ATE Insurance Clinical Negligence UK: Full Guide

Overview

ATE insurance is a specialist form of legal expenses cover that you buy after a legal issue has already arisen, which is why it is called 'after the event'. In clinical negligence claims, it is usually arranged by your solicitor at an early stage, often alongside a conditional fee agreement (a 'no win, no fee' arrangement).

The policy is designed to pay for disbursements and adverse costs if the claim is unsuccessful. Disbursements in clinical negligence cases are often substantial because they include medical expert reports, court fees, and sometimes counsel's fees. Adverse costs are the legal costs of the defendant that a losing claimant can be ordered to pay.

Without ATE cover in place, a claimant who loses could face a bill running into tens of thousands of pounds, even where the case was brought in good faith. ATE turns that open-ended risk into something predictable, and in many cases no premium is payable at all if the claim does not win.

Key steps

1. Speak to a clinical negligence solicitor first. ATE insurance is almost always arranged through a solicitor rather than bought directly. The solicitor assesses whether your claim has reasonable prospects of success, because insurers will generally only offer cover where the case meets a minimum threshold. This initial view shapes whether ATE is even available to you.
2. Understand the premium structure on offer. Premiums typically fall into three categories: deferred (paid at the end of the case), staged or stepped (rising at set litigation milestones), and self-insured (where the premium itself is covered by the policy if you lose). Each structure suits different cases, so ask your solicitor which applies and why they are recommending it.
3. Check what the policy actually covers. Read the schedule carefully. Most ATE policies in clinical negligence cover adverse costs and your own disbursements, but the limits and exclusions vary between insurers. Pay attention to the indemnity limit, whether expert fees are fully included, and what happens if the case settles early or is abandoned.
4. Confirm how the premium is paid if you win. Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012, ATE premiums are generally not recoverable from the losing defendant, with a narrow exception for the part of the premium relating to expert reports on liability and causation in clinical negligence claims. Make sure you understand which portion, if any, comes out of your damages.
5. Keep the insurer informed as the case progresses. ATE policies usually contain conditions requiring your solicitor to report on developments, settlement offers, and changes in prospects. Failing to comply can give the insurer grounds to avoid the policy. Your solicitor handles most of this, but it is worth knowing the obligations exist.