How do I fund a claim?
There are a number of different ways in which a claim may be funded. Which method of funding the claim is the most appropriate will depend on your personal circumstances. Usually, a claim will be funded in one of the following ways:
- On a private paying basis
- Legal expenses insurance
- Legal services commission (LSC) funding – previous known as legal aid
- Conditional fee agreement (CFA) – "no win no fee"
- Trade Union funding
Why is funding important?
It is important to ensure that you have the right funding for your case to ensure:-
- That the costs of the case can be paid; and
- If you lose your claim you may be ordered to pay some or all of the costs of your opponent and therefore it is important to ensure that you are in a position to do so.
When you contact us we will ask you some questions about your personal circumstances in order to fully assess the most appropriate way of funding your potential claim.
Investigating your claim on a private paying basis
It may be that you are in the position to pay for the costs investigating the claim yourself.
If, following the initial investigation your claim has reasonable prospects of succeeding then, at that stage, we may be able to offer you a no win no fee agreement and we will try to arrange insurance cover for you. If you are funding the entirety the claim for yourself, and you do not obtain an appropriate insurance policy you may be in a position, if your claim is unsuccessful, that you are ordered to pay some or all of the other side’s costs.
We would advise you fully of the likely costs involved in funding the claim on a private paying basis at the outset and may be able to offer you a fixed cost package to cover up to a certain stage of the investigation.
Legal Expenses Insurance
You may have the benefit of legal expense insurance (before the event) on one of your insurance policies. Many people do not realise that they have the benefit of this cover. It is usually found on household insurance or car insurance or sometimes credit card insurance policies.
You will be asked, at the outset, to check your insurance policies that were in place at the time that the treatment you've complained about took place.
If you do have legal expense insurance we will ask you to either ring your insurer direct and report a potential claim on the policy immediately or, alternatively we can do this for you.
Some insurance policies have a deadline within which you must report your potential claim to the insurer. It is therefore important that you check your policies as soon as you are thinking of making a claim and telephone your insurer immediately and report that there may be a potential claim on the policy.
You have the right to instruct a solicitor of your choice to handle your claim. If you contact your insurer direct you may be referred to their panel of solicitors who deal with all of the insurer’s work rather than the solicitor that you wish to instruct. In many circumstances you will be asked to submit a claim form and, if you request this and forward it to us, we can invite your insurer to allow us to act on your behalf.
We deal with a large number of medical negligence cases that are funded by legal expense insurers and, given our expertise in this area, many of these insurers are willing to allow us to act for a client, even if we are not their own panel of Solicitors.
Legal Services Commission (LSC) Funding
Legal aid is now called public funding. In order to qualify for this type of funding from the LSC you must be able to satisfy two tests:
- The merits test – we must be able to justify the use of public funding to investigate your claim. The cost of pursuing your claim will be considered against the potential benefit to you should your claim be successful and the general prospect of success. In general, therefore, the amount of compensation that you may be awarded in your case (should it be successful) must be more than the cost of pursuing it.
- The means test – if you receive certain state benefits, such as income support, job seekers’ allowance or guaranteed state pension credit you will automatically qualify financially for public funding. You still have to satisfy the merits test.
If you do not receive these state benefits then the joint income of you and your partner will be assessed. If your gross monthly income is over £2,000.00 or your savings are over £8,000.00 then you will not qualify on a financial basis for public funding. If your income is under these levels then we will calculate your disposable income to determine whether or not you will qualify for public funding.
Even if you are eligible for funding you may have to pay contribution towards your legal costs from your income or savings before you are granted legal aid. We will advise you whether or not you will qualify for public funding.
CFA - No Win No Fee
We may be in a position to offer to enter into a no win no fee agreement with you.
The no win no fee agreement means that if you pursue your claim and lose we will not charge you any fees.
If you pursue the claim and win we will receive our usual costs plus a success fee. A success fee is calculated at a percentage of the overall costs. We will recover all of these costs from the other side. The costs can never be as much as double the normal rate. We will assess the success fee on the basis of the particular facts of your claim.
If you lose, we will not charge you our fees. However, you may still be ordered to pay the costs of your opponent and the costs that you have incurred in paying other people in investigating your claim, such as medical experts. To ensure that you are adequately protected from paying these costs we will usually advise you to take out after the event insurance (ATE) to protect you in the event that you lose and are ordered to pay those costs.
If we do advise you to take out insurance cover, we will ensure that we will recommend a number of insurance policies and that the insurance is suitable to meet the other side’s costs and expenses, together with your own expenses.
Many insurance policies in relation to clinical negligence claims do not require you to pay the premium up front and instead it can be paid at the end of the case. Many of these premiums will only become payable in the event that you win your claim.
If the claim is successful we will seek to recover the cost of the premium from your opponent.
If you lose your claim then the insurance cover will include the cost of the fee. If you lose, therefore, you will pay nothing.
Trade Union Funding
If you are a member of a trade union they may agree to fund the costs of investigation into your potential clinical negligence claim. You should ring your union representative to check the terms of your membership. Some unions also fund clinical negligence claims for members of family.
It may be that if you do have trade union funding, you will be referred to your trade unions own panel of solicitors.
However, you should tell one of our advisors if you are a member of a union and you do potentially have that form of cover.
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