How to fund a Clinical Negligence claim

On behalf of Attwaters Jameson Hill posted in Medical Negligence on Wednesday, December 20th, 2023

If you or a loved one have been let down by a medical professional you trusted implicitly to look after you, it is natural to want justice. However, it’s also natural to feel intimidated by the potential cost of a clinical negligence claim.

Fortunately, there are a wide range of funding options available for those seeking justice following medical malpractice – and we’ll go through a few of them in this blog.

Conditional fee agreements

Most claims are funded by a conditional fee agreement (CFA), which you’ll probably know better as a ‘no win, no fee’ arrangement.

Under this type of funding agreement, we’ll take on a case with the risk that if we lose, we will not charge for the work we have done. Aside from our own legal costs, there are usually other expenses to pay, such as expert witness fees, court fees and – in limited circumstances – the legal costs of whomever you are making the claim against (the defendant).

To protect our clients from the risk of having to pay for these expenses themselves, we arrange an insurance policy on their behalf – this means that the insurer will pay out for these costs in the event of an unsuccessful claim, provided that all the terms and conditions of both the CFA and the policy have been complied with. Even the insurance premium is self-insured and so does not have to be paid until the end of a successful case.

CFAs: costs for successful cases

Where a case is successful, we generally recover most of our legal costs from the defendant. This is because generally, clients who win a clinical negligence case are entitled to recover their basic costs and expenses from the defendant, including the majority of their insurance premium. Usually, however, there will be a shortfall as the defendant doesn’t normally pay all the costs.

To cover our own costs, we will charge our clients a ‘success fee’, which is not recoverable from the defendant. The amount we charge is established on a case-by-case basis as a percentage of the compensation awarded. However, it is limited to 25% of the compensation for:

  1. Pain, suffering and loss or amenity
  2. Past financial expenses.

If we win the case, the client pays:

  1. The success fee (limited to 25% as above)
  2. Any shortfall in basic costs that haven’t been recovered from the defendant
  3. Any of the insurance premium that hasn’t been recovered from the defendant.

To make up for the fact that the claimant will have to use some of their compensation for legal costs, the compensation awarded by the court will be uplifted by 10% in CFA cases, as per the official guidelines.

Legal expenses insurance

If you have an existing legal expenses insurance policy (which many people actually have without knowing it), then you may be able to use this to fund your claim. This type of insurance cover may be included in policies as wide ranging as car insurance, buildings insurance, medical insurance and home insurance! You may still be able to access it if the policy is in someone else’s name, for example if another member of your household is a named policy holder.

Trade union membership

If you or a member of your family belongs to a trade union or other professional body, there may be provision to fund legal costs under the membership.

Legal Aid

Legal Aid is available in very limited circumstances to clinical negligence claimants, namely where a child has sustained a significant neurological injury within eight weeks of birth due to negligence. In other circumstances, claims for clinical negligence cannot be funded by Legal Aid.

Here to support you

At Attwaters Jameson Hill, our Clinical Negligence lawyers work tirelessly to support clients in their fight for justice following incidents of clinical negligence. Please do get in touch and a sympathetic member of our team will listen to the details of your claim and outline your funding options.

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