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Funding your claim

As of 1st April 2013, Boyes Turner can no longer promise that our clinical negligence clients will receive their compensation in full. Some legal expenses involved in making a clinical negligence claim will now, unfortunately, have to be deducted from their compensation.

What happened on 1st April 2013?

For cases started on or after that date, the Government changed the way that solicitors acting for injured clients can be paid. These changes do not affect clients of the firm whose cases were started before that date. 

What has changed?

For cases started before and up to the 31st March 2013, a solicitor acting on a ‘no win no fee’ agreement (called a Conditional Fee Agreement or CFA) could promise a client that there would be no deductions from their compensation payments to pay for legal expenses (or ‘costs’) at all. That is because the success fee and insurance policy was paid for by the defendant if the claim was successful. This meant that the defendant paid all of the client’s costs so that all of the resulting compensation could be paid to the client in full.  Boyes Turner has ensured that all of its CFA clients have retained their full compensation since 2000.

What will happen now however is as follows. The solicitor still needs a success fee to remain in business and to cover the losses in unsuccessful cases. The client also still needs insurance to cover the risk of paying their own disbursements and defendants costs if, for example, a defendants offer is refused and not beaten at trial. The Government has said that those expenses are no longer to be paid by defendants. As a result they will now have to be paid for by the client out of his compensation. 

Unfortunately, whilst the Government was aware that those deductions would potentially cause hardship for many clients, the changes have nonetheless still been made. 

Why do solicitors need a success fee and insurance?

When a solicitor takes on a CFA case, he does not know if he is going to win or not. Some clinical negligence cases are very uncertain at the start so the solicitor is taking a genuine risk that the claim might not be won - if the claim is not successful then the solicitor gets paid nothing at all. To compensate the solicitor for that risk, in successful cases, a success fee is paid to offset the losses of those that are lost.

A solicitor needs to take out insurance for the client to cover the possibility that the claim might be lost. If it is lost, the client is technically liable for his own disbursements (expert fees, court fees and so on) and can in certain circumstances be liable for the successful defendants costs as well. That risk is covered by the insurance, protecting the client from the risk of having to pay extensive costs. 

What will  clients have to pay?

Clients have to pay nothing up front and will only pay anything at all if they win their case. The case is still ‘no win no fee’ so if the case is lost the client still pays nothing. If it is lost, insurance will pick up that cost and the solicitor will simply not be paid for the work done.  

Could the client lose all of their compensation as a result of these changes?

No. There is a statutory cap on the amount that can be taken from the client’s compensation to cover the success fee. In addition to this, the clinical negligence policy of Boyes Turner will ensure that the client receives at least 75% of their full compensation and details of this will be discussed with clients at the outset. 

Will all solicitors deduct these costs from their client’s compensation?

If a client has a very simple claim, the solicitor might waive their success fee but most insurance arrangements are taken out on the basis that all cases are taken into the insurance arrangement. Otherwise if the insurance arrangement only covers the difficult cases, the premium will be unaffordable or might not be available at all. So, even in relatively simple claims, the client is very likely to have to pay an insurance premium out of their compensation and this also provides the client with protection for those cases that look simple at the outset and then prove not to be! For cases of any level of complexity, the client will most likely have to pay both a success fee and an insurance premium if they win.  However different solicitors will have different policies on these issues.  

How much will I have to pay?

Remember you only pay if you win your case.  If you lose it you pay nothing.  How much you pay when you win your clinical negligence claim depends on the cost of the insurance premium (which we will advise you about at the outset), the level of the success fee (which will depend on how likely the case is to succeed, its complexity, its value and likely duration) and the extent to which the defendant pays the balance of your costs and disbursements. Remember that the maximum success fee payable has been capped by the Government  and Boyes Turner has an overarching policy that provides certainty and openness for the client from the outset 

Are there ways of funding your claim other than a CFA?

Yes quite possibly.

If the claim results from a birth injury or one within 8 weeks of birth, legal aid might be available to the child. Boyes Turner has a legal aid franchise and we will always explore this option with you if it might be available.

You might have ‘before the event’ legal expenses insurance, usually through a household contents insurance policy. The policy must have been in place at the time of the incident and must not exclude clinical negligence claims from its cover. BTE polices will also have other restrictions which we would need to discuss with you. If you think you might have a BTE policy, do please let us know.

It is now lawful to enter into a ‘damages based agreement’ whereby we would be paid, if successful in your claim, by taking a percentage of the value of your claim rather than by calculating the work actually done for you. We are not generally in favour of such agreements as, one way or another, the agreement will end up being unfair either to you or to us. At the outset of a case, it can be very difficult to know if this might be favourable to the client so given that it involves a ‘windfall’ either for the client or the solicitor, we think it best avoided. However you do need to know about this option and if you are interested in such an agreement we would be more than happy to discuss it with you.

A conventional ‘private client retainer’ would always be available whereby we will charge you for the work actually done win or lose. If successful, the defendant would reimburse most of this cost for you but if the case is lost, you would be liable for our fees in any event. This is unlikely to be attractive for you but might be the only option if you have a difficult case which cannot yet be accepted for a CFA.

If you have any questions or queries regarding any of the information above then please get in touch with a member of our expert medical negligence team on 0800 307 7620 or email us at [email protected].

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