Medical Negligence and Personal Injury claims: what you need to know podcast series
In the second episode of our Medical Negligence and Personal Injury claims: what you need to know podcast, Laura Sylvester and Aideen McGarry speaks about funding options for making a medical negligence claim or a personal injury claims. They discuss the most popular method of funding a claim, which is a conditional fee agreement, otherwise known as a ‘no win no fee agreement’.
If you would like to download this podcast, please click here.
You can access episode 1 of this podcast series: Limitation period here
Read the transcription
Aideen - In this podcast we will discuss the most popular method of funding a personal injury/medical negligence claim, which is a conditional fee agreement, otherwise known as a ‘no win no fee agreement’.
Bear in mind that there are other potential options available to fund claims of this nature, which we will discuss in another podcast.
There are three types of costs associated with a personal injury claim, the first is your legal team’s costs, the Defendant’s legal team’s costs and there are also third party costs such as medical expert’s fees and court fees.
QOCS (qualified one way costs shifting):
Laura - The basic principle in litigation in England and Wales is that the loser pays the winner’s costs. In April 2013, qualified one way costs shifting or QOCS for short, was implemented for personal injury claims.
The premise of QOCS is that if you lose your claim, you will not have to pay the defendant’s costs.
There are some exclusions, where QOCS will not apply and the most common exclusions are:
- where there are no reasonable grounds for bringing the claim
- where the claim is found to be fundamentally dishonest and thirdly,
- where you fail to beat a Defendant’s offer to settle the claim.
If QOCS does not apply, then you can be ordered to pay some of the Defendant’s costs.
Aideen - So moving on to your legal team’s fees. This is where the ‘no win no fee’ agreement comes in. The important point to take home is that if you lose your claim you do not pay a penny. If your claim is unsuccessful then your solicitors essentially write off the costs they have incurred in running your claim. This is obviously a risk for the solicitors and so your legal team will need to be confident that your claim has good prospects of success before agreeing to act for you.
If your claim is successful, there will be deductions made from your compensation. To reflect the risk involved in agreeing to act on a ‘no win no fee’ basis, solicitors are entitled to deduct a success fee from your compensation.
This is however capped at 25% of the compensation you are awarded for general damages and past losses. General damages is compensation for your pain, suffering and loss of amenity, past losses are things like loss of earnings or past care costs you have incurred prior to the case concluding. In other words no deductions will be made to compensation awarded for future losses e.g. things like medical treatment you may need in future.
In addition to a success fee, a deduction may also be made from your compensation in relation to shortfall. What is shortfall? As Laura explained, if your claim is successful, the Defendant will be responsible for your solicitors’ costs. However, there is sometimes a shortfall between what is recovered from Defendant and the costs incurred by your solicitors. In these cases a deduction may also be made from your damages to cover this shortfall.
Your solicitor should always discuss in advance any deductions to be made to your damages, and explain clearly how these have been calculated.
ATE (after the event policy):
Laura - To protect you from having to pay any third party costs that Aideen referred to earlier and to protect you against having to pay any of the Defendant’s costs, you will need to obtain what is called an after the event insurance policy.
This insurance policy provides fantastic protection for you because this will kick in if you find yourself having to pay any third party costs or defendant’s costs.
If you are unsuccessful with your claim, you will not have to pay the insurance premium.
However, if you win your claim, you will be required to contribute to a portion of the insurance premium out of your damages. The Defendant then pays the remaining part of the premium.
Aideen - So hopefully this podcast has shed some light on how a ‘no win no fee agreement operates. However, funding a personal injury claim is by no means straight forward. A specialist solicitor will however always be able to discuss funding in more detail with you.
About the speakers
Laura Sylvester is a Senior Associate in the Medical Negligence and Personal Injury team. She has a broad range of expertise, with experience including brain injury claims relating to children with cerebral palsy; colorectal/abdominal and gynaecology claims; and late diagnosis of infection cases and fatal claims. Laura acts for children and adults from all walks of life and she has received praise from clients about her professionalism, together with her ability to act in a sympathetic and supportive manner and she has experience of guiding clients through the legal process whilst understanding the needs of her clients.
Aideen McGarry is an Associate in the Medical Negligence and Personal Injury team. Aideen has experience working on high-value clinical negligence and personal injury claims. She has acted for clients in claims against their GP, hospital or health providers in relation to injuries suffered as a result of wrong treatment, surgical error, delay or missed diagnosis. Aideen has also represented clients injured in road traffic accidents, accidents at work and accidents on public property.