Comments were invited on all consultation papers. The idea of the recoupable premium and success fees came from the LCD and Geoff Hoon. Thus you are fighting at the top level of government. Two thirds of respondents to the consultation paper supported the premium being recoverable. The government did not want to spawn satellite litigation.
Defendants can challenge the premium.
As far as after the event insurance is concerned you must bear in mind the needs of running a business. The companies want to make a profit. After the event insurance was not ill thought through but was devised after extensive consultation. FOIL's position is that there should be no recovery before proceedings. That would certainly impact on the AE market.