England and Wales High Court (Senior Courts Costs Office) Decisions

IN THE SUPREME COURT COSTS OFFICE
TRANSFERRED FROM BOW COUNTY COURT

		Clifford's Inn, Fetter Lane London, EC4A IDQ
		16 September 2005

Master Wright

1. The Claimant in this case took out an after the event insurance policy with Europ Assistance on 10 December 2003. The premium was staged or stepped so that it was £367.50 inclusive of IPT up to the issue of proceedings ("Stage I "); if the case continued after that, it was £787.50 inclusive of IPT after issue but up to 45 days before trial ("Stage 2"); and if the case continued after that it was £1 ,890 inclusive of IPT ("Stage 3").
2. The issues to be resolved (according to the Defendant's List of Issues) are:

a) was the choice by the Claimant (whether on the advice of her solicitor or insurer or otherwise) of the Europ Assistance ATE insurance policy a reasonable one in all the circumstances?

b) Is the premium claimed of £ 1 ,890 a reasonable and/or proportionate sum in all the circumstances of this case? If not, what is a reasonable and proportionate sum to be allowed on assessment?

3. The Defendant (in its List of Issues) states that for the avoidance of doubt it does not contend that the concept of a staged premium is unreasonable per se but contends that it is necessary in a staged premium case for the court to look at the amounts charged for each stage, and in particular the stage in question and to compare these with a reasonable sum for a single (non-staged) premium in order to determine the reasonableness and/or proportionality of the premium claimed.
4. The Defendant also states (in its List of Issues) that it does not contend that the points at which Stage 2 and/or Stage 3 became applicable were unreasonable, only that the amounts of the premium in Stages 2 and 3 are unreasonable and/or disproportionate in the circumstances of this case, a fast track road traffic accident personal injury case which was not out of the ordinary, albeit that it went to trial.
5. Again in its List of Issues the Defendant states that it contends that a total premium of no more than £367.50 (as per that allowed in Callery v Gray and Stage 1 of the premium in this case) or alternatively a total premium of no more than £787.50 (as per that allowed in the Anthony Baker case in the RSA Pursuit Test Cases and coincidentally the same figure as Stage 2 of the premium in this case) is a reasonable and proportionate sum in the circumstances of this case. Alternatively the Defendant states that subject to the alternative case put forward for £787.50, it relies on paragraph 1 to 6 of its Points of Dispute.
6. In his first Witness Statement dated 29 June 2005 the Claimant's solicitor Gregory Francis Cox, a partner in the firm of Colemans-ctts ("Mr Cox"), responded to the issues raised by the Defendant. He gave the background. The Claimant claimed damages for personal injuries arising from an accident on [ May 2002 at the "Charlie Browns" roundabout, South Woodford, London. The Claimant was proceeding around the roundabout to take the second exit when the Defendant's vehicle, travelling in the wrong direction, drove into collision with the Claimant.
7. Mr Cox sets out a chronology of the relevant events showing that the Claimant first instructed Colemans-ctts on 7 May 2002. They carried out a risk assessment on 4 July 2002 and entered into a Conditional Fee Agreement with the Claimant on 29 July 2002. Mr Cox states:

"6. I note that I had carried out the initial risk assessment on 4 July 2002. The most significant factor identified was the risk on liability. The accident was on a roundabout and in the light of the information available at the time I assessed the risk on liability as significant. I also identified, based on the information from the client about the nature of her injuries, that there was a risk that general damages would not be valued at more than £ 1 ,000. I had also identified other generic factors (general risk litigation and risk that they may fail to proceed). Whilst I do not, at the time of making this statement, specifically recall carrying out the risk assessment in this case, I can say that it would be unusual for me to assess a road traffic accident case as justifying a 100% success fee and that the only reason I would have done so is because the risks on liability were significant and I thought that there was a real prospect that the case may fail on liability."

8. Mr Cox goes on to state:

"7. There was considerable uncertainty about conditional fee agreements and after the event insurance at that point in time. Defendants (or more properly liability insurers) were routinely making challenges to the validity of Conditional Fee Agreements and After the Event Insurance policies. Earlier in July 2002, a client represented by Colemans had had the whole of his inter partes claim for costs disallowed because of a technical challenge. This caused considerable difficulties for that client because he had a policy of after the event insurance which was paid for via a disbursement funding loan. Although that client was unable to recover the After the Event insurance premium from the Defendant in that case he had funded the insurance premium by disbursement funding loan and was still liable to pay that loan. Ultimately that client was successful on a second appeal to the Court of Appeal (Tichband v Herdman [2003] EWCA Civ 718, judgment 22 May 2003).

8. Nevertheless, in July 2003 there was such a climate of uncertainty that it was not felt appropriate to take out after the event insurance for Ms Tyndall or for many of our road traffic accident, accident at work or public liability claimants."

9. A pre-action protocol letter was sent to the Defendant on 29 July 2002. With that letter there was enclosed a Witness Statement from Mr Burton, an independent witness who clearly blamed the Defendant's driver for the accident. The Defendant was notified of the existence of the CFA.
10. On 14 August 2002 the Defendant's insurers Norwich Union denied liability. Mr Cox says in his first Witness Statement that the Defendant's insurers repeatedly denied liability alleging at various stages that the Claimant had been in the wrong lane, had cut across the Defendant's path and had driven off without stopping and that the Defendant had to catch up with her.
11. The Defendant's driver signed her Witness Statement on 14 October 2002 and her witness Mr Morgan (who was a fellow employee and a passenger in the Defendant's vehicle) signed his statement on 13 December 2002. These statements were served on 13 February 2003.
12. On 18 March 2003 the Defendant, while maintaining that the Claimant had been in the wrong lane, proposed a SO/50 split on liability. On 10 April 2003 the Claimant rejected the SO/50 proposal on liability.
13. On 13 May 2003 the Defendant, while still maintaining that the Claimant had been in the wrong lane, requested acceptance of the 50/50 offer on liability within 21 days or alternatively nominated solicitors for service of proceedings.
14. On 27 June 2003 the Claimant made a Part 36 offer of £2,672 stating that settlement would be subject to payment of the Claimant's costs and disbursements. The letter concludes:

"Finally we await your acceptance during the course of the next 21 days, failing which we are instructed to issue County Court proceedings without further delay."

15. Mr Cox says, in his first Witness Statement:

"10. During 2003 I had, in conjunction with other partners in the firm, been looking to identify a suitable after the event insurance product which we could recommend to clients in appropriate cases."

