Will I be entitled to Legal Aid (Public Funding)?
The Legal Services Commission(LSC) is responsible for legal aid, or public funding as it is now known. The LSC has three conditions which you have to satisfy to get public funding for a clinical negligence claim.
You must have a reasonable chance of succeeding with your claim and winning damages. The likely amount of damages should usually be more than the estimated legal costs to make the case worthwhile financially. There are a few cases, for example those involving deaths of children, where this test may not be strictly applied. We will advise you and the Legal Services Commission about these issues in your case.
Your income must be below the level set each year by the Legal Services Commission. There is a gross income test – if your income is above this you will be refused public funding automatically. Then there is a disposable income test. If your gross income is low enough, the LSC deduct amounts for such things as tax, housing costs and dependants to get your disposable income. This is the figure they assume you have left over after a bare minimum of essentials are covered. If this is low enough you are eligible for public funding.
The LSC will then assess your capital including savings, valuable items and so on. The value of your home will be disregarded up to a certain level
If you qualify on these grounds you will be granted public funding. This can involve paying a contribution to the LSC from your income, capital or both.
It is important to remember that it is the means of the person making the claim which will be assessed. If your child has been injured, they will be assessed on the basis of their own means, not yours.
However if the claimant is part of a cohabiting couple, his or her partner's means will also be assessed. This includes unmarried and same sex couples as well as those who are married. Everyone's cohabiting partner's means are included. Theoretically this would also include children, eg 16 or 17 year old living with a partner.
There are more complex rules for claims arising out of deaths. Please ask us about these.
We haven’t mentioned figures here because they change each year. The LSC website has an easy to use calculator to help you find out whether it is worth making an application for public funding.
If you think you may qualify for public funding we will make the application on your behalf. You don’t have to do it yourself.
Does your firm take on Legal Aid cases?
Yes. We have a contract with the LSC in clinical negligence which means we are approved by them to run clinical negligence claims. We also have contracts for personal injury, multi-party action cases and public law cases.
My Legal Aid certificate (Certificate of Public Funding) has been discharged and I’ve been told to re-apply – can you help to get it reinstated?
It depends why your certificate was discharged. If your means have changed and you are no longer financially eligible then you will not be granted public funding.
If your certificate has been discharged for reasons related to the merits of your case then we may be able to review the work which has been done and, if we feel it was of an inadequate standard, we may be able to re-apply on your behalf.
The LSC is used to granting applications where work has been done by non-specialists, who were until recently allowed to undertake clinical negligence work with public funding. However the fact that the work was done by a non-specialist doesn’t mean it was necessarily inadequate. We will have to be able to show specific failures.
I'm not happy with my present solicitors because they are non-specialist/taking too long and I would like to transfer my case to your firm. Do I risk losing my public funding/legal aid certificate if I transfer to you?
No. Non-specialist firms cannot make applications for new public funding certificates. The LSC will listen sympathetically to your request.
If you are with a specialist firm and you are unhappy you can ask the LSC to transfer to us but you will have to have good reasons. The LSC will make a decision based on the standard of work done by your solicitors, the degree of confidence you have in them and the stage the case has reached. For example it would be unusual, though not impossible, to transfer a case from a specialist firm a few weeks before trial. As with new applications you need to talk to us first and we make the application on your behalf.
If I can’t get Legal Aid (Public Funding), then I’m worried I can’t afford legal fees. How much will it cost?
The answer to this question varies from case to case. It depends on how much work is needed to investigate and then run your case. Costs include:
- our time, which is charged per hour we spend working on your case
- the fees we pay to medical experts for their advice
- the fees we pay to barristers for their advice or work in court.
You also have to pay VAT on our costs and the barrister’s costs. Most experts don’t have to charge VAT.
At the beginning of your case we will advise you about likely costs. We may be able to offer you a conditional fee agreement (see below) for our fees and we may be able to help you find other sources of funding for experts’ fees. We will do our best to ensure you are able to investigate and bring your claim. Please see our section on Funding Your Case.
Will I get back the money I have to pay out?
Every clinical negligence case has to be investigated and we need advice from medical experts before we can tell you if your claim is likely to succeed. If a claim cannot be brought, the costs of the investigation cannot be recovered.
However if you have a strong claim, the defendant will probably have to pay your costs at the end of the case as well as your damages. This means that while you may have to pay some costs now you should get most of them back if you win.
Once you start court proceedings (actually take the formal step of issuing and serving a Claim Form) you also risk having to pay the defendant’s costs if you lose. You can buy insurance to cover this and some policies will also repay you the money you had to pay for your own experts’ fees if you lose. You can’t generally get insurance before you have investigated the case and have advice that it is likely to succeed.
Do you take cases on a “no win, no fee” basis? Does that mean I won’t have to pay anything at all?
Yes we do. A panel of the firm's partners will consider your case to assess your chances of success and carry out a cost/benefit analysis just as the LSC assesses new applications. We may then offer you what is called a Conditional Fee Agreement (CFA).
This means that if you do not win your case, you do not have to pay this firm’s fees. You will only have to pay our fees if you win your case, plus a “success fee” on top, to compensate us for the risk that we might not get paid at all.
However you will probably still have to pay things like experts’ fees as you go along – these are the expenses that we have to pay out to others. We will do our best to help you find funding for this if you cannot afford them.