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Construction Disputes

At TheJudge, we have secured risk transfer terms for a broad mix of construction cases. Whether we are engaged by developers, public or private sector clients, we recognise the complexities of construction litigation.

Counterclaims and multi-party litigation is just one of the typical hurdles to overcome when broking appropriate risk transfer tools for clients engaged in a construction claim. Whether a client requires litigation insurance and/or Third Party Funding, we don’t just seek to secure a competitive deal in terms of price, but also in terms of policy coverage. Policies can vary enormously in how they respond to the different potential outcomes of multi-party claims. It is therefore imperative for clients to know that they have the necessary cover, tailored to their specific circumstances and risk.

Whether the claim is being litigated by way of Arbitration (including international arbitration) or in the Technology and Construction Court (TCC), with a requirement of £50,000 or £5m of litigation insurance or funding, we know which markets to approach and how to negotiate favourable terms.

It is highly likely that if we are able to secure offers of ATE insurance and/or Third Party Funding for your construction dispute, the terms will be on the basis of deferred and conditional upon success payments, meaning that neither insurers nor funders earn a penny if the case is unsuccessful. With ATE insurance, if the case succeeds, the premium should be recoverable from the opponent along with the legal costs (if the case is being litigated in England & Wales).

To discuss your construction litigation case please contact, .(JavaScript must be enabled to view this email address) or .(JavaScript must be enabled to view this email address).

Q and A

How does the ATE Premium Work?

Although ATE premiums vary significantly, there are certain common features:

The premiums brokered through TheJudge are generally deferred and contingent upon success, meaning that the premium is only payable if and when the dispute is resolved in the client’s favour.
TheJudge is typically able to negotiate premiums which increase the closer the case gets to Trial or which are discounted significantly if the case settles early.
For litigation pursued in England and Wales, the ATE premium is a recoverable cost under s.29 Access to Justice Act 1999, subject to a test of reasonableness.

Is ATE only relevant to financially distressed litigants?

ATE is relevant to any party involved in or contemplating litigation. Whilst it can be used to level the playing fields between unevenly matched opponents, many of the world’s largest companies also regularly use ATE to hedge their legal cost exposure and bring increased certainty to the legal spend, especially at a time when legal budgets are under pressure.

Does the instructed solicitor need to act on a CFA in order to secure insurance for the client?

There is no requirement to act on a conditional/contingency fee basis.

What is the role of TheJudge?

As an independent broker, it is our role to work for the client in sourcing and negotiating suitable insurance. To do this, we identify and approach a number of potentially suitable markets. Our aim is to obtain several offers where possible, which is important to increase the chances of securing terms, whilst ensuring that any premium incurred is competitive.

For cases being litigated in England & Wales, our market search is vital to provide evidence of market comparables, should the reasonableness of the premium be challenged by the opponent at a costs assessment. We are market leaders in providing premium recoverability support and have had our evidence accepted at numerous costs assessments, including SCCO hearings.