It is now the time for open discussion of Callery v Gray.
There may have been some last minute doubts, but now, two years on, the House of Lords has confirmed and clarified what most thought it would: that the system the government put in place through the Access to Justice Act [1999] for recoverability of ATE premiums and success fees does what it intended to do.
Where do we go from here?
The Lords has not done what many in the insurance industry called for and provided certainty to avoid the need for legal argument on individual cases of recovery.
In fact, it has very much washed its hands of it by firmly advising this is the ambit of district judges (from whom uniformity cannot be expected) and any appeals should remain with the Court of Appeal.
When the Court of Appeal heard Callery v Gray itself, even after conducting a formal consultation process with the insurance industry, it shied away from providing guidelines on "spot rates" for premiums and "tariffs" for success fees. Many would agree with its logic for doing so: the market is too immature to produce meaningful statistics.
Must it not then be up to our industry to sort out the mess? Or can the insurance industry let its prices be controlled by non-economic forces such as judicial intervention? With over 150,000 cases outstanding pending the Lords' decision, we cannot deny customers have suffered. But, let's face facts, the ATE funding system is here to stay.
Now we have a framework to work within let's accept it and move on.
We crave that certainty with the legitimate concerns of consumers of all kinds of liability insurance in mind in the same way that solicitors and liability insurers do. We would like to be the first to say openly to the industry:"Let's talk about it."
Composite is happy to host the opening gambit.
Ben Hawkins
Business development manager
Composite Legal Expenses