16. Mr Cox then listed the criteria which had been identified. These were:

a) Full protection in relation to Part 36 offers and the costs consequences of rejection of a reasonable offer.

b) A true delegated authority with minimum reporting and administration requirements. The reason for this requirement was, Mr Cox stated, that it was considered appropriate that in cases of relatively modest value, it would be neither reasonable nor proportionate to go to the market to seek specific quotes in each case.

c) The premium should be deferred so that the client was not required to make payment up front or take out an expensive loan to fund the premium.

d) The policy must genuinely payout claims - some policies on the market did not.

e) That clients would not be required to sign up to a Consumer Credit Act Agreement ("CCA"). Many potential clients perceived that there was a "catch" when they were asked to sign up to a CCA and this put them off.

f) Premiums must be reasonable and recoverable.

g) The policy must have plain English wording because long technical documents were off putting to clients.

h) The solicitors must have no interest in recommending the policy and receive no commission for recommending it.

i) There must be no requirement to have counsel on a CFA, so that the decision as to instruction of appropriate counsel would be left to the solicitors and the client and not fettered by ATE insurers.

17. Mr Cox said:

"11. We looked at a number of products for our accident at work public liability and road traffic accident work including the DAS and RAC products before narrowing the field to the Temple Legal Protection Product and the Europ Assistance ("EA") product as these products best met the criteria above.

12. I was impressed by the Temple product and particularly by the fact that it had been tested in the higher courts. Ultimately, a key factor in the decision to go with the EA product was that the scope of the delegated authority was wider. As I set out above, the uncertainty caused by the "technical challenges" during 2002 and early 2003 (in fact these were only resolved on 22 May 2003) had led to a situation where we had a number of more "mature" cases like this Claimant's case where there had been a denial of liability or Part 36 offers had been made. These cases would have been unsuitable for the Temple delegated authority scheme and would have had to be specifically referred to Temple for a quote. With the EA product we would be (subject to the delegated authority criteria) and were able to deal with the Claimant's case on a delegated authority basis."

13. The scope of the delegated authority with EA was finally agreed in December 2003 and on 10 December 2003 a policy of insurance was issued in this case under that delegated authority. On the same day EA were notified and were on risk.

18. On 11 December 2003 Colemans wrote to the Claimant saying:

"With further reference to the above and our previous correspondence in this matter we would advise that we have managed to obtain an after the event insurance product to cover you for the costs of the imminent County Court proceedings."

19. Enclosed with the letter were Guidance Notes and a copy of the EA policy documents. The letter says:

"We should point out that the premium does not become payable until the end of your claim and that we expect to recover it from your opponents."

20. The letter goes on to say:

"Action you need to take:

There is no need for you to take any action unless you do not wish to take out a Europ Assistance After the Event Insurance policy. If you do not wish to take out the policy please return the enclosed form to us within 15 days."

21. The Claimant signed her Witness Statement on 21 December 2003 and by letter dated 6 January 2004 the Defendant's insurers were advised that a policy of ATE insurance had been taken out and were given a further 7 days to concede liability. They did not concede liability and proceedings were issued in the Altrincham County Court on 19 January 2004.
22. On 16 February 2004 the Defendant's Defence was served denying liability, the Defendant having (on 10 February 2004) made a Part 36 payment into court of £2,500.
23. The case was transferred to the Bow County Curt and allocated to the fast track. At the trial on 9 August 2004 His Honour Judge Bradbury held the Defendant to be 2/3 rds responsible for the accident and the Claimant to be 1/3 responsible. Damages were awarded in the sum of £3,345.63 inclusive of interest (£5,018.45 at 100%).
24. His Honour Judge Bradbury summarily assessed the Claimant's costs (excluding the ATE insurance premium) at £5,643.20 including a 50% success fee. By Order dated 19 January 2005 His Honour Judge Bradbury ordered that the detailed assessment of the ATE premium be referred to the Supreme Court Costs Office.
25. In his first Witness Statement Mr Cox said:

"19. Turning to the specifics of this case, at the point where the EA insurance policy was taken out in this case, the prospects were borderline 60%. Specific factors were:

(a) The significant risk on liability - by that stage we had had the opportunity to proof the Claimant and better assess evidence than at the time the CF A risk assessment was carried out;

(b) There was a risk that the Defendant may seek to rely on their 50/50 liability offer as giving costs protection in the event that this was not bettered at trial;

(c) The medical evidence which had been obtained by that stage had eliminated the risk that general damages would be less than £1 ,000;

(d) There was still a prospect that, once faced with proceedings, the Defendant would concede liability or make an acceptable offer to settle.

20. At the point of 45 days before the trial, but certainly by trial itself the risks prospects of success were no better than 50%

(a) The significant risk on liability remained and it was clear that there was going to be no opportunity to settle the case;

(b) The Defendant had made, following the issue of proceedings, a Part 36 payment which had been rejected and which put the Claimant at risk;

(c) The risk that the Defendant would rely on the 50/50 offer as giving them some protection on costs if the Part 36 offer was bettered remained a risk;

(d) There is always a significant risk at a trial which turns on conflicting evidence given by lay witnesses."

26. On 30 June 2005 the Claimant made a Witness Statement in which she said:

"3. I have made it clear to my solicitors throughout that I did not want to be at any risk of having to pay any costs. I realised that the other driver's insurers were blaming me for the accident and that I could have been ordered to pay costs. I thought this was outrageous.

4. If I had not been able to obtain insurance cover against the risk of me having to pay the Defendant's costs if I lost the case I would not have proceeded with it and would not have allowed my solicitors to take the case to court. When I received the letter of 11 December 2003 from my solicitors I was relieved and delighted that I could go ahead with the case."

