PERSONAL INJURY
It should never be necessary for you to make any payments to your solicitor for legal costs in Personal Injury claims but for legal reasons it is still necessary to have a form of funding in place. It is nothing new that, if your claim is successful, you should keep 100% of your compensation as a successful claimant is entitled to payment of their solicitor's fees in addition to their compensation. However, before the introduction of Conditional Fee Agreements (CFA's or No win, No fee) in 1995, the risk if you didn't have legal aid was that you might have to pay legal costs if you lost.
With the removal of Legal Aid it was recognised that a member of the public with moderate means could not take the risk of meeting these fees and so today all Personal Injury claims should be funded either through a CFA or, as is often the case, through before the event Legal Expense Insurance.
LEGAL EXPENSE INSURANCE (LEI)
The majority of drivers have LEI attached to their motor policies even if they are unaware of it. Some insurers automatically provide this cover under the main premium. This cover will normally only meet legal costs associated with motor accidents. Most LEI providers such as the RAC will refer you direct to their panel solicitors and you will have nothing to pay whether the claim is successful or not.
LEI is also often attached to Home Contents Insurance policies and this normally covers claims relating to other types of accident - sometimes even medical negligence - the policy document will specify the types of claim it covers and if in doubt, your solicitor will explain the extent of cover. The amount of legal costs covered is often limited to about £50,000 and this covers both sides costs. Whilst this is ample to cover the vast majority of cases, it should be remembered that in large contested claims, the funding may well run out and when it does, unless you are prepared to take the risk yourself, there may be no option but to drop the claim.
LEI is sometimes also attached to credit cards and whilst less common, is worth checking
CONDITIONAL FEE AGREEMENTS ( CFA OR NO WIN, NO FEE).
You cannot enter a CFA if you have LEI in place at the time the accident occurs. If you do and it turns out later that you did have LEI, it will invalidate your CFA. Your solicitor will help you check whether you have LEI.
Any solicitor who regularly does Personal Injury work should be prepared to offer a CFA if they feel you have a good case. They should not take a percentage of your compensation under a CFA and if they say they will, don’t use them.
Under a CFA your solicitor runs the case on the basis that if it turns out to be unsuccessful no legal fees will be charged. The defendant’s lawyers will need to be paid and therefore your solicitor must arrange insurance against this from the start. The premium for this cover can be deferred and at the end of the claim this will be payable by the paying insurer in addition to your compensation.
You should not have to pay anything win or lose and as always, you keep all your compensation if the claim is successful. There are no loopholes or catches if your solicitor sets the agreement up in accordance with the Law Society Regulations.
CLINICAL NEGLIGENCE FUNDING
Legal Aid
Although relatively few solicitors have a Clinical Negligence Legal Aid Franchise, it is still possible to fund a claim with a legal aid certificate if you are financially eligible. If in doubt, telephone a solicitor with a franchise and most will discuss the case and eligibility without charge or obligation to see if it is worth your while pursuing.
LEI
Relatively few LEI policies cover Clinical Negligence claims but it is always worth checking
CFAs
These are available for Clinical Negligence claims but normally after the initial investigation as the insurers to the defendant's costs (see above) will want to see some medical evidence to assess the risk. If there is no LEI and you don’t qualify for legal aid, you will have to pay for this yourself. An initial investigation into even the more straightforward Clinical Negligence cases is unlikely to cost less than £2,500.
HOW DO I KNOW IF MY SOLICITOR HAS THE RIGHT EXPERIENCE?
Indicators that the solicitors you instruct have knowledge and experience to deal with any type of claim include membership of the Law Society's personal injury panel, a Clinical Negligence Franchise and membership of referral panels for AVMA (Action against Medical Accidents), the Spinal Injuries Association and Headway, the charity for victims of brain injury. Clarkson Wright & Jakes have members of all of these panels and associations.
