After-the-event (ATE) insurance premiums must continue to be recoverable in defamation cases “to ensure adequate access to justice for individuals whose right to a private life has been violated, a committee of MPs and peers has told the government.
Harriet Harman MP, chair of the joint committee on human rights, expressed concern that the Ministry of Justice (MoJ) has only committed to retaining recoverability of ATE “for the time being”.
In November, the MoJ announced  that it was ending the recoverability of success fees in defamation cases from 6 April 2019, but not ATE premiums.
Ms Harman was writing to Lord Chancellor David Gauke in relation to both the announcement and the government’s efforts to address outstanding European Court of Human Rights rulings, including the Naomi Campbell defamation case, MGN v UK.
“I would be gravely concerned were those with reasonable or good cases unable to secure affordable AE insurance and therefore unable to enforce their right to a private life,” Ms Harman wrote.
Noting that Mr Gauke had stated that the recoverability of ATE premiums in defamation would continue “at least for the time being”, she said: “We consider – as reflected in the Leveson report recommendations – that costs protections must be maintained to ensure adequate access to justice for individuals whose right to a private life has been violated, so that they are able to ensure their rights.
“Therefore, were there to be any changes to this system, alterative adequate measures to enable access to justice must be put in place.”
Ms Harman also asked for information on the government’s plans to monitor the ATE market.
In his reply, Mr Gauke wrote: “ATE insurance premiums are priced in a way that reflects the risk (and by extension merits) of a case. This ensures that good cases can be taken forward while weak caes will naturally be filtered out as they are unlikely to be insured.
“This system allows individuals with good cases to enforce their rights… We would expect solicitors to make us aware of any concerns about the availability of ATE insurance for these cases: to date they have not done so.”
Mr Gauke indicated that the MoJ would not be monitoring the issue: “In the circumstances, it seems reasonable to conclude that there are no particular concerns about the availability of ATE insurance at the moment, but should your committee, or solicitors practising in the field, make us aware of any, we would be happy to look into them.”