ago in cases such as Callery v Gray and Rogers v Myrthyr Tydfil County Borough Council with those decisions confirming that an ATE policy can be taken out at an early stage and that a block rated policy is reasonable. In my view, the fact that this relates to the recoverable element of a policy covering the obtaining of medical evidence is not good reason for such issues to be reconsidered.
The appeal in BNM will no doubt give us some guidance on the issue with regard to the inclusion of additional liabilities in the new proportionality test. Watch this space!