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Will you get access to justice?
The next hurdle is funding. Clinical negligence claims are particularly expensive to litigate because of the time needed by your solicitor to obtain and investigate the medical records, find a suitable medical expert or experts, consider the expert’s opinion and, possibly, instruct a barrister. Initial investigation costs alone could exceed £5,000. In the rare case which goes to court, with medical experts giving evidence on each side, your own costs could well exceed £100,000 and the defence costs could be almost as much. So the total financial risk could be £200,000.
If you win, most of your costs, provided they are reasonable, would be recoverable from the defence. If, however, your claim failed then under our legal system you would be ordered to pay the costs of the successful defence. If you are funding the case personally that would be in addition to your own costs. Thus, until quite recently a relatively minor injury could, once it got into the hands of the legal process, become a human tragedy of horrific proportions.
Following government reforms over the last few years it is now said that there is access to justice with minimum risk. To consider some possible options:
Public funding (legal aid)
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When your solicitor explains how you finance your claim he will first consider whether you may qualify for public funding through the Community Legal Service Fund (legal aid). Provided the claim has a reasonable prospect of success (over 60 per cent), if you have no income, or if your disposable income after expenditure on necessaries is below a certain amount or if the claim is made by an infant or a mental health "patient", your solicitor may, if the firm is a Community Legal Service Supplier, apply for funding for Legal Representation. If successful your solicitor may obtain funds under a three-stage process which would cover, initially, Investigative Help, and, subject to the result of that investigation, Full Representation.
The Legal Services Commission will require an assessment of the case from the solicitor and, quite possibly, from an experienced barrister. It is a bureaucratic process and decisions take time to be made. Also, because of criticisms of the fact that legal aid is granted on the recommendation of the claimant’s legal advisers the Commission sets an incentive to run only cases with a reasonable prospect of success in that the solicitor is paid a fee of £75 an hour as compared with the normal rate of £150 per hour. If the case is won or settled on favourable terms to the claimant, the legal aid fee is increased.
If you do qualify, unless you are a child without any income, you may still have to make monthly graduated contributions to your costs and they could be onerous – and irrecoverable if you lose. And remember that legal aid will not cover NHS complaints or representation at a coroner’s inquest. Click on www.legalservices.gov.uk.
If you do not qualify for legal aid your solicitor, if he is experienced, may have a number of other creative ways in which your claim could be funded. Unless you are wealthy enough to take the financial risk entirely yourself the emphasis on all funding methods is payments by result so a solicitor has no interest in taking on a case which is hopeless.
Conditional fee agreement (CFA)
If your solicitor believes that you have a good case, typically around 80% chance of success, in which likely damages will exceed likely costs, he or she may offer to act on a "no win - no fee" basis called a "conditional fee agreement" or CFA. This represents a considerable risk to the firm so, unless the solicitor is very experienced in assessing the risks in clinical negligence cases – and prepared to take the risk - it is unlikely that a CFA will be offered until the medical records have been obtained and a medical expert has made an initial report.
The solicitor should explain to you fully the terms of the CFA agreement which are complex. Put simply, if the solicitor wins your case he will take an uplift in the fees according to how he assesses the risk. The maximum uplift is 100% of the fees and there is a voluntary limit of 25% of the total damages. If he does succeed in winning your case the uplift, if it is reasonable, will be paid by the defence, it will not come out of any damages awarded to you.
When the “no win, no fee” arrangements became effective in personal injury cases, some solicitors (not unexpectedly) put in for 100 per cent uplifts in just about all cases. However these claims were opposed, mainly by the insurance industry, as being unreasonable and extortionate, as a result uplifts are frequently reduced by the court.
Nevertheless, in view of the high risks in clinical negligence cases, claims for a 100 per cent uplift are usual and certainly one of these has been upheld.
What if your solicitor loses?
If your case is lost you pay no fees to your solicitor - he has taken on this risk - although you must pay the firm's "disbursements", ie counsel’s fees, experts’ fees (and these could be onerous). You will, however, be liable for most of the defence costs which, as mentioned above, could well be over £100,000. It is essential, therefore, that you are insured against this liability. It may be that you already have legal expenses insurance – termed “before the event insurance” - which could cover this. Your solicitor will check for this in your householders, motor or legal liability insurance policies. Are claims for medical negligence covered? On what terms?
If there is no “before the event insurance” you must obtain "after the event" insurance which is expensive. The premium will depend on the risk of your case failing as assessed by the insurer. In complex clinical negligence litigation premiums can be extremely high – £6,000 to £100,000 or more. But if you win your case that expense may be recoverable from the defence provided that the insurance cover could not have been obtained substantially more cheaply with another insurer.
Some solicitors maintain that they are unable to obtain after the event insurance for clinical negligence cases at any price. However, as with most insurance other than life insurance, the availability and premium will depend on the individual insurer’s assessment of risk and policy.
New insurance product
A new after the event insurance product, RemedyLegal, developed specifically and exclusively to provide after event cover for clinical negligence claims funded by conditional fee agreements, was launched on June 23, 2008 with the following special features:
Experience has shown early independent case assessment is vital; it saves time and money for lawyers, clients and the health service. There is an assessment fee of £250.
Their pricing structure is simple: the cost of the premium is 20% of the cover (excluding any tax); there are 4 bands:
£20,000 insurance cover for £4,000 premium
£40,000 insurance cover for £8,000 premium
£60,000 insurance cover for £12,000 premium
£80,000 insurance cover for £16,000 premium
There is also an own solicitors’ costs option of £3,000 for an additional premium of £1,000 (excluding any tax).
Further details: www.remedylegal.co.uk.
The top clinical negligence solicitors may have authority from an insurance company to issue binding insurance cover themselves. You might well take this as an endorsement of the firm’s expertise and success rates.
With some solicitors, even with a CFA you must pay up front the initial investigation costs, which could be anything between £1,000 to £5,000. However, this is not true of all firms. One well-known leader in the field, Gadsby Wicks, of Chelmsford, who specialise solely in medical accident claims, does not take any money from a client unless and until the firm wins and then only from the compensation to make up any shortfall in the costs obtained from the defendant which is, of course, also what the Legal Services Commission would do if you were legally aided. Most leading solicitors have creative financing schemes which they can offer and will explain to you.
You do need to know that if you do not disclose all the facts about your case truthfully, or if the defence makes an offer to settle which the insurer considers reasonable, then the insurer will have a right to discontinue cover.
Accordingly, provided that you have a good case you should now be able to obtain legal representation at little risk to yourself and recover, almost in full, the damages to which you are entitled.
Using your own money
If your case's prospects of success are assessed at less than 60 per cent it is unlikely that you will be able to obtain legal representation under a CFA or, indeed, after the event insurance cover. The only alternative to dropping your case, which your solicitor would probably advise you to do, would be to use your own money or litigate in person.
This may sound harsh, particularly as we believe that solicitors do turn away cases which they believe they could probably win, and, if legal aid were available to you, they would run. But it is commercial reality which the entry of insurers into the arena has brought about.
If you decide to use your own money your solicitor should caution you on the risks involved due to the high costs, and high failure rates in a medical negligence action. He should explain your liability for costs and provide information on hourly rates charged by the firm, a barrister and expert witnesses. You will probably be advised that if, after investigation, your claim does not prove as strong as possible in these cases, with say a 80% or better chance of success, the risk against the likely recovery is too high.
To conclude this database, once a joint decision has been made on funding your solicitor will proceed with your claim.
- What is clinical negligence?
- How do you make an effective complaint?
- Where can you find an experienced clinical negligence solicitor?
- How is your claim investigated?
- What happens if your claim is litigated?
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