27. In his Witness Statement filed in support of the Claimant dated 28 June 2005, Alan Strange states that he was employed by EA from January 2001 until March 2005 and that at the material time so far as this case is concerned (2003) he was employed as Business Director - Legal. This role, he states, involved managing the Legal Expenses business of EA, including the underwriting.
28. Mr Strange stated that he was involved in discussions with Colemans about a delegated authority After the Event scheme during 2003 and that he was aware that they were talking to a number of other potential providers.
29. Mr Strange said that Colemans had a number of criteria for the scheme (see paragraph 16 above) and that the scheme and the scope of the delegated authority was finally agreed between EA and Colemans at the beginning of December 2003 and was set out in the document headed "Colemans-ctts ATE Insurance Scheme for Delegated Authority".
30. Mr Strange said that the scope of the delegated authority given to Colemans was very wide and enabled them to issue a policy at any time including after the pre-action protocol letter had been sent. He said that this case was a good illustration of the scope of the delegated authority. It was clear in this case that at the point where the policy was issued, court proceedings were inevitable. There had been clear and repeated denials of liability by the Defendant's insurers yet Colemans were able to issue a policy under the delegated authority scheme with a minimum of administration.
31. Under the policy wording agreed with Colemans the client was covered up to the limit of indemnity (£25,000) for the following risks:

a) Opponent's costs (including full protection where the client failed to beat a Part 36 offer or other offer to settle);

b) Disbursements where the claim was unsuccessful, discontinued or abandoned including Counsel's fees. The policy contained no requirement to have counsel on a CF A basis.

32. An important feature of the policy was that the premiums were deferred and were not payable by the client at the outset whether out of their own funds or by way of a disbursements funding loan. Further the policy did not require clients to be asked to sign a CCA.
33. Mr Strange said that the premiums were set on a staged basis (see paragraph] above) and that in this case the Stage 3 premium of £ 1 ,800 plus IPT of £90 applies. He explained that there were a number of factors that went into setting the generic Stage 3 premium.
34. The first factor was identifying the potential adverse costs risks for a fast track trial. In his view these were generally in a range between £5,000 and £10,000. These had the following components:

a) Opponent's costs (including item (c) below) - in his experience it was rare for these to be less than £3,000 plus V A T of £525 for a case that had gone to trial and even in a fast track case they were likely to be higher than this;

b) Own counsel's fees - the trial fees are set by Part 46 at between £350 and £750 and he said that he had assumed a medium figure of £550 plus V AT (£646.25) for these fees although if counsel was instructed to advise or settle Particulars of Claim these fees would also be recoverable under the policy;

c) Opponent's counsel's fees which again he estimated at £550 plus VAT (£646.25);

d) Own disbursements which he estimated at £ 1 ,000 as follows:

i) Court fees - £400 to £600;

ii) Medical report fees and medical records - estimated at £500 to £750.

35. The next relevant factor, he said, was the risk that a payment would have to be made by EA. EA would be required to make a payment if either the case failed in its entirety or if the Claimant failed to better a Part 36 offer. He said that in a case that goes to 45 days or less before trial (assuming the Defendant is competently represented) he worked on the basis that the risk was finely balanced and that the opponent thought that they had a strong case on liability or that they had made a Part 36 offer that they thought would not be beaten.
36. Mr Strange said that the criteria for the delegated authority scheme was an assessment that the prospects of success were 60% at the time the policy was issued. Although, if the case has proceeded to within 45 days of trial or trial date, he would have anticipated that the prospects of success would have deteriorated to closer to 50%, he assumed a risk of 40% that EA would have to payout at Stage 3. He said that he also took the view that potentially if the case failed at trial the adverse payment would be £5,000. This would give a "burn cost" in the region of £2,000 before administration costs and profit were taken into account.
37. Mr Strange said that he was reassured by the fact that the Temple Legal Protection delegated authority scheme (which he said had been tested by the courts) had premiums of similar amounts on a similar stepped model. He said that he was further reassured by the report to the Civil Justice Council of October 2003 "Calculating Reasonable Success Fees in RT A Cases" by Professor Fenn and Mr Rickman. That report, he said, accepts a figure for the estimated failure rate at trial of 37.5% (this figure not including cases where a Part 36 offer is not beaten) which is broadly consistent with the figure of 40% which he had assumed.
38. In his first Witness Statement Mr Cox said that he had had the opportunity of reading Mr Strange's statement and that he agreed with his analysis of the potential costs involved in a fast track road traffic accident case. He said that Mr Strange's figures were supported by a recent case of O'Donnell v Francis handled by a fee earner at Colemans-ctts. That had been a fast track traffic accident which proceeded to trial on 31 January 2005. The Claimant had taken out a policy of ATE insurance with EA. The Claimant was ordered to pay one-third of the Defendant's costs which were

ultimately agreed and paid by EA in the sum of £2,237.84 (ie, £6,713.52 on a 100% basis).

39. In his Witness Statement made on behalf of the Defendant dated 24 June 2005, Adam Richard Burrell ("Mr Burrell") said that he is employed by Liberata GIS as a technical claims co-ordinator and that he made the statement in respect of the involvement of Norwich Union in this case. He said that over the relevant period he had been retained by Norwich Union to deal with their strategic technical costs claims and that he made the statement at the request of Beachcroft Wansbroughs in order to provide details of the relevant comparators that were available in the market at the relevant period.
40. Mr Burrell said in his Statement

"4. In order to deal with the premium issues on the technical cases that I deal with on a daily basis I frequently refer to The Judge website and Litigation Funding magazine in order to consider comparator premium levels.

5. I have carried out a search of The Judge website to ascertain what premiums were available for the Claimant. Whilst The Judge website was no longer updated after 31 July 2003 and I have therefore searched on that date as I am advised that the Claimant was looking to take out insurance before 31 July 2003. A copy of my search is attached and marked "ARB 1". The search gave 14 results. The lowest premium was £195 provided by Mike Young Legal Associates and the highest was provided again by Mike Young Legal Associates at £695.

6. The search of The Judge website shows Mike Young Legal Associates providing four different policies all at different prices. The "Legal Care (Fast Track) policy" priced at £195 is said to cover only fast track RTA cases and provides £100,000 of cover. It is a delegated scheme and panel membership is required. It will not cover hire/repair costs although I am satisfied that the Claimant in this case had credit hire and credit repair. The "Accident Care Plus (Fast Track) policy" priced at £695 is said to cover only fast track RTA cases and again provides £100,000 of cover. This policy does however cover hire and repair costs.

7. I have also carried out a search through Litigation Funding for October 2003 and February 2004. Although there was a publication in December 2003 this only shows products with both sides cover which are not comparable. This magazine is published quarterly and shows the provider, the premium level, whether the premium is deferred, whether disbursement/premium funding is available, whether the product is self-insuring and the level of cover provided.

8. My findings for October 2003 are attached and marked "ARB2". There were 18 providers that month that gave details of the premium level charged in RT A cases. The lowest premium available was provided by Amicus Legal with premiums from £98.42 and the highest premium available was provided by NFL at £550.

