Clinical negligence claims—funding and costs
Produced in partnership with David Willink of Lamb Chambers
Clinical negligence claims—funding and costs

The following PI & Clinical Negligence guidance note Produced in partnership with David Willink of Lamb Chambers provides comprehensive and up to date legal information covering:

  • Clinical negligence claims—funding and costs
  • Funding
  • Legal aid
  • Exceptional funding
  • Criteria
  • Conditional fee agreements (CFAs)
  • Damages-based agreements (DBAs)
  • Increase in general damages
  • Costs
  • Basis of assessment
  • more

Funding

The usual mechanisms for funding a clinical negligence claim are:

  1. legal aid/public funding

  2. conditional fee agreement

  3. damages-based agreement

Various cases have discussed the appropriateness of funding and switching eg in Surrey v Barnet and Chase Farm Hospitals, the Court of Appeal decided that the decision to switch funding from legal aid was unreasonable because the advice provided to the claimants exaggerated the disadvantages of remaining with legal aid funding and had failed to mention the forfeiture of the Simmons v Castle 10% uplift in general damages. Surrey has been applied in cases where the Simmons v Castle uplift was not a factor.

Legal aid

Since 1 April 2013, legal aid for clinical negligence claims is only available in the case of:

  1. children

  2. suffering severe disability

  3. through negligence causing neurological injury

  4. between conception and eight weeks post-birth

Note that:

  1. the key is the date of the negligence, not of the injury. For example, cognitive disabilities presenting later in life are still potentially within scope

  2. the negligence need not be in the treatment of the child; negligent treatment of a third party (for example, the mother) causing the child injury is still within scope

See Practice Note: Legal Aid Agency funding of clinical negligence cases

Exceptional funding

Outside these criteria, 'exceptional case' funding may be available under section 10(2) of the Legal Aid, Sentencing