There are a number of ways in which to fund a clinical negligence claim including public funding, legal expenses insurance, a Conditional Fee Agreement (“no win, no fee” agreement) and private funding.
This is otherwise known as Legal Aid. Since April 2013, the scope for cases to be funded by Legal Aid is now much narrower. Legal Aid is now only available in cases where:
- the child is severely disabled; and
- the child suffered a neurological injury; and
- the negligence occurred within 8 weeks of the birth.
In the context of meningitis, an example would be if a new born baby contracts meningitis as a result of undiagnosed and untreated group B strep at birth and subsequently suffers a brain injury as a result.
Even if Legal Aid is a possibility, it is not a certainty. If your solicitor thinks that you may be eligible for public funding they must make an application to the Legal Aid Agency, who will take into account a number of factors, such as the strength of evidence, financial circumstances and the degree of injury sustained before deciding whether to grant Legal Aid to investigate the claim.
Legal expenses insurance
Many people have Legal Expenses Insurance (LEI) attached to one of their insurance policies, such as car or home insurance. Sometimes LEI will cover not only the policy holder but his or her family.
Not all polices will cover medical negligence and, as such, it is best to contact your insurance provider to clarify whether you are able to use your existing insurance.
Often, your insurance provider will have a preferred solicitor to whom they will refer you. This is known as the panel solicitor. Regardless of what your insurance provider says, you do not have to use this solicitor. Panel solicitors often do not have the required expertise to deal with a complex medical negligence claims. If you have legal expenses insurance cover, you have the freedom to choose whichever solicitor you wish. If you are concerned about this discuss it with your chosen solicitor who will advise on the next steps to take.
Conditional Fee Agreement
If there is no LEI or public funding available, your solicitors may consider entering into a Conditional Fee Agreement (“no win, no fee”). As the name suggests, if your case is unsuccessful there should be nothing for you to pay. If your case is successful, your solicitor is entitled to take a percentage of your overall compensation, known as a Success Fee. There is a strict rule that solicitors cannot take more than 25% of past and general damages for the success fee. However, be aware that some solicitors may seek to recover other costs from you. They should be upfront with you about how much this is likely to be, however, always ensure that you are aware of any potential costs and you are comfortable with these.
Your solicitor will look at the information you have provided and will try to make an assessment of the likelihood of your cases succeeding. If this is less than 50% they will not offer you a no win, no fee agreement.
If none of the options above are available, you could opt to pay privately for a solicitor to investigate your case. The solicitor should give you a clear estimate at the outset and agree with you limits for each stage of the case.
However, it is important to remember that if a solicitor is not willing to offer you a no win, no fee agreement it is probably because they are not confident in the prospects of the case being successful, and, as such, it is risky to pay privately.
Clinical negligence cases are long-running and expensive, and it is important to consider whether pursuing a case in these circumstances is in your best interest.
Whatever funding method you are using, it is a good idea to ask whether there is any possibility of being required to pay something during the case or at the end. Different firms offer different arrangements for the same funding method. Some firms expect clients to pay expenses during the case while others will fund these themselves. Some firms also deduct various fees and expenses from the compensation awarded if the claim is successful. If so, you are entitled to an estimate of those fees.
All solicitors accredited by AvMA agree to be open and honest with potential clients from the start about charging policies and means of funding legal work in a way that clients can understand and is in their best interests.