9. My findings for February 2004 are attached and marked "ARB3". There were 17 providers that month that gave details of the premium level charged in RT A cases. The lowest premium available was provided by Amicus Legal with premiums from £134.71 and the highest premium available was provided by Accident Assurance, Jarvis and NFL who all quoted premiums at £500.

10. I have also contacted some of the main providers in the market to request confirmation of the premium levels charged in December 2003. I have spoken to Saturn, Allianz Cornhill Legal Protection ("ACLP") and Amicus. Copies of the attendance notes of these conversations are attached and marked "ARB4".

11. I am advised that Amicus would not provide any information about their policies without payment of a fee and as 1 obtained information from elsewhere 1 did not consider it necessary to go back to them and make the payment.

12. I am advised that Saturn would provide policies for RT A cases in December 2003 at £387. However as the premium in this case was taken out so close to issue there would be an additional 25% payable that would take the premium to £483.75.

13. 1 am advised that ACLP would provide policies for RT A cases in December 2003 at £290. However as the premium in this case was taken out so close to issue there would be an additional £ 100 payable that would take the premium to £390. The ACLP scheme is a delegated handling scheme.

14. Any of the policies set out above would have provided at least £25,000 of cover (I have taken this information from Litigation Funding and my searches of The Judge) which I am advised is the level of cover provided under the Europ Assistance policy that the Claimant entered into."

41. The attendance note of Mr Burrell's conversation with Derri-Ann Clarke (which is part of Exhibit "ARB4") is dated 16 June 2005. It begins:

"Speaking with Derri-Ann Clarke, Lamp Insurance. Informed that Lamp Insurance have now bought the ATE book from Europ Assistance but they are happy to provide details of what would be the ball park figures for a "Saturn" premium."

42. The attendance note says that Mr Burrell then explained the background of this case to Ms Clarke and continues:

"After providing the details, she indicated that a standard RTA fast track premium would be £387 although as proceedings were about to be issued they would add on a further 25%. The conflicting evidence would be a sticking point and it is possible that they would refuse to insure on that basis, especially as this was a roundabout accident. However, the fact that there was an independent witness in support of the Claimant might well mean that they would take it on and she has seen such instances go through at Saturn. She would be happy to provide further details if any more information was provided."

43. The attendance note of Mr Burrell's conversation with Aliens Corn hill Legal Protection (which is also part of Exhibit "ARB4") is dated 20 July 2005. It begins:

"AAB telephoned Aliens Corn hill Legal Protection and spoke with David White, underwriter. I explained that we were acting on behalf of the Defendant and were challenging an ATE insurance provided by Europ Assistance. He confirmed that he would be prepared to provide an indication of the likely premium and that he would be happy to do so over the telephone. "

44. The attendance note says that Mr Burrell gave Mr White the background of this case and continues:

"Mr White indicated that the fact that the claims evidence was independent slightly tipped the claim in favour of the Claimant although it was doubtful whether he personally would consider it appropriate for ATE insurance - he would have needed more information to say conclusively. He indicated that on the basis of the information provided, the case relied very much on who the Judge believed on the day and this was broadly a 50/50 situation.

After checking his underwriting guideline rates, he asked whether this was a fast track case. I confirmed that it was and advised him that a medical report had been obtained in February 2003 and it could be assumed that this was always a fast track case, with whiplash prognosis of no more than 12 months and headaches no more than 18 months.

He said that the equity premium would have been £290. I asked him whether it made a difference that the proceedings were about to be issued and the insurance was obtained on that basis. He confirmed that loading would apply although this would be no more than around £ 100.

I asked him whether they did individually underwritten policies or whether they only provided ATE insurance through their delegated scheme. He confirmed that they only provided ATE insurance through their delegated scheme."

45. On 29 June 2005 Derri-Ann Clarke (Ms Clarke) made a Witness Statement. She said that she was employed by Saturn Professional Risks Ltd in December 2003 in the Litigation Department providing after the event insurance. She said that she was currently employed by Lamp Group Limited as Business Manager and that she had been provided with a copy of Mr Burrell's Statement and wished to clarify the points made in that statement.
46. Ms Clarke said that in December 2003 the personal injury cases referred to Saturn were generally underwritten by Europ Assistance Limited and that it was not the case that Lamp Group Limited "had bought the ATE book from Europ Assistance".
47. Ms Clarke said:

"5. The standard premium at Saturn for a non-deferred fast track RTA case, conducted under a CFA and not yet issued, if accepted for insurance would have been £387 plus IPT. Any such cases where proceedings were issued or about to be issued and which were deemed suitable for insurance would have had an uplift of the premium which would typically be between 25-33%, however underwriters always have the discretion to increase the premium to whatever they consider reflects the risk involved. Needless to say, not all cases are acceptable for insurance.

6. The case in question would almost certainly have been declined for insurance since it would appear that liability was in dispute from the outset. It is quite often difficult to determine who is at fault in relation to accidents which occur on roundabouts. If this was the case in the matter in question, the chances are very high that Europ Assistance would have declined to offer cover. Insurance in such cases would only be given if liability was already agreed and only quantum and/or causation remained in issue.

7. In some cases where Europ Assistance declined cover, I would forward the papers to First Assist in a bid to assist the solicitor/client. However, First Assist are not really interested in fast track cases, but when they offer cover the premium is calculated as a percentage of the solicitor's own costs at the time the case concludes. I have seen one case where the percentage has been 40% and one at 244% but generally they appear to have been above 67% and below 119%. I suspect that had the solicitors tried to obtain cover for a one off case, rather than under a scheme, they would have found huge difficulties in finding any company to look at it other than Saturn and First Assist (through myself). I suspect Saturn would have declined it but First Assist would have considered it as a favour. If First Assist had accepted the case it is likely that the premium (when calculated by reference to a percentage of base costs) would have been very significantly in excess of £1,800 plus IPT."

48. On 3 July 2005 Mr Cox made his second Witness Statement on behalf of the Claimant and in response to Mr Burrell's Statement. He says:

"3. Mr Burrell sets out that he carried out a search of The Judge website. He does not identify his criteria or provide any information about whether the policies mentioned would be available or suitable. He also assumes that the information contained on The Judge website search is accurate and complete. In particular there is no way of ascertaining whether the insurers referred to would have accepted this case (or even if they had accepted it whether it would have been on special terms) given that, at the point when the insurance policy was taken out there was a complete denial of liability and that court proceedings were going to be necessary. I think it unlikely that this case would have been accepted on normal terms.

