Supreme Court holds that ATE insurance premium is recoverable where the policy was "topped up" after 1 April 2013

Changes brought in under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") resulted in success fees under a CFA and premiums for an ATE insurance policy no longer being recoverable by the winning party on or after 1 April 2013. Of issue in this case was the transitional provisions put in place by the legislation for these changes.

The ATE policy in this case was originally concluded in 2008 and was "topped up" after 1 April 2013 for the appeal to the Court of Appeal, and again for the appeal to the Supreme Court. The top-ups did not give rise to a fresh policy. The transitional provisions relating to ATE premiums provide that "the amendments made by this section do not apply in relation to a costs order made in favour of a party to proceedings who took out a costs insurance policy in relation to the proceedings before the day on which this section comes into force" (emphasis added). Unlike the transitional provisions for success fees (which refer to an agreement in connection with the matter that is the subject of the proceedings), the link is with the proceedings themselves.

The policy entered into here, before 1 April 2013, was not a policy relating to the appeals. Nevertheless, the Supreme Court has now held that, for this purpose, the "proceedings" relates to both the trial and the successive appeals: "The topping-up of his ATE policy to cover the appeal is in reality part of the cost of defending what he has won by virtue of being funded under the original policy". Accordingly, the top-up ATE premiums were recoverable here.