If you have suffered a personal injury and you believe it was caused by the negligence of another person or organisation, such as a local body or your employer, you may be able to make a claim for compensation.
In 1998 a decision was made to abolish legal aid for personal injury cases, and this came into effect in 2000. Legal aid is available for one type of clinical negligence matter and certain child abuse claims, but not for general personal injury litigation.
Since the ending of legal aid funding, law firms have worked with claimants in a variety of ways to ensure they have access to justice and have an opportunity to claim compensation. Compensation is often a vital component in relieving financial pressure and accessing rehabilitation via the Rehabilitation Code 2015 which promotes early intervention for the purposes of ensuring the claimant has access to the rehabilitation they need early in the compensation process.
Below are the following ways personal injury cases are funded in England and Wales.
Public funding or legal aid
Since 2013, legal aid for clinical negligence cases has been reduced to one category only – infants who have suffered severe disability due to a neurological injury sustained during pregnancy, birth, or the first eight weeks life. Other cases may be considered, but it must be emphasised, those claims must be truly exceptional.
You may also qualify for legal aid if you have suffered child abuse. In such claims and those of clinical negligence, any consideration for legal aid will include an examination of your income (a means test).
Conditional Fee Agreements
Many personal injury claims are funded by Conditional Fee Agreements (CFAs). These are also known as ‘No Win, No Fee’.
If your Solicitor agrees to act for you under a CFA, depending on the agreement, you will pay reduced or no legal costs should your claim fail. However, you are likely to be required to pay for any expenses attached to your litigation, for example, obtaining an expert medical report as evidence. These are known as disbursements.
If your case is unsuccessful, it is highly likely you will be liable to pay your opponent’s legal costs. Therefore, it is crucial you take out After The Event (ATE) insurance to protect you from an adverse costs order.
It is likely the Solicitor instructed by you will want an enhanced fee if the case is won. This is not a percentage of the compensation awarded, but of the Solicitor’s legal fee.
Your Solicitor has a duty to carefully explain all aspects of the CFA to you before you sign the agreement. This includes the Solicitor’s final fee, the percentage of uplift on that fee, and the circumstances which must be in place for the legal fees to be payable. They will also advise you on ATE insurance and organise the policy on your behalf.
Funding from your trade union
If you belong to a trade union, you should check to see if they have the facilities in place to offer you free legal advice. It is likely they can organise a free interview to establish if your work-related injury may be eligible for a compensation claim. Depending on the type and size of the union you belong to, they may be able to fund part or all of your care and provide insurance to cover you in case of an adverse costs order.
Before The Event Insurance
Before The Event (BTE) insurance can be attached to other types of insurance such as household, car, and travel. This provides funding to pay legal costs (including that of the other party if you lose your claim) and is purchased in anticipation of a compensation claim being taken. Your Solicitor will need to examine your BTE insurance policy to ensure it covers the full cost of a potential claim. If it does, you may not need to enter into a CFA or take out ATE insurance.
Funding the claim yourself
It is possible to fund a personal injury claim yourself. It is an unpopular choice for most as you will have to take on the whole risk of the litigation and may require considerable financial resource at your disposal to pay for the case and associated expenses, as it proceeds. In addition, if you lose in court, you may have to pay your opponent’s costs.
In this type of arrangement, your Solicitor will try and provide an estimate of the total cost of the claim and ensure that at specific points you are consulted before more costs are incurred.
To find out more about personal injury funding, please call us on 0333 222 5731. We work with a panel of experienced Solicitors. However, if you wish to instruct your own lawyer, we can assist you in evaluating whether they have the required expertise in the field of your dispute or claim.
BMS Funding works with the legal profession and businesses, providing litigation funding and Law Firm finance.