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Misconceptions around ATE insurance, litigation privilege

By Kirsten McMahon, AdvocateDaily.com Managing Editor

While an after-the-event (ATE) insurer works closely with its partner lawyers and law firms, its involvement will not breach solicitor-client privilege or interfere with the trajectory of a case, says Dominique Zipper, Director of ATE with legal expense insurance company DAS.

“I think there’s a misconception in the market that any engagement with an ATE insurer will breach solicitor-client privilege — which is not true,” Zipper tells AdvocateDaily.com.

“We do ask that our policyholders provide us with information that is reasonably necessary for us to assess the claim, if a claim is made on the policy, however at the point of issuing a standard policy, we require minimal information,” Zipper says.

Joanna Milnes, ATE Business Development Specialist with DAS, adds that the client is essentially authorizing the insurer to receive necessary documents when they opt into a policy.

“If they make a claim because they are unsuccessful at trial, they are authorizing us to obtain certain documents — but we don’t get involved in terms of assessing the case,” she says.

Plaintiff Cost Insurance is an ATE policy, provided by DAS, that fully protects a client against their opponent’s adverse costs and their own disbursements, should the case fail or be abandoned.

Milnes says DAS works with lawyers and firms across Canada, and its underwriting process involves looking at what a firm’s intake procedure is, how clients are vetted, and its performance history.

“We also look at the structure of the firm — things like the ratio of support staff to lawyers and the number of junior lawyers to senior partners — to ensure the firm is well resourced to run a trial and still take care of the rest of its files,” she says.

DAS, the first company of its kind to enter the Canadian market, has been offering legal expense insurance in Canada since 2012, and that experience and breadth of claims data also helps it to accurately underwrite and determine the pricing for these products, Milnes notes.

Once the firm has been assessed, and both parties agree to work together, a contract is signed, which sets out the obligations of the law firm as well as the insurer.

“As part of their contract with DAS, the lawyer is obligated to advise DAS of the prospects of the case, and we rely wholly on the lawyer's judgment in making that assessment. That obligation extends throughout the life of the case," Zipper says.

“However in return, we do not get involved in terms of assessing whether a case has prospects for success,” she says, noting that when DAS decides to work with a firm, DAS is placing trust in the firm's judgment as to whether a case will be successful.

Milnes says once the contract is signed and DAS has received file applications from a firm, there would be no further involvement unless the file is unsuccessful.

“If a file is unsuccessful and falls within one of the insured scenarios, the law firm or lawyer can make a claim on behalf of their client for disbursements or adverse costs,” she says. “We make sure the process is as seamless and efficient as possible, and we provide firms with a claims guideline which sets out all of our insured scenarios and the documents required to process the claim.

“It’s basically a one-page document staff can refer to whenever they submit a claim. It’s quite simple,” Milnes says.

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