West v Stockport NHS Foundation Trust and Demouilpied v Stockport NHS Foundation Trust [2019] EWCA Civ 1220

Proportionality of Post-LASPO ATE Premiums

This long-awaited hearing finally arrived in July 2019.

It concerned the reasonableness and recoverability of post-LASPO ATE premiums.

In this post I will deal with the comments and ‘guidance’ provided in respect of the new test of proportionality. Once the first stage of the test has been complete (the line-be-line assessment as to whether the costs claimed are reasonable and reasonable in amount) the court will then look to see if the assessed amount is proportionate.

If the Court finds the costs to be proportionate then no further assessment should take place.

However, if the Court finds the costs to be disproportionate then they must start to look at the different ‘categories of costs’. However, it is important to note that the Court clarified that some categories of costs should be excluded from the test of proportionality. These were described as ‘unavoidable litigation costs’ and included Court fees, VAT and the ATE premium. It is interesting to note that the definition was not strictly defined or that the categories that fall into this exemption were clearly prescribed.

It will be interesting to see whether the comments made are elaborated or clarified further in future decisions.

The full judgement can be read here

If you have any questions regarding this summary case law please contact Kris Kilsby here

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