The potential multimillion-pound gap between the Duke of Sussex and his six co-claimants' after the event (ATE) insurance and Associated Newspapers Limited's (ANL) claimed costs does not necessarily mean too little cover was arranged, according to an ATE underwriter.
Instead, the case raises a more difficult question for brokers and insurers: at what point during long-running litigation does a changing costs picture justify increasing the insurance limit, and will additional capacity still be available when it does?
Rocco Pirozzolo, managing director and underwriting director at Harbour Underwriting in London, said the reported £16.2 million of ATE cover appears to have developed alongside the costs information available during the litigation.
"Insurers react to the request made for cover – and it seems that the cover of £16.2m was built and incrementally increased by reference to the approved budgets and the costs information Associated Newspapers provided," he said.
That matters after Associated Newspapers was awarded indemnity costs, with the publisher putting its total costs at around £34.5 million.
Pirozzolo pointed to an exchange identified by Nicklin on 5 November 2025. The claimants asked ANL to confirm that it would not seek to recover above budget. ANL did not accept, and the claimants made no application to the court.
The exchange came against a wider backdrop of costs budget revisions during the litigation, with Senior Master Cook, supported by Mr Justice Nicklin, noting in December 2025 that the claimants might need to reassess their ATE cover as substantial costs continued to mount ahead of trial.
That raises the question of whether the £16.2 million limit could have been revisited at that stage. Pirozzolo said it was questionable whether £34.5 million would then have been contemplated, while there was also no certainty that the necessary additional cover would have been available.
The distinction is important for brokers advising on long-running, multi-claimant litigation. Changes in the costs picture may prompt a limit to be reconsidered, but the eventual exposure can still be difficult to predict and sufficient additional capacity may not necessarily be available.
ANL's £34.5 million figure is also its claimed costs rather than the amount it will ultimately recover. Nicklin described those costs as "exceptionally high", leaving the eventual size of any uninsured exposure dependent on the assessment.
Even if ANL's claimed costs are substantially reduced, Pirozzolo believes the £16.2 million of reported cover could prove insufficient. Using a hypothetical 35% reduction, he calculated that recoverable costs of £22.42 million would still leave a £6.22 million uninsured exposure.
"Associated Newspapers would then be able to pursue the claimants personally for this shortfall," he said.
The size of that gap is only part of the problem. Pirozzolo said costs would ordinarily be payable within 14 or 28 days of an order, potentially leaving the claimants having to find their share of any uninsured amount quickly.
"The issue becomes whether the claimants would have such sums readily available to pay this shortfall within this timescale, even if divided amongst the number of claimants."
The latest development follows questions over whether criticism of the way the litigation was conducted could itself jeopardise the claimants' insurance. Pirozzolo previously told Insurance Business UK, following the original court loss, that dishonesty or improper conduct by an insured claimant could potentially allow an insurer to walk away. He does not believe Nicklin's latest ruling crosses that threshold.
"Although the wording of the policy would need to be considered, in my view, the awarding of indemnity costs would not affect the cover responding to pay Associated Newspapers' costs – with the immediate payment being the sum of £9.54m by 28 August. Although Mr Justice Nicklin was critical of the conduct of the case, he did not find dishonesty or improper conduct by the insured claimants themselves."
That leaves the more immediate insurance issue not whether the ATE policy responds, but whether its limit has kept pace with a developing costs exposure. For brokers, the difficulty is that the point at which additional cover may need to be considered can arrive well before the eventual liability is known, and without any certainty that sufficient additional capacity will be available.
