Exclusive: MoJ summons ATE insurers to discuss changing rules on medical negligence

medical reports

Ministry of Justice : “leading work on reforming the arrangements” for ATE insurance

The Ministry of Justice (MoJ) is considering changing the rules on recoverability for ATE premiums in medical negligence cases, Litigation Futures can reveal.

An e-mail from a civil servant at the MoJ links “reforming the arrangements” for ATE insurance to the Department of Health review of fees in medical negligence cases. The department is expected to launch a consultation on fees in October.

The e-mail – issued by the MoJ’s civil litigation, funding and costs team – states: “This government is building on the substantial civil justice reforms of the last Parliament. These followed Lord Justice Jackson’s report and are intended to control costs and discourage unnecessary litigation while allowing access to justice for meritorious cases.

“You will be aware that the government is considering reforms to control the costs of clinical negligence cases. Work on a new fixed recoverable costs regime is being led by the Department of Health.

“The Ministry of Justice is leading work on reforming the arrangements for after-the-event insurance where premiums remain recoverable for clinical negligence expert reports. The MoJ intends to discuss ATE reform with key stakeholders over the summer, with a view to consulting formally later this year.”

The e-mail ends by inviting insurers to a “stakeholder event” in August, and Litigation Futures understands that this will take the form of a series of one-to-one meetings throughout the month.

Under section 46 of LASPO, and the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013, premiums paid to fund expert reports on liability and causation in medical negligence claims remain recoverable.

A senior source at one leading ATE insurer said the meetings were part of a “double-pronged” attack by the government, with fees being targeted by the Department of Health while the Ministry of Justice targeted insurance premiums.

He said that “just when the market was approaching some kind of normality”, there “appeared to be another attack on access on justice and injured people”.

The source said that under the current regime, the “biggest part of clinical negligence premiums” were still recoverable.

However, a senior source at another leading ATE insurer took a more positive view.

“I’m keeping an open mind on this. The Ministry of Justice has a position and we have a position, as a company and an industry.

“It’s too early to say that the end game will be a substantial decrease in the availability of premiums which would deny people access to justice. We don’t know enough about it.”

A spokeswoman for the Ministry of Justice said: “The government has announced its intention to tackle the high costs of litigation in clinical negligence claims in order to save the NHS money which would be better spent on patient care. The cost of after-the-event insurance will be considered as part of this work.”


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