4. I also note that Mr Burrell has made no enquiry of or reference to Temple Legal Protection, who were (and are) one of the leading providers of after the event insurance at the material time. If this case had been accepted by Temple the premium would, as I understand it, have been broadly the same as that charged by EA.

5. Mr Burrell also exhibits various extracts from Litigation Funding. He does not set out any information about whether the policies mentioned were available or suitable. Again he assumes that the information in Litigation Funding is accurate and complete. There is no way of ascertaining whether the insurers referred to would have accepted this case (or even if they had accepted it whether it would have been on special terms) given that, at the point when the insurance policy was taken out there was a complete denial of liability and court proceedings were going to be necessary."

49. Mr Cox goes on to say that Mr Burrell does not state whether the policies he identifies met the criteria which he had listed in paragraph 10 of his first Witness Statement (see paragraph 16 above) and which he considered were specific requirements for a suitable after the event insurance product.
50. He refers to the attendance notes exhibited (as "ARB4") to Mr Burrell's Statement and to Ms Clarke's Statement. In referring to the attendance note of the conversation between Mr Burrell and Mr White at Allianz Cornhill he says that he notes Mr White's view that even on the brief facts provided by Mr Burrell it was doubtful whether he would consider the Claimant's case appropriate for ATE Insurance.
51. The detailed assessment of the ATE premium (claimed at £1,800 plus IPT of £90) commenced on 7 July 2005 when I heard the Defendant's submissions and the assessment was completed on 15 July 2005 when I heard the Claimant's submissions and the Defendant's replies.
52. The Defendant was represented by Mr Alexander Hutton and the Claimant was represented by Mr Nicholas Bacon. Both counsel provided helpful skeleton arguments and I am grateful to them for their assistance. The issues are, in my judgment, complex.
53. There was an agreed list of authorities to which I was referred. These comprised Callery v Gray (No.1) (CA), Callery v Gray (No.2) (CA), Callery v Gray (Nos 1 and 2) (HL), Claims Direct Test Cases (CA), The Accident Group Test Cases (CA), Lownds v Home Office (CA), Atack v Lee (CA), Samonini v London General Transport Services Ltd (Senior Costs Judge Hurst), RSA Pursuit Test Cases (Senior Costs Judge Hurst) and Designers Guild Ltd v Russell Williams (No.2) (Senior Costs Judge Hurst). I was referred to all these cases in the course of argument. In addition I was referred to the judgment of His Honour Judge Anthony given in the Brighton County Court on 13 August 2004 in the matter of Aston v Tuttle.
54. Mr Hutton submitted that the Claimant's choice (or rather her solicitor's choice) of A TE policy was not reasonable. It offended against the principle of "the many paying for the few". The principle of ATE insurance should be that the many pay for the few and premiums as a whole for off-the-peg policies (such as the Temple policy in Caller v Gray) should be averaged over the book as a whole. The EA policy in this case did not reflect that principle.
55. He submitted that the central difficulty with the EA staged premiums appeared to be that the insurer wanted their "cake and eat it". On any comparison with alternatives in the market, it was, he said, plain that the staged premium of £367.50 or, alternatively, a figure up to the Stage 2 premium of £787.50 must realistically be sufficient to represent a figure for the many paying for the few. In other words premiums in that region (and certainly at the very most no more than the Stage 2 premium) are sufficient, he submitted, to pay all the claims against the policy, including the lowest value pay-outs (ie, those that settle pre-issue) as well as those that are lost post-issue but not near trial and the most expensive but rare, namely those which go near to or through trial and lose.
56. However, he submitted, although the costs of all those claims, including the most expensive ones, would have been covered by a premium at Stage 1 or Stage 2 level alone, Europ Assistance then sought to add on a further £ 1,100 odd for those to go through to trial, meaning that those cases are paid for twice: once by the earlier premium and once again by the later premium. Therefore, on the EA model, the many pay for the few, but then the few pay for the few on top again. This, he submitted, was plainly unreasonable.
57. Mr Hutton submitted that it was vital to recognise that this was a standard fast track low value RTA personal injury claim. It was never going to approach even half the fast track upper limit. In Callery v Gray (also a standard RTA case where there was a significant choice of off-the-peg policies) the premium was from Temple and was a one-stage premium of £367.50 (inclusive of IPT). The Court of Appeal found at paragraph 70 of Callery v Gray (No.2):

"In the circumstances, the amount of the premium does not strike us as manifestly disproportionate to the risk. We do not find it possible to be more precise than this. So far as alternatives are concerned, Mr Callery was able to choose, with the assistance of solicitors, cover at a premium near the bottom of what was available. The premium was one tailored to the risk and the cover was suitable for Mr Callery's needs. The policy terms also had the alternative feature that they gave his solicitors control over the conduct of the proceedings on his behalf, without any involvement by a claims manager until a settlement offer was received. We have concluded that the court below was right to find the premium was reasonable."

58. Mr Hutton said that it was important to recognise that the Temple policy in Callery had a number of the features which are relied on as attractive here, including deferment of premium, costs cover if the other side made a successful Part 36 offer/payment, the solicitors' control and suitable cover (£100,000 whereas here it was £25,000). The premium was only £367.50 even if the case fought through to trial. The premium here was more than five times as much for less cover.
59. It may be helpful if I mention here that in his submissions on behalf of the Claimant, Mr Bacon referred to Mr Cox's second Witness Statement (paragraph 49 above) where, referring to Mr Burrell's statement, he says:

"4. I also note that Mr Burrell has made no enquiry of or reference to Temple Legal Protection who were (and are) one of the leading providers of after the event insurance at the material time. If this case had been accepted by Temple the premium would, as I understand it, have been broadly the same as that charged by EA."

60. Mr Bacon also referred to paragraph 177 of the Senior Costs Judge's judgment in the RSA Pursuit Test Cases where he refers to the evidence of Mr Wait (the owner and founder of Temple Legal Protection Ltd). He said:

"Our policy would have offered deferred premium and protection for that premium within the policy cover, our policy would also have been a step premium policy. All of our policies since the beginning of 2002 or end of 2001 have all been written on a stepped premium basis, both for personal injury, commercial and clinical negligence, so the key features would have been premium payable at the end, with protection for the insurance."

