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Useful Information on Funding Clinical Negligence Claims

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    A blog setting out key facts and information about the funding methods available for clinical negligence claims.

    By Joachim Stanley

When you are considering bringing a clinical negligence claim you need to be aware of the options available to fund your claim.  Understanding your options will leave you feeling safe in the knowledge that your claim is being investigated and funded in the way that is most suitable for you.

In April 2013 the government introduced a number of changes to the way in which clinical negligence claims are funded.  The issue of funding is naturally a great concern to people when considering making a claim and as a clinical negligence lawyer it is one of the most frequent questions I am asked.   We are now over a year on from the changes being introduced and therefore I thought it would be helpful to set out the basic facts about the different ways of funding clinical negligence claims.

LEGAL EXPENSES INSURANCE (LEI)

This insurance is often an add-on to other existing insurance policies.  This option must be considered first and may be available to fund your clinical negligence claim. Not everyone will have this type of insurance but if you are not sure, the best place to look will be on your existing insurance policies schedules, e.g. on your house building or contents insurance.  It is often the case that people have this insurance without even knowing it.

If you are still not sure whether you have LEI you can contact your insurance company who will be able to tell you whether you have it and whether it would cover you for your claim. Even if you do have LEI your policy may still not cover your specific claim.  If this is the case, or you do not have this insurance at all, there are still alternative funding options available to you so please keep reading.

LEGAL AID

From April 2013 the government restricted the eligibility of those who qualify for legal aid funding for clinical negligence claims.  The current position is that only children who suffer neurological injuries around the time of their birth or in the first 8 weeks of life will qualify for legal aid funding unless the case is exceptional in some way.  Unless your injury falls into the new eligibility criteria you are unlikely to qualify for legal aid and you will need to consider the next options.

CONDITIONAL FEE AGREEMENTS (CFA) (NO WIN, NO FEE AGREEMENTS)

A CFA is precisely what it says – an agreement which means that if you do not win your case then you will not have to pay any fees.  If your case is not successful then we will waive our fees and you will likely have an insurance policy in place to indemnify you for any of your opponent’s costs that you may be ordered to pay.  It is therefore a very reliable method of funding a claim and you can feel reassured that you will not be left with a bill to pay if you do not win your case.

If you win your case then the majority of your legal costs are paid by your opponent.

CFAs have additional elements which are usually not relevant if your claim is funded by legal expenses insurance or legal aid.  These are:

1. A success fee – which is the fee charged to reflect the risk taken by solicitors that if a claim does not succeed then they will not be paid at all.

2. An insurance policy, for which a premium is paid at the end of a case, to ensure you are fully protected from having to pay any costs if you do not win your case.  The policy also covers its own premium in the event that a case is not successful so there is no fee to you at all.

Before April 2013 the costs you could recover from your opponent would also include the success fee and the premium for the insurance policy.  We were able to therefore guarantee to clients that they would keep all of their damages.

In April 2013 one of the major changes brought in was that Claimants can no longer recover from their opponent the solicitor’s success fee or the majority of the insurance policy premium. These costs must now be recovered from compensation.  These payments are however subject to specific limits which we will make clear to you from the beginning to ensure you can be certain of receiving the majority of your compensation.

PRIVATE PAYMENT

This option is the traditional agreement between a solicitor and their client. You would pay a retainer, usually a fixed fee. The amount would cover your initial legal fees and the expenses needed to investigate your claim and provide you with initial advice as to the likely prospects of your case succeeding. Depending on the outcome of these investigations we may then be able to consider one of the alternative funding methods explained above for you

QUESTIONS ABOUT FUNDING

If you are looking to make a clinical negligence claim it is important that you understand which funding methods are available to you and which one is the most suitable for you and your claim.

The Clinical Negligence Team has a dedicated team who are experienced in finding the right finding options for you and your claim. We will ensure that you are well informed of your options and that the best funding method is identified for you.  If you have further questions then please contact us today and we will be happy to advise you further on your specific circumstances.

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