The Decision of Master Leonard, sitting in the Senior Courts Costs Office, in Mitchell v. Gilling-Smith [2017] EWHC B18 (Costs) will be welcomed by personal injury claimants. The Claimant had claimed damages for negligent treatment of a ovarian endometrioma. At the time of entering in to a CFA with her solicitors, when the Defendant’s response to the claim was an “unknown quantity”, the Claimant purchased a block rated ATE insurance policy for £10,000.00, for medical report expenses of up to £100,000.00.

 

The claim subsequently settled in the sum of £200,000.00 plus costs. At this time the medical report expenses incurred only amounted to £2,000.00.

 

At the costs assessment the Defendant argued that it was not reasonable for the Claimant to have taken out an ATE premium at the time that they did and instead that they should have waited until they had a better understanding of the medical evidence required. It was also argued that the premium and cover were excessive to cover an exposure which came to only £2,000.00.

 

The Judge dismissed the Defendant’s arguments, not least because they required the application of hindsight. He noted that the block rated policy taken out by the Claimant had to be taken out at the time of signing the CFA and there was a risk, had the policy been taken out at a later date, that it would prove impossible or more expensive to obtain insurance. Furthermore, the Claimant’s solicitors could not have safely assumed that the cost of the medical reports would have been so low and the fee of £10,000.00 was proportionate when measured against the value of the claim.