61. It therefore seems to me that, in view of the change in Temple's policy terms, Mr Hutton would also contend that a Temple policy taken out in December 2003 (if it had been available in this case) would have offended against the principle of the many paying for the few.
62. The other matter upon which Mr Hutton relied in his submissions about the choice by the Claimant of the EA policy as opposed to any other policy not being a reasonable one was the evidence of Mr Burrell (paragraphs 40 to 45 above).
63. He submitted that while Mr Burrell carried out a similar exercise in the RSA Pursuit Test Cases and the Senior Costs Judge had said that he derived no assistance from it and no firm data, that was in the context of cases where no off-the-peg policies were available because of the particular features of those cases: ie, they were bespoke only. He submitted that where the case is a fast track RT A case with no reason why it should not be available for an off-the-peg scheme, the exercise was of considerable assistance in demonstrating other policies available. Further, even if it could be said that one or two might not have been available for any particular reason, there were many more which would probably be available because there was no reason to suggest otherwise.
64. Mr Hutton said that it must be recalled that the burden remains on the Claimant to show that this particular premium was reasonable. Even if they say that every single one of the numerous policies on offer with dramatically lower premiums for a standard low value fast track RTA was unavailable, then they ought (he submitted) to produce evidence to justify such a surprising conclusion. The essential point to grasp from Mr Burrell's evidence (he submitted) was that there was no other premium listed at any relevant time for an RT A fast track claim which even approached the £ 1,890 claimed here.
65. Mr Hutton said that the highest other premium for a case of this type found by Mr Burrell on The Judge website, Litigation Funding or in direct discussions with insurers was £695. Furthermore (he submitted) the Claimant had produced no evidence of any other ATE off-the-peg product that costs more than £695 for this type of case, let alone anything approaching £ 1,890. On that basis (he asked) how could it possibly be reasonable to allow a premium three times as much as any other available alternative?
66. He referred to the judgment of the Court of Appeal in Callery v Gray (No.2) where the court said:

"68. Master O'Hare did his best to investigate premium rates in the market. He found that it was not possible to state standard or average premiums for different classes of business. He also found that results over several years had been uniformly poor, leading to several major increases in premium rates over those years. This led him to conclude that it was reasonable to presume as a starting point that a premium was reasonable unless the contrary was shown.

69. We do not consider it correct to start with Master O'Hare's presumption. When considering whether a premium is reasonable, the Com1 must have regard to such evidence as there is, or knowledge that experience has provided, of the relationship between the premium and the risk and also of the cost of alternative cover available. As time progresses this task should become easier. .. "

67. Therefore, Mr Hutton submitted, where the reasonableness of the particular premium is in question, the court has to have regard (among other things) to the cost of alternative cover. He referred to paragraph 265 of the RSA Pursuit Test Cases where the Senior Costs Judge said:

"If, however, the paying party can demonstrate that a cheaper policy or policies were available, the burden is then upon the Claimant to justify why the Claimant, or legal representatives selected a more expensive one."

68. Mr Hutton said it followed that where the reasonableness of the particular premium is in question, the court must have regard to (among other things) the cost of alternative cover. Thus the question of whether the premium is reasonable must, as a matter of law, involve consideration of whether the particular choice was reasonable. In this case (he submitted) there is plenty of evidence from Mr Burrell of cheaper policies probably available than £1,890 for a case which went through to trial, and precisely no evidence at all from the Claimant that there were any policies even approaching the cost of this one. Therefore he submitted that on the law, the burden is on the Claimant to justify why she (or in fact her legal representative) chose a far more expensive policy in the Europ Assistance one.
69. Mr Hutton submitted that if the Claimant had to pay the premium and had been given the choice between a succession of policies, the highest of which could only ever cost her a maximum of £695 and one which could cost her up to £ 1 ,890 for a damages claim which was never worth more than £5,000, she would not choose the one which cost almost three times as much, unless it provided astonishingly good benefits. He submitted that none of the benefits for the Claimant which this policy provided could possibly be worth that much more than all the competitor products.
70. Mr Hutton referred to the case of Anthony Baker in the RSA Pursuit Test Cases. He said that it was a far more difficult case than the present one. There were a number of difficulties in getting ATE cover and a number of providers had turned the case down. It did not fit into a neat box as it was neither RTA nor EL (and thus no helpful employment legislation) and involved alleged criminal activity. The evidence as to available other products was that a number of companies "might have provided a quotation" and no more than that. However the Senior Costs Judge found as follows at paragraphs 430 and 431:

"430. As to the case of Anthony Baker there are grounds for stating that the Claimant has not acted reasonably. Once it had been identified at the conference with counsel, that the maximum potential damages were £5,000, immediate steps should have been taken to revise the RSA proposal or to apply, through a broker, for appropriate ATE cover. The position with regard to damages had been identified at the conference on 3 September 2002 which would have given adequate time for an appropriate policy to have been identified.

431. I am in no doubt that this premium (and the potential premium when the policy was taken out) were disproportionate given the maximum level of damages obtainable. Mr Gilbert did identify a number of companies which might have provided a quotation. I find therefore that it was unnecessary and unreasonable for Anthony Baker to select the Pursuit Policy. "

71. The Senior Costs Judge concluded that the appropriate alternative policy should have cost no more than £750 plus IPT, namely £787.50. Mr Hutton submitted that similarly in this case the choice of premium which cost £1,890 was an unreasonable one. It was, he said, disproportionate to both the costs risk and the damages (where the Claimant had made a Part 36 offer of £2,672 and ultimately achieved a little over £3,300) and not justified in the circumstances.
72. In his submissions on behalf of the Claimant, Mr Bacon said that Mr Burrell's evidence did not establish that there was any alternative policy which the Claimant could have taken up. His evidence depended upon reliance on The Judge website and extracts from Litigation Funding. The website no longer operated and it was not operating at the time the policy in the present case was taken out. The website extracts (which were referred to during the hearing) were couched with all sorts of qualifications. He referred to the notes at the head of the search. Note 2 said:

"Premiums shown here are indicative only and may vary depending on a number of factors which might include the stage the case has reached whether liability is in dispute, the prospects of success etc."

Mr Bacon said that the premiums shown were "approximate" and (as indicated in Note 2) many premium "indications" are dependent on the stage which the case had reached, which for the purposes of this case was trial.

