ATE Insurance UK: Medical Negligence Cover Guide

Overview

ATE insurance is a policy taken out after an event has happened, typically after an injury or loss has occurred and a legal claim is being contemplated. It is distinct from Before-the-Event (BTE) cover, which is bought in advance as part of a home or motor policy.

In clinical negligence work, ATE is usually arranged alongside a Conditional Fee Agreement (CFA), more commonly known as a no-win-no-fee arrangement. The policy sits on top of the CFA and plugs the gaps the CFA does not cover. If the claim wins, the claimant typically recovers damages and the solicitor's base costs from the defendant, and the ATE insurer is paid its premium.

If the claim loses, the insurer steps in to meet the liabilities covered by the policy, which commonly include the defendant's legal costs and the claimant's own disbursements such as expert fees. Since the Jackson reforms in 2013, most ATE premiums are no longer recoverable from a losing defendant, but a carved-out exception applies to clinical negligence claims for the element of the premium that covers expert report costs on liability and causation.

Key steps

1. Get an initial view on whether there is a claim. Before any insurance is put in place, you need a solicitor who handles clinical negligence work to look at the broad facts and form a preliminary view on prospects. ATE insurers will only offer cover where the case is assessed as having reasonable prospects of success, usually pitched at 51% or higher. 2. Agree a funding structure with your solicitor. Most claimants fund clinical negligence cases through a Conditional Fee Agreement combined with ATE insurance. Your solicitor should walk you through how the CFA works, what success fee applies if you win, and how the ATE premium is structured. Ask whether the premium is deferred and self-insured, which is standard in this area. 3. Application and underwriting. Your solicitor applies to one or more ATE providers on your behalf, sending a case summary, medical records review, and an assessment of prospects. The insurer underwrites the risk and either offers terms, asks for more information, or declines. Strong cases with clear breach of duty and causation are easier to place than borderline ones. 4. Policy issued and claim progresses. Once the policy is in force, your solicitor can instruct experts and issue proceedings knowing that adverse costs and disbursements are covered if the case fails. You should read the policy schedule carefully to understand the cover limit, any exclusions, and the conduct obligations that can void the policy if ignored. 5. Outcome and premium payment. If you win or settle, the premium becomes payable, usually out of damages, with the recoverable element for expert reports on liability and causation claimed from the defendant. If you lose, the insurer pays out in line with the policy and, in most self-insured arrangements, the premium itself is written off so you are not out of pocket.