If you have suffered a brain injury as a result of an accident or negligent medical care, funding a claim for compensation can be a major concern and is one of the most commonly asked questions. It’s natural to have concerns, but there are a number of different ways to fund a claim and your solicitor should discuss these with you and advise on the most appropriate way for you to proceed.
In this article, we look at some of the most common ways of funding a claim.
Five ways to fund a brain injury claim
Conditional Fee Agreement
The most common way of funding a claim is through a Conditional Fee Agreement (“CFA”), often referred to as a no-win no-fee agreement.
Your chosen solicitor will review your claim and, if they believe your claim has reasonable prospects of success, will put in place a CFA. They will also recommend that you obtain an After the Event (ATE) insurance policy – there is no upfront cost to you, the client.
In the event your claim is successful, your solicitor will receive the majority of their legal fees and disbursements, such as the cost of obtaining medical reports and any court fees, directly from the Defendant. The remainder of their fees, the ATE insurance premium and any success fee payable under the CFA will be deductible from your damages. Your solicitor will explain at the outset about any deductions they may need to make from your damages and the maximum this will be, usually as a percentage of the compensation you receive.
If your claim is unsuccessful, and an ATE insurance policy was taken out, you pay nothing. Your own solicitor will not ask you to pay any of their fees and your ATE insurance policy will pay any disbursements incurred and your opponent’s costs.
However there are exceptions to this, for example if your compensation claim is discontinued because you have failed to provide instructions to your solicitor, or because the information you have provided is false.
Your solicitor will provide you with thorough advice about CFAs and your obligations, before commencing work on your claim and incurring costs.
Damages Based Agreement
Damages Based Agreements (DBAs) are often referred to as a Contingency Fee Agreement, which are, in many ways, similar to a CFA and, depending on the cause of injury, you will be advised to obtain ATE insurance.
If your claim is successful your solicitor will deduct their fees from your compensation by way of a percentage of the damages you receive and if disbursements incurred are not payable by the Defendant, these will also be deducted from your damages. These types of agreement are commonly used in cases brought against the Criminal Injuries Compensation Authority for an injury as a result of an unprovoked assault. Before entering into a DBA you should ask you solicitor for confirmation of the likely amounts to be deducted from your compensation award.
If your claim is unsuccessful, you will not be liable for your solicitors fees and your ATE insurance policy will pay any disbursements incurred and your opponent’s costs.
Legal expense insurance
Many insurance policies, such as buildings and contents or motor insurance, include legal expenses cover which typically cover the cost of a wide variety of legal work, including personal injury claims. This type of insurance is also known as Before The Event (BTE) insurance.
However, most BTE insurance has a limit on the amount of cover available, and your solicitor may need to apply to your legal expense insurer for their approval to act on your behalf. In the case of serious brain injury claims, the limit on the amount of cover available may not be high enough to cover your legal fees.
Before speaking to a solicitor it is advisable to check whether you have any legal expense insurance policies and review these with your solicitor to see if they can be utilised.
Legal Aid, also referred to as public funding, is no longer available for personal injury claims, with the exception of clinical negligence cases which involve neurological injury resulting in severe disability arising during pregnancy, childbirth, or within the first 8 weeks of life. There are only a small number of firms able to carry out Legal Aid work but for eligible children, this is the best way to fund a claim.
If your claim cannot be funded through any of the above options, you can choose to fund your claim privately. This is rarely a good option as you will be liable for both your solicitors costs and those of the defendant if your claim is not successful.
How Brain Injury Group can help
If you are considering bringing a claim for brain injury, all our member law firms are available for a free, no obligation chat. They will explain all funding options to you, to find the best option for your individual circumstances.
To become a member of Brain Injury Group, law firms need to meet our strict joining criteria which ensures all members have the right experience to deal with brain injury claims of all severities and a service which includes not only obtaining financial settlement, but also access to rehabilitation, care and support to help rebuild lives.
If you, or someone you know, has been affected by brain injury and would like further advice, email firstname.lastname@example.org or find your closest member firms on our website: https://www.braininjurygroup.co.uk/find-brain-injury-solicitor/
With thanks to…
This article was produced in association with Tim Jones, Legal Director at member law firm Enable Law. Based in Taunton, Somerset, Tim assists clients across the South West who have suffered brain, spinal and serious orthopaedic injuries as a result of accidents. He is also able to assist those bringing claims against the Criminal Injuries Compensation Authority.
Enable Law is a specialist medical law and personal injury practice with offices across the South West, South Coast and London.