Matthew Williams discusses the following question: ATE: Still on the Agenda - Abolition of recoverability and implications for commercial cases.

1. ATE: Still on the
Agenda - Abolition
of recoverability
and implications for
commercial cases
Abolition of recoverability
of ATE premiums and CFA
success fees has been much
heralded. It is anticipated to
be effected by the April 2013
implementation of parts of
The Legal Aid, Sentencing and
Punishment of Offenders Act
(LAPSO). Much of the focus on
repercussions has been on the impact for personal
injury claimants and on the introduction of qualified one
way cost shifting (QOCS). There has been significantly
less debate on the impact for commercial cases.
Impact of changes on ATE for commercial cases
The end of recoverability does not mean the end of
availability of ATE insurance for commercial or other
cases. Neither does it mean the end of the need to
address the merits of applying for cover, at the outset
and/or as a matter progresses. QOCS will not apply
to commercial cases and cost shifting will continue to
apply. A party to a commercial dispute will continue
to run the risk of being required to pay a successful
opponent’s costs (and be responsible for the entirety of
their own), should their case fail. With recoverability in
place, the advantages of obtaining cover are obvious.
Where payment of the premium is contingent on
success, and is then recoverable from an opponent,
seeking cover may be considered something of a ‘no
brainer’. When recoverability goes, that position will
differ to the extent that the premium will be payable
by the insured either from damages or otherwise. That
is the new factor to be considered and weighed in the
economics for each case, but the advantage of risk
protection remains just as clear.
Dispute resolution lawyers are acutely conscious of
the need to give clients the best information about the
costs of their matter from the outset and throughout.
Where that risk can be offset by ATE cover, then
irrespective of the abolition of recoverability, a client
will want to understand the relative benefits of cover in
the commercial and economic context of the particular
claim. If the claim involves a funder, that funder will
often require ATE cover as a condition for funding.
The new ‘post recoverability’ world may alter some
dynamics of ATE considerations but commercial ATE
cover should remain firmly on the agenda.
By Matthew Williams, Head of AmTrust Law at AmTrust
Financial Services
Overhaul to overcome
As part of the service I provide
for the Bold Legal Group
members I attended, and reported
on, the National Property Law
Conference that took place in
October. The topics covered
included; the SRA’s Conveyancing
review; Joint Ownership in light of
Jones v Kernott; the new Property
Information Form; Mortgage Fraud; Lender Panels and
the Conveyancing Quality Scheme.
If you thought that the run up to last October, with
the new SRA Handbook, OFR, the Legal Services Act
and Alternative Business Structures was hectic, think
again. The next fourteen months will be even worse. The
way conveyancing is carried out and delivered will, in
my opinion, change dramatically. High street law firms
really must start paying attention now and make sure
that their own houses are in order.
There are new market entrants (Co-op, AA, SAGA,
Direct Line) and there will be more. Say what you like
about them but they will, over time, have a negative
impact on your businesses.
Many firms will need to give themselves a complete
overhaul. What do your offices look like from the
outside? How welcoming are they inside? Are your
front line staff as approachable, friendly, helpful and
knowledgeable as they should be? Are you telephones
answered promptly? Is the help and advice given by
those answering the phones really as good as it can be?
Are verbal estimates followed up in writing and then
followed up again by a phone call? Your fee earners
might be good when it comes to the areas of law they
deal with but are they good enough when it comes to
interacting with the public? All of these things, as small
as they might seem, are important.
There are many things I can help you with (for
example keeping up to date with industry changes and
new market entrants) and there are many things you
can help yourselves with. However, the first thing you
need to do is acknowledge that as times change so
must you.
If you are interested in joining the Bold Legal Group
and/or coming to any of our CPD events (next one
15.11.12), please email: rh@boldlegal.co.uk.
By Rob Hailstone, Bold Legal Group
ML // November 2012
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