Choosing a Solicitor to pursue a medical negligence claim (sometimes referred to as a clinical negligence claim) on your behalf is an important decision, and at times it may be difficult to decide what is best for you. Funding is one of the main considerations when choosing who to pursue your claim for you, and neglecting to check all of the details and options available could result in you being financially liable, and not receiving all of your compensation.
Legal aid has now been withdrawn for medical negligence, except for cases involving children suffering neurological injuries during pregnancy, birth, and in the eight-week post-natal period.
The majority of medical negligence claims are pursued by Solicitors using a Conditional Fee Agreement (CFA). Although in the past few years there have been changes in the law following the introduction of new legislation; the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in addition to changes in the Civil Procedure Rules. There has also been the introduction of ‘qualified one-way cost shifting’ (QOCS), which prevents a Claimant from being liable to pay the opponent’s costs if they lose the case. However, you must be aware that there are still instances where the Claimant will be liable to pay the opponent’s costs. When you choose a Solicitor to deal with your medical negligence claim, they should discuss with you the option of purchasing an ‘After the Event’ (ATE) insurance policy, which protects you financially if you fail to beat an offer made by the opponent to settle the claim. There is also a possibility that you already have ‘Before the Event’ (BTE) insurance as part of your home insurance policy or other insurance policies which you may have. These insurance policies may cover your opponent’s legal costs if you are not successful with your claim.
A Conditional Fee Agreement, or ‘No win, No fee’, sets out the agreement between you and the Solicitor instructed to pursue your claim. The Solicitor agrees that they will not charge a fee if they are not successful in pursuing your claim, subject to terms and conditions being met and followed. In return for the Solicitor deferring payment of legal fees until the end of a successful claim and also taking the risk the claim may not be successful, the Solicitor may charge a success fee up to 25% of your damages, which is to be deducted from the recovered damages at the end of the claim. The success fee is negotiable. Here at Been Let Down, we offer highly competitive success fees and invite all prospective clients to call us to see if we can beat any success fee arrangement you may have been offered with another firm of. We are able to offer success fees as low as 0% in respect of many clinical negligence claims which means you will pay less out of your compensation when you instruct the highly experienced Solicitors at Been Let Down to deal with your claim.
It is also important your Solicitor bears the responsibility of ensuring you understand the wording of any contract signed when instructing them to act on your behalf. This includes a detailed costs breakdown of the initial investigations and the further stages of the process. Due consideration must be given to the funding of any expert opinion and reports needed to bring your claim. It is therefore important that you seek out a reputable Solicitor, who has a good knowledge of funding issues before deciding if you wish to pursue your claim.
The funding options will be discussed with you over the telephone or in person to ensure that you are completely comfortable and that you are aware of any financial risks associated with bringing a claim. We will also provide you with a Client Care letter which lays out the structure and procedure, which we are required to do by the Solicitors Regulation Authority.