INSURANCE: Premium levels vital to sources of CFA cover
Mark Humphries and Justin Williams look at the prospects for after-the-event insurance cover following the Access to Justice Act
Litigants have always been able to buy after-the-event cover (insurance cover in respect of their costs exposure), but it has always been perceived as expensive. Suddenly, however, such cover has become much more attractive. For conditional fee agreements (CFAs) signed on or after 1 April, after-the-event insurance premiums (as well as success fees) are, in principle, recoverable from the loser. Section 29 of the Access to Justice Act (AJA) 1999 states: “Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him, may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.”Doubtless, insurers’ marketing copy will now say that not only can litigation be risk-free, it can be relatively inexpensive – if the litigation is lost, the claimant pays only the premium; if it is won, the claimant pays nothing at all. (The premium is recovered under s.29 of the AJA, the success fee under s.27.) There are, however, some catches:
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