ATE Premiums, publication and privacy proceedings, and Fixed Recoverable Costs
The introduction of the Intermediate Track and expansion of Fixed Recoverable Costs (FRC) seems to have sneaked up on some of us who rarely encountered fixed costs prior to October last year. Thankfully, Kain Knight has a wealth of knowledge in the field picked up through the earlier fixed costs schemes. In this regard, I have Nick McDonnell to thank, who was on hand to talk through this interesting scenario when a client posed an thought-provoking question ahead of us delivering a training seminar on FRC:
Can a Claimant in publication and privacy proceedings recover their ATE premium from the opponent?
In terms of publication and privacy proceedings, although the between the parties recovery of success fees was halted following the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 (Commencement No. 13 Order 2018), publication and privacy proceedings remain excluded from the commencement of s46 of the 2012 LASPO Act, meaning that premiums for ATE insurance remain recoverable by way of legal costs in publication and privacy proceedings.
However, following the introduction of the Civil Procedure (Amendment No. 2) Rules 2023 (from 1 October 2023), costs in publication and privacy proceedings issued on or after 1 October 2023 meeting the relevant criteria may be allocated to the Intermediation Track (applying to most claims valued between £25,000 and £100,000). Thus, recoverable costs between the parties fall to be determined with reference to the new FRC scheme.
On the Intermediate Track, CPR 45.50 provides that the only costs allowed are: the fixed costs in Table 14; and the disbursements in Section IX. The Court of Appeal has confirmed (in Herbert v HH Law Ltd [2019] EWCA Civ 527, for example) that an ATE premium is not a disbursement. Therefore, CPR 45.50 does not appear to provide for the recovery of ATE at all (or at least it’s recoverability falls within the fixed costs in Table 14 and nothing additional is payable for an ATE premium – perhaps further eroding the recoverable costs of the solicitor).
Is this an unintentional oversight? Arguably not. Mesothelioma claims are specifically excluded and are another species of case where recovery of additional liabilities has survived LASPO. So is this an intentional killing off of ATE recovery in publication and privacy proceedings? Perhaps.
When recovery of success fees in publication and privacy proceedings was enacted in 2018, this was against a backdrop of the judgment of the European Court of Human Rights in MGN v United Kingdom, where the European Court had found that the regime which permitted the recovery of a 100% success fee from a media Defendant in privacy proceedings brought by Naomi Campbell infringed the Defendant’s Article 10 rights.
However, not every litigant pursuing publication and privacy proceedings is a celebrity supermodel who may have superabundant means. In addition to proceedings for defamation, misuse of private information falls within the definition of publication and privacy proceedings (see Article 1 of the 2013 LASPO Commencement Order). Such proceedings frequently involve matters such as the unjustified disclosure of medical records, which may involve an average person of modest means. The damages available may also be modest and with no QOCS protection and now potentially no ATE recovery, access to justice may be diminished.
Potentially a niche point, but not one that seems to have garnered much bandwidth amongst the myriad of uncertainties and inevitable teething problments in the new FRC scheme!
Author, Thomas Spanyol is a Senior Costs Lawyer in the Kain Knight commercial team. Thomas has been working in costs since 1999 and most of his career has been focused on servicing the cost-related needs of a variety of firms (primarily City of London firms of solicitors). Advising on costs issues arising throughout the litigation process, as well as the traditional justification and opposition of costs at the conclusion of cases.
To arrange a training seminar in relation to the new FRC scheme please contact: FRCConnect
Thomas Spanyol
Senior Costs Lawyer
Telephone: 07897 367 564
Kain Knight (City) Ltd
44 Southampton Buildings
London
WC2A 1AP
