Prince Harry’s High Court defeat to the owner of the Daily Mail could send legal insurance premiums soaring, experts have warned, after the Duke and six other high-profile figures were left on the hook for an uninsured bill of £19m.
The Duke of Sussex, Sir Elton John and his husband, David Furnish, actresses Liz Hurley and Sadie Frost, campaigner Doreen Lawrence, and former Liberal Democrat MP Simon Hughes brought a lawsuit against the Daily Mail’s publisher in 2022 claiming serious privacy breaches dating back over 30 years.
The group had purchased After the Event (ATE) insurance, which insures the legal costs tied to litigation, to cover £16.2m of Associated Newspapers costs in the event that they lost the privacy case.
However, the costs ruling on Friday meant the Daily Mail group could attempt to recover the entire £34.5m.
Judge Matthew Nicklin said in the costs ruling he “decided not to impose a ceiling on Associated’s recoverable costs” despite their scale seeming “excessive”. He added the amount being claimed had given “rise to real concerns as to whether all of the costs now claimed by Associated were reasonably incurred and are reasonable in amount.”
The cohort of celebrity claimants were ordered by the judge to pay the interim costs of £9.5m, almost £5m above the amount originally budgeted by the court, by 4pm on Friday 28th August, to Associated Newspapers.
Nicklin also ordered the costs to be assessed on an indemnity basis, a more favourable ruling for the publisher which could increase the amount it ultimately recovers.
Nick McDonnell, director and costs lawyer with legal costs firm Kain Knight, told the potential payout may cause insurers to more closely scrutinise future cases before offering cover.
“This case may prompt ATE insurers to factor more heavily into their underwriting the risk of an indemnity costs order, particularly in complex group litigation where that can significantly increase exposure beyond an opponent’s approved budget,” he said.
McDonnell added that this might cause insurance premiums to rise.
“If that perceived risk translates into higher limits of indemnity or greater pricing for the additional exposure, premiums may inevitably rise, raising a wider question as to whether adequate ATE cover remains affordable for claimants and ultimately, whether some otherwise viable group claims become more difficult to pursue,” he said.
Rocco Pirozzolo, managing director and underwriting director of City insurance firm, Harbour Underwriting, told the decision “will give pause for thought for the market as once cover is in place, the insurer has no control over how a case is run. Given that, perhaps pricing should be increased to reflect the risk of indemnity costs being ordered.”
‘Insurers will start asking harder questions’
Typically when assessing a case for ATE insurance, underwriters weigh in on the legal risk and likelihood of winning the case, and most insurers require an independent assessment showing a 60 per cent or higher chance of winning the case, and will also ask for a formal opinion from the claimants barrister.
Mark Borkowski, a leading PR strategist and crisis and reputation consultant, told “insurers will start asking much harder questions” following this case.