Funding a claim in England and Wales
Funding a claim is a major concern for most people and all our members will discuss the options clearly with you at the outset; none will leave you with a big bill you cannot pay.
There are a number of different ways in which legal advice can be funded and your Brain Injury Group solicitor will advise on the most appropriate way for you.
To help, we have summarised some of the key points around the funding of brain injury claims:
Legal aid is no longer generally available for personal injury claims; it is now only available for clinical negligence cases that involve neurological injury resulting in severe disability arising during pregnancy, childbirth or within the first eight weeks of life, for example, a lack of oxygen suffered during delivery leading to severe brain injury such as cerebral palsy.
Your solicitor can discuss eligibility with you, which now includes means testing.
Conditional Fee Agreement
These have been referred to as ‘no win no fee’ agreements and mean that your solicitor will not charge you for their fees if the claim is unsuccessful. They have been the most common form of funding for brain injury claims.
There are circumstances where you could be liable for the Defendant’s costs (see ‘Qualified One Way Cost Shifting’ below) and the expenses incurred in your claim (such as obtaining medical records and medical evidence). To ensure you are protected against paying these costs and expenses, an insurance policy can be taken out with the premium payable for such a policy is paid on successful conclusion of the claim.
Damages Based Agreement (DBA)
Sometimes referred to as a Contingency Fee Agreement, this is another type of ‘no win no fee’ agreement.
What it means is that if your lawyer represents you under a DBA, they will be able to deduct up to 25% of the compensation they recover on your behalf. The percentage you agree for them to deduct will normally contribute towards the costs they have incurred running your claim to a successful conclusion, but you should confirm this in advance as it can make a big difference to the final amount you receive. In some circumstances your lawyer’s costs may be able to be recovered in full or in part from the losing party.
If you lose the case, you won’t be charged a fee by your lawyer.
Legal Expenses Insurance (Legal Protection)
The majority of buildings and contents or motor insurance policies include legal expenses these days. Be ready to share the details of your policies with your solicitor so they can check the situation.
If you are a union member then the trade union you belong to may cover the cost of pursuing your claim, so do check this.
Qualified One-Way Cost Shifting
Since April 2013 cases have been funded by what is known as qualified one way cost shifting. What this means is that should you lose your case against the Defendant, you will not be responsible for payment of the Defendant’s costs. However, there are exceptions to this rule and these will be explained to you at your initial meeting.
Funding a claim in Scotland
In Scotland, you may still be eligible for Legal Aid to pursue your claim.
The Scottish equivalent of a Conditional Fee Agreement is a Speculative Fee Agreement which is in very similar terms, although success fees are not recoverable in Scotland.
A Contingency Fee Agreement may be available in Scotland. You will be kept entirely free of expense in relation to your own legal team’s costs and expenses and your opponent’s costs and expenses in return for which you would pay a percentage of your damages on a successful conclusion of the claim.