Clinical negligence claims—funding and costs

Copyright © 2025 LexisNexis
Produced in partnership with David Willink of Lamb Chambers
Practice notes

Clinical negligence claims—funding and costs

Copyright © 2025 LexisNexis

Produced in partnership with David Willink of Lamb Chambers

Practice notes
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Funding

The usual mechanisms for funding a clinical Negligence claim are:

  1. •

    Legal aid/public funding

  2. •

    conditional fee agreement (CFA)

  3. •

    after the event (ATE) insurance

  4. •

    before the event (BTE) insurance

  5. •

    Damages-based agreement (DBA)

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

David Willink
David Willink

Lamb Chambers

As a civil servant in the Lord Chancellor’s Department, now the Ministry of Justice, David gained extensive experience in government, including responsibility for civil law reform in the areas of contract, trusts and privacy & freedom of expression. He appeared before Select Committees in both Houses of Parliament, and represented the UK in Brussels, Luxembourg, Strasbourg and Salzburg. He was responsible for the defence of domestic libel law in Steel & Morris v United Kingdom [2005] ECHR 103 (‘McLibel’). He also held responsibility for advice on appointments to Queen's Counsel and senior judicial office.

At the Bar, he has maintained a broad civil practice, acting for claimants and defendants across the areas in which chambers practise. He accepts Direct Access instructions in appropriate cases. In addition, he has developed a practice in all aspects of ecclesiastical law, and is the Deputy Chancellor of the Dioceses of Salisbury and St Albans. He is also a Deputy District Judge.

He writes extensively, both for LexisNexis and for other print and online publications.

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Jurisdiction(s):
United Kingdom
Key definition:
Negligence definition
What does Negligence mean?

Negligence is 'the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do' (Blythe v Birmingham Waterworks (1856) 11 Exch 781, at p 784). It is accepted that the test for breach of duty is objective, in the sense that the individual character and mental and physical features of the particular defendant are usually irrelevant.

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