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Funding Your Medical Negligence Claim

06 Oct 2021

Many people are understandably concerned about the potential financial implications of pursuing a medical negligence claim. The reality is that most people do not have access to the sort of money required to pay by-the hour for legal representation in complex litigation. While this might lead you to think that instructing solicitors would be unaffordable for you, the alternative options available mean that is almost certainly not the case.

Most solicitors offer a free preliminary assessment of your potential case. Once they have established that there is merit in performing further investigations, they should talk to you about funding.

What funding options are available?

Conditional Fee Agreement (“No Win, No Fee”)

More widely known as “No Win, No Fee”, the Conditional Fee Agreement (CFA) is the most used method of funding medical negligence claims. To fund a claim using a CFA, your solicitor will need to assess that your case has a greater than 50% chance of success. There will also usually be a capped success fee applied.

CFAs work on the following basis:

  1. If you lose (or the case is discontinued at any stage), then you will not be charged for your legal costs. Any expenses that have been incurred will be paid using an insurance policy, called After The Event (ATE) insurance, that is taken out on your behalf alongside the CFA. Your solicitors’ professional charges (including the success fee) will be written off along with the ATE insurance premium. In short, you will not be asked to pay anything throughout the duration of your case, and although your case has been unsuccessful you will not be out of pocket for trying.
  2. If you win, then your opponent pays your compensation plus your legal costs. Your opponent, however, is not liable for part of the ATE insurance premium or the solicitor success fee, and these are deducted from the agreed compensation. The success fee is capped by law at 25% of the damages obtained for pain and suffering and for past financial losses. Details of the payable ATE insurance premium will be provided to you prior to obtaining the policy and confirmed before you agree settlement.

Some firms also routinely ask for a further significant deduction from your compensation in the form of a “shortfall”. This is a percentage of their legal costs that they are unable to recover from your opponent following negotiations. At Hay & Kilner, other than in exceptional circumstances, we don’t charge our clients for any shortfall in our legal costs.

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Legal Expenses Insurance (LEI)

Sometimes known as Before The Event (BTE) insurance, this is usually an add on to an insurance policy that you already had at the time of the alleged medical negligence. Often it is included with home and contents insurance, or possibly with certain bank accounts or credit cards. If you are a member of a trade union, they may also have a scheme that you qualify for automatically.

The benefit of BTE insurance is that your insurer may be prepared to contribute towards certain aspects of your legal costs. Although policies do vary, this might mean, for example, that if your case is successful, you do not have to pay an ATE insurance premium or a success fee, meaning that you get more of your damages.

Legal Aid

Legal Aid is state funding for legal costs provided via the Legal Aid Agency. Legal Aid used to be more widely available for medical negligence cases but since April 2013, eligible cases are now mainly limited to those involving a child who has suffered a severe disability due to a brain injury that occurred during pregnancy/labour/delivery or within 8 weeks of birth.

Law firms must be accredited with the Legal Aid Agency to apply for legal aid funding, which is why not all medical negligence firms are able to offer this type of funding.

If your case is potentially eligible for Legal Aid then accredited law firms can help you with the application process to access the funding.

Private funding

If your case isn’t suitable for a conditional fee agreement, you don’t have legal expenses insurance, and you aren’t eligible for legal aid, a final option is to fund initial investigations on a private fee-paying basis. This option requires careful consideration of the risks involved and the likely financial outlay. However, if you decide to proceed and the initial investigations prove to be supportive, then you may be able to move onto a CFA for the rest of the case.

If you are concerned that you or a loved one may have suffered an injury as a result of medical negligence, please do not hesitate to contact us for a free no obligation discussion.