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Funding a medical negligence claim - the options

View profile for Tom Mooney
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The funding of medical negligence claims is understandably very important to clients and, in my experience, prevents some people from attempting to access justice.

I am regularly asked for reassurance from potential clients that they won’t be presented with a final bill or asked to make ad-hoc payments during the course of a claim. I therefore hope that this blog will be a useful summary as to how medical negligence claims are funded and help address some of the more common questions that I have been asked.

There are three main ways to fund a claim:

  • Legal aid
  • Legal expense insurance
  • Conditional fee agreements (often referred to as ‘no win, no fee’ agreements)

It is important to stress that, with all the types of funding listed above, the general rule is that you will not be required to make any payment towards legal costs should we be unsuccessful.

Legal aid

Legal aid is currently only available to investigate claims relating to a brain injury caused within the first 8 weeks of a child’s life.

If your case is potentially eligible for legal aid it is likely that we will first obtain all relevant medical records and have them reviewed by an in-house nurse. We will then make a detailed application to the Legal Aid Agency (LAA) to request funds to commence our initial investigations. If funding is granted, then we will provide regular updates to the LAA to request further funding as and when it is required.

If we are successful, and your claim is funded by way of legal aid, then there are unlikely to be any deductions from your compensation.

Legal expense insurance

It is possible that you might have legal expense insurance as part of an existing insurance policy (such as home and contents insurance).

If there is mention of such cover then we will liaise with your insurer to determine whether the policy covers the exact circumstances of your particular clinical negligence claim. For example, many legal expense policies exclude claims relating to delays in diagnosis.

If there is cover, and the insurer allows Stephensons to act, then you will be advised of the terms of the cover. Terms vary from policy to policy but generally there will be a capped amount of money (often in the region of £50,000) to cover legal costs and disbursements. As with legal aid, the insurer will release money as and when it is required, provided the claim continues to have reasonable prospects (i.e. it is more likely than not to be successful.)

If we are successful, and your claim is funded by way of legal expense insurance, then there will be no deductions from your compensation.

Conditional fee agreements (CFA) - 'no win, no fee'

The most common form of funding tends to be a conditional fee agreement - often known as a ‘no win, no fee’ agreement.

With a CFA, Stephensons are only paid if we are successful. However, as we are a specialist team which deals only with this type of work, we believe we are very good at identifying claims which are likely to win.

If we are ultimately unsuccessful, then the general rule is that you will not be charged for the work we have done to investigate your case. However, if we win, to reflect the risk that we are taking then we are entitled to deduct up to 25% of your compensation as a success fee.

Although we will not look to charge our fees if we are unsuccessful you will still be responsible for any expenses such as medical reports. To ensure that you are protected against such risk, before an expense is incurred, it is likely that we will advise you to take out an insurance policy. The insurance policy works in the same way as a ‘no win, no fee.’ Essentially, if we are unsuccessful the general rule is that you will not have to pay towards your policy. However, if we win, you will need to make a contribution towards the policy from your compensation.

If you have a potential medical negligence claim and would like to discuss it further with our specialist solicitors please call us on 0161 696 6165 or complete our online enquiry form and we will contact you directly.