ATE will be recoverable, in principle, under any order for costs

 

Costs Judge Leonard has dismissed an argument by a Defendant that an ATE Premium is only recoverable where the costs order specifically makes provision to that effect. It also dismissed an argument that a Tomlin Order could not amount to an "order for costs". 

 

In Dance v East Kent University Hospitals NHS Foundation Trust & Ors [2022] EWHC 2198 (SCCO) (08 April 2022) it was held by the Court that "a recoverable ATE premium will, subject to the normal principles on the assessment of costs, be recoverable under any order for costs (whether deemed or actual) without any need for the order, CPR Part 36, or any other part of the CPR to make further provision." 

 

On the Tomlin Order point it was held that "it is an established principle that a Tomlin order may incorporate effective provision for the payment of costs, as long as it is be incorporated in the body of the order rather than the attached schedule." 

 

Costs Judge Leonard referred to the comments of Lewison LJ in McMenmy: 

 

This should now put this technical argument to bed and allow normal serivce, insofar as the principle of recovery of ATE Premiums concern, resume.