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 practice 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 (CFA)

  3. damages-based agreement

Various cases have considered whether it was reasonable to switch from legal aid funding to a CFA. 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.

In XDE, the Court of Appeal held that Surrey was not limited to cases where the Simmons uplift applied and that the examination of the reasons to change the method of funding was of general application.

Any solicitor challenged on the reasons for switching funding must produce a witness statement explaining the decision in detail.

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)

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