73. Mr Bacon referred to paragraphs 234 and 235 of the Senior Costs Judge's judgment in the RSA Pursuit Test Cases. He said:

"234. Mr Burrell carried out a mechanical exercise in relation to The Judge website and Litigation Funding, he merely collated the results and did not apply his mind to those results. He was not in a position to express any view as to whether any of the policies listed would actually have been available for any particular case. I can derive no assistance from his evidence.

235. As to the information contained in Litigation Funding and The Judge website, this is no more than an indication of policies which might be available in certain circumstances. As Mr Gilbert points out, the premiums on his website are "indicative only" and the website contains further warnings. Litigation Funding has similar warnings and reservations. I can derive no firm data from these sources."

74. Mr Bacon said that Mr Burrell had not said whether any of the policies to which he referred would have been available to the Claimant. In fact, he submitted, the evidence was to the contrary. He referred to the statement of Ms Clarke (paragraphs 46, 47 and 48 above) and to the attendance note of the conversation between Mr Burrell and Mr White of ACLP (paragraphs 44 and 45 above) where Mr White had said it was doubtful whether he personally would consider [the present case] appropriate for ATE insurance.
75. Mr Bacon said that the Defendant had ignored the fact that at the time the insurance was taken out in this case (10 December 2003) there was already a firm denial of liability. He submitted that the Defendant had failed to demonstrate that a cheaper policy (or policies) was available and so the threshold required to put the Claimant to proof to justify why the EA policy was selected (paragraph 68 above) had not been reached.
76. In my judgment the Defendant has failed to show that there was any alternative policy available to the Claimant having regard to the fact that liability had been consistently denied and it was clear when the EA policy was taken out that proceedings were inevitable.
77. The decision of the Senior Costs Judge in the case of Anthony Baker (paragraphs 71 and 72 above) and the premiums which were allowed in The Accident Group and Claims Direct cases are not, in my judgment, helpful in deciding the level of premium which is reasonable in this case. The reason is that in those cases it was not inevitable that proceedings would ensue.
78. I therefore find that the choice of the EA policy in this case was a reasonable one and in my judgment it is not (having regard to the evidence) incumbent upon the Claimant to justify her choice to any greater extent. The Defendant's submission that the premium payable in this case offends against the principle that the many pay for the few and that EA has charged twice for Stage 3 is not (in my judgment) correct. It is based on the assumption that a £367.50 or £787.50 risk premium would be available on the market to take this case (where liability had been consistently denied and proceedings were inevitable) to trial. There is no evidence of that in this case. I agree with Mr Bacon's submission that this contention amounts to an assertion that an insurer would have been prepared to insure the costs risks here (which he put at £3,905.25) for £367.50 ie, an 8% risk of having to payout the £3,905.25. Even the £787.50 contended for in the alternative represents, as Mr Bacon pointed out, a 20% risk of having to payout £3,905.25. That is not even consistent with the Defendant's own contention that there was at least a 33% risk of the Claimant losing. As to these figures, see below.
79. The second issue to be determined (according to the Defendant's List of Issues) is whether the premium claimed of £ 1 ,890 is a reasonable and/or proportionate sum in the circumstances of this case. If not, what is a reasonable and proportionate sum to be allowed on assessment.
80. Mr Hutton submitted that the prospects of success in this case were higher than those suggested by Mr Cox. He referred to the recent case of Atack v Lee which he said was a not dissimilar accident on a roundabout albeit much more serious. In that case:

a) Before the risk assessment was done, the Defendant had not only denied liability but had produced a statement from the only independent witness (who supported his case) who was an off-duty police officer;

b) The Court of Appeal (in a case where the prospects of success appeared far less good than in the present case) upheld a success fee of 50% and rejected the contention that the prospects were 50/50.

81. Mr Hutton said that the suggestion by Mr Cox and Mr Strange that the risk at 45 days before trial was SO/50 was not accepted. The mere fact that a case goes to trial does not (he submitted) in itself justify a 100% success fee. There are obviously (he submitted) cases where a Claimant goes to trial more likely to win than lose. Even in Alack (where the Defendant had an independent witness whereas the Claimant had none) a 50% success fee was upheld by the Court of Appeal (ie, 67% chance on liability). Here it was the Claimant who had the supportive independent witness and the prospects were markedly better than in Atack. While there was clearly some risk on liability at that stage, it was nothing like SO/50 and (he submitted) at the very least it was not less than 67%. This was borne out by the fact that His Honour Judge Bradbury had reduced the success fee to 50%. Although the success fee in this case had been set in July 2002, Mr Hutton submitted that nothing much had changed by the time the ATE insurance was taken out in December 2003.
82. Mr Hutton said that the court should consider the costs risks and the size of the claim when considering the reasonableness of the premium. In this case the claim was for £5,000 and the premium claimed was £1,890 which was about 40% of the value of the claim. This was (he submitted) disproportionate. He referred to the Senior Costs Judge's judgment in Samonini. The Claimant had entered into an ATE insurance policy costing £798 in circumstances where the damages were never going to exceed £2,000. The Senior Costs Judge had found that the premium was disproportionate. Here the premium of £1,890 was significantly more although (Mr Hutton accepted) the damages were always anticipated to amount to £5,000 rather than £2,000.
83. Mr Hutton submitted that Mr Strange's approach to the setting of an off-the-peg premium (see paragraphs 34 to 38 above) was wrong. However, adopting his approach, Mr Hutton said:

a) Mr Strange suggests that he would expect defendants' costs in fast track RT A claims to be not less than £3,000 plus V AT, and sometimes very much higher. No basis was set out for this assertion. In fact in this case the total costs through to trial (including counsel's fees and all VAT) was £1,175. This was pursuant to a fixed fee agreement between the solicitors and Norwich Union, which, he said, was common for those acting for insurance companies. Further, and in any event, if there had been no fixed fee agreement, on a time basis alone, the Defendant's solicitors' costs were £1,200 plus VAT;

b) Own counsel's fees. It was not reasonable to expect counsel to settle Particulars of Claim in a low value fast track RT A claim or to advise on such a claim. Cole mans were specialist RTA solicitors, no doubt a factor in EA's decision to underwrite this delegated authority scheme. The claim for own counsel's fees here was £500 plus VAT;

c) Other side's counsel's fees (included above);

d) Own disbursements - £ 1 ,000 appeared very high. Mr Hutton noted that the actual cost of obtaining the OP records (£50), the medical report (£270), the court issue, allocation and listing fees (£400 total) came to £720.

