Medical Negligence and Personal Injury claims: what you need to know. Episode 3 - Funding a claim, part 2

In the third 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 claim. They discuss methods of funding a claim, which include private funding, Before the Event (BTE) insurance and legal aid.  Laura and Aideen discussed conditional fee agreements, otherwise known as a ‘no win no fee agreement’ in episode 2 of this series.

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• Episode 1 - Limitation period
• Episode 2 - Funding a claim

Read the transcription

Private funding

Aideen: Privately funding a clinical negligence claim is very rare. The costs involved can be enormous, and the risk of losing the claim and not recovering these from the other side is so great that few clients would be wealthy enough to risk this.

The one scenario where we might advise a client that it is in their best interest to privately fund a claim is if the claim is exceptionally strong, and the client has enough liquid funds to finance a claim.  In those circumstances if the claim was successful the client would retain all the damages, and no deductions would be made for a success fee and insurance premium, like there is with a no win no fee agreement.

BTE Funding

Laura:  Sometimes, at the time of taking out a household contents insurance policy or some other form of insurance policy, you may have ticked a box which includes “Legal Expenses Insurance”.

This may mean that your insurance provider will cover some of the costs of investigating a clinical negligence or personal injury claim. This is referred to as “before the event” because you already had insurance in place at the time of the injury, as opposed to “after the event”, which is insurance taken out after the injury has occurred.

Should the worst happen and you find yourself having to consider bringing a claim, the easiest way to check for insurance cover, is to contact your provider and ask them whether your policy covers legal expenses for the type of claim you wish to bring.

Most banks and insurance providers have a panel of Solicitors that they recommend to their clients. Technically, your insurance provider can require you to utilise their panel member firm until proceedings are issued at Court. After that time, you can instruct your own Solicitor of choice. However, most banks and insurance companies are happy for you to instruct a Solicitor of your choice – it is best to ask them and discuss this with them.

If you have insurance, what is covered will depend on the specific terms and conditions of the provider. However, in most cases, if you are successful with your claim, you would seek to recover your legal costs and disbursements from your opponent. If you were ordered to pay any of your opponent’s costs, your insurance policy would meet that outlay, up to a maximum limit.

If you were unsuccessful with your case, the provider will pay your own legal costs and disbursements and any opponent’s costs that become payable, up to a maximum limit. This can be anything from £50,000 to £100,000 and is often sufficient to cover the costs of investigating the claim and establishing the prospects of succeeding with the case.  It may then be necessary to increase the costs reserve or to seek an additional funding arrangement which your Solicitor will advise you about.

Legal Aid

Aideen: Changes to the law in 2013 mean that there are now only very narrow circumstances in which legal aid will be granted for a clinical negligence claim, those are claims involving a neurological injury, as a result of which the Claimant is severely disabled, but the clinical negligence must have occurred when the Claimant was in the womb or within 8 weeks of birth.

In practice this limits legal aid to cases involving cerebral palsy at or around birth. Sadly in real life clinical negligence resulting in severe neurological damage is not limited to the 8 weeks after birth.  For example there may be a delay in diagnosing and treating meningitis in a young child leading to severe brain damage.  That young child would not be entitled to legal aid.

Your solicitor will make the application to the Legal Aid Agency on your behalf. Your solicitor will need to have a contract with the LAA.

The LAA agency then considers whether the Claimant is financially eligible, this is rarely an issue as this is assessed on the child’s own means. The LAA also considers the merits of the application.

The Legal Aid agency prescribes rates for lawyers and the experts who give evidence in a clinical negligence claim. The rates payable to experts are much lower than those commonly commanded by reputable experts, which makes it challenging to instruct the best experts to give evidence in a claim.

In addition the Legal Aid Agency has to approve the majority of spending claims they are funding which can lead to delays.

Your solicitor should discuss the pros and cons of funding a claim with legal aid versus a ‘no win no fee’ agreement.

Conclusion

Laura: Funding is a complicated area and your Solicitor will be able to talk you through your options and what method of funding your case is best for 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.