Medical negligence claims seem to be in the news increasingly often nowadays. Here, medical negligence claim specialist Ken Thomas at Harding Evans Solicitors answers some questions on how these claims are funded, as well as the relevant time limits on claiming.

1. I think I might have a claim for damages arising from medical neglect. Does Legal Aid still exist for these cases?

Yes. Legal Aid does still exist for medical claims, though it is now called Public Funding. To obtain Public Funding, an individual must firstly be financially eligible and there are set limits in respect of income/capital. Certain state benefits (such as Income Support, Income-Based Jobseekers Allowance or Guaranteed State Pension Credit) mean that the individual is automatically financially eligible.

As for children, their eligibility is assessed in their own right, and their parents’ income/capital is not taken into account.

Secondly, the client must have a case with sufficient prospects of success. Public Funding will only be granted if the claim is more likely than not to succeed. The Legal Aid Board, now called the Legal Services Commission, can refuse funding if the prospects seem poor. Alternatively, if it is felt that the cost of investigating the claim would outweigh the likely compensation available.

Public Funding for clinical negligence claims is only available through a limited number of solicitors who have a Franchise Contract with the Legal Services Commission.


2. What about “No Win, No Fee” ? If I am not eligible for Legal Aid, could I pursue the claim under a “No Win, No Fee” Agreement?

Possibly yes, though not all cases are suitable. I am now acting for more and more medical negligence clients under these arrangements - we lawyers call them Conditional Fee Agreements. Again, every case has to be looked at individually. If the prospects are poor, then it is unlikely a “No Win, No Fee” Agreement will be made available. However, in the right circumstances, these arrangements do allow an increasing number of claims to proceed with the solicitor effectively taking the risk that if the claim fails or is dropped, they do not get paid. If the claim is successful, then the negligent party will pay the solicitor’s costs on top of the compensation.

A word of warning - it is essential that advice be taken from a specialist medical negligence solicitor. Any solicitor can act for a clinical negligence Claimant under a “No Win, No Fee” Agreement, but not all are specialists in this particularly tricky field of the law.


3. Are there any other means of funding such cases?

Yes - there is Legal Expenses Insurance. Many people do not realise they have such cover. To see if you might be covered, you would need to check your insurance policies, most often Legal Expenses cover would be found on the home contents policy. If the insurer agrees to cover the claim, that insurer would pay the solicitor’s costs and expenses at no expense to you.

Again, more and more claims are being pursued with the benefit of Legal Expenses Insurance. It is worth noting that here in Wales there is another option for funding these cases. Two years ago a Speedy Resolution Scheme was set up by the Welsh Assembly. This allows certain claims against Welsh hospitals to be investigated under a set timetable and for limited/fixed fees. Not all cases are eligible to enter the Scheme, but this is an interesting alternative for potential clients who might not otherwise be able to fund a claim.


4. If I can get funding for a claim, are there any time limits I should be aware of?

The answer to this is most definitely yes. The general rule is that a claim must be brought within three years of the negligent treatment, or otherwise within three years of the date that you had knowledge of that mistake. Because these cases can take quite some time to investigate, it is therefore prudent to seek some preliminary legal advice sooner rather than later. Some clients wait to see whether they recover from the negligent treatment and whilst this might in one way be sensible, it can cause potential problems if it means they leave it late in the day to bring a claim.

It is worth noting there are special rules for claims on behalf of children. The three years only runs from the child’s eighteenth birthday so that they effectively have until their 21st birthday to bring Court proceedings. Also note that where a potential claimant suffers from a mental handicap, the three year rule may not apply at all.