84. Thus, Mr Hutton submitted, it could readily be seen that Mr Strange had overestimated a number of the fees set out above (certainly in the context of this case) and there was no reason or evidence to suggest that this case was out of the ordinary. Indeed this case was actual evidence of what it cost and Mr Strange produced none. Mr Cox had produced a case (see paragraph 39 above) which was not comparable because the Claimant had been found to have exaggerated his claim (and elaborated and fabricated it) which inevitably increased the costs.
85. Mr Hutton said that it was not accepted that the total amount payable on a case such as this was likely to be £5,000 were the Claimant to lose the claim. He submitted that the actual costs in this case to which the Claimant (and thus her ATE insurer) was exposed was less than £2,500 for a case which went through to trial.
86. Mr Bacon said in reply that in this case the actual adverse costs risk (ignoring the arrangements between the Defendant's solicitors and Norwich Union) was £3,905.25. This comprised:

a) £1,200 plus VAT (£1,410) Defendant's solicitors' profit costs (taken from the Defendant's Statement of Costs for the hearing on 9 August 2004).

b) £500 plus V AT (£87.50) Defendant's counsel fixed costs (taken from the Defendant's statement of costs for the hearing on 9 August 2004).

c) £500 plus VAT (£587.50) Claimant's counsel fixed costs (taken from the Claimant's statement of costs for the hearing on 9 August 2004).

d) £ 1 ,320.25 disbursements excluding ATE insurance premium. This figure was also taken from the Claimant's statement of costs for the hearing on 9 August 2004. It was made up as follows:

	Enquiry agent's fees	£532.50
	GP records	£50.00
	Medical report	£270.00
	Court issue fee	£120.00
	Allocation fee	£80.00
	Witness summons	£30.00
	Witness expenses advanced	£25.00
	Listing fee	£200.00
	photocopying	£12.75
		£1,320.25

87. Mr Bacon submitted that it was apparent that Mr Hutton's submission that the likely adverse costs exposure in this case was not more than £2,500 was wrong. The actual figure was £3,905.25. It could, he submitted, have been a lot higher. This particular Defendant had claimed no more than 12 hours work for the whole case at the lowest grade of fee earner. A grade 3 fee earner with an hourly rate of £120 would have brought the £ 1 ,200 up to £ 1 ,440 which with V A T amounted to £ 1 ,548. That would bring the total up from £3,905.25 to £4,043.25.
88. Mr Bacon said that he accepted that Mr Strange's figure of £5,000 was £1,094 more than the actual figure in this case but submitted that for the reasons set out above the Defendant's costs in this case are exceptionally low and that this could not have been foreseen by the underwriter at the time the premium levels were set.
89. Mr Bacon said that although in the present case it could be argued that the prospects of success were 50/50, he accepted that a 60% prospect of success should be allowed (ie, as Mr Strange had assumed, a 40% risk of failure.)
90. Further support for the 40% risk of failure came (he submitted) from Atack where a 67% success fee (equating to a 60% prospect of success) had been allowed. He pointed out that the CFA in Atack did not account for Part 36 offers whereas the CFA in this case does.
91. Mr Bacon submitted that the Defendant's contention that the trial Judge's assessment of the success fee at 50% (ie a 33% risk of failure using the ready reckoner) ignored the fact that the success fee was set before there had been a firm denial of liability whereas the ATE policy was taken out after denial of liability.
92. Assuming a 40% risk of failure with risk costs of £3,904.35 Mr Bacon said the burn cost would be £ 1,561 whereas, assuming a 40% risk of failure with risk costs of £5,000, the burn cost would be £2,000. The premium claimed here of £1,800 was just £239 above the burn cost as it actually turned out to be.
93. Mr Bacon submitted that these figures were before any administration costs or profit and before IPT. He submitted that a minimum of a 25% profit mark up would be appropriate together with cover holder commissions of 35% (as allowed in The Accident Group Test Cases) making a total of 50% mark up.
94. Accordingly Mr Bacon submitted that the Stage 3 premium was reasonable. Taking the £1,561 figure and adding 50% profit mark up amounted to £2,341.50. A 25% profit mark up would amount to a total of £ 1,951.
95. Having heard these submissions and having reconsidered the evidence I am satisfied that adverse costs risk in this case was £3,905.25 as submitted by Mr Bacon. The figure is based on the actual figures taken from the costs schedules supplied by the parties for the trial.
96. I am also satisfied the correct percentage risk of failure was 40%. This was a case where (despite the Claimant being supported by an independent witness) the prospects of success or failure at trial depended upon whether the trial Judge accepted that evidence. The Defendant's legal representatives clearly thought that there was a sporting chance that he would not accept it.
97. The level of premium for Stage 3 set by EA was based on a number of assumptions which Mr Strange explained in his evidence. Those assumptions were made on the basis that they would apply in off-the-peg policies under delegated authority. These were not bespoke policies. In some cases the insurer would no doubt do better than in others. The question is, it seems to me, whether the premium charged was within a reasonable bracket. I have no doubt that it was and that the actual figures drawn from this case confirm that.
98. I have already found that the Claimant's choice of the EA policy was reasonable.
99. I have referred (in paragraph 79 above) to the Defendant's submission that the Stage 3 premium in this case offends against the principle that the many pay for the few. Mr Bacon submitted (and I accepted the submission) that an insurer would be very unlikely indeed to be prepared to insure the costs risks here (which I have now found to be £3,905.25) for £367.50 ie, an 8% risk of having to payout £3,905.25, or for £787.50 ie, a 20% risk of having to payout that sum. The EA policy which has staged or stepped premiums seems to me to have considerable advantages over single premium polices. It enables the solicitor to whom delegated authority is given to take on risks which might well not be insurable elsewhere but to give the client and the other side the opportunity to reduce the premium liability very considerably if the case can be settled at a stage earlier than 45 days before trial. Such a policy provides, it seems to me, considerable incentives to the parties to settle before too much expense has been incurred. However, if settlement cannot be reached, the insurer should be entitled to charge a realistic premium to cover all the risks inherent in a tri al.
100. For these reasons I consider that the Stage 3 premium of £ I ,800 plus £90 IPT is a reasonable premium and that it is recoverable in full by the Claimant from the Defendant.
101. If the parties do not attend when this judgment is handed down I will arrange another day when they can attend to address me on the terms of the order and on any request there may be for permission to appeal. Otherwise I will hear those submissions when I hand down the judgment.