How will your claim be funded?

You need to clarify your funding options with your solicitor at an early stage. Ask your solicitor about your eligibility for public funding as soon as possible and be sure that your solicitor can help you apply. Make sure you know the fee structure of the firm, what the total costs are likely to be of pursuing an investigation and, if appropriate, a full claim. It is very unusual that a “no win, no fee” arrangement can be struck with your solicitor due to the costs and potential risks involved.

In complex cases some firms will not apply for funding until there has been an opportunity of assessing the medical notes and records. In such circumstances the firm should be prepared to fund the production of those records.

In any event, you should receive a “client care” letter which will set out the fee structure and the firm’s procedures. If at any stage you feel unsure about how your case is being paid for or how much the bill is, ask your solicitor for an update. Your solicitor is required to update you at regular intervals.

If you are pursuing a claim on behalf of a child, it is likely she will be eligible for Community Legal Services (CLS) funding (previously called Legal Aid) through the Legal Services Commission. Funding a claim is subject to two criteria - merit and means. The Commission must be satisfied that reasonable grounds exist for starting an investigation and, where appropriate progressing the matter through to a full claim. The financial circumstances of the child are what is relevant. The child is the claimant and it is her means which are assessed, not the parents'.

There are two stages to funding:

1. The initial costs of obtaining medical records, seeking expert reports and gaining a barrister’s opinion if necessary.
2. The on-going costs of the various stages leading up to and including a trial if the barrister thinks the investigation should proceed to a claim.

Mental capacity and litigation friends

To bring a legal claim in her own name a person must have the necessary mental capacity. If she lacks that capacity another person can bring a claim on her behalf. This person is known as a “litigation friend”. Similarly a child cannot bring a claim herself. She too needs a litigation friend, which will usually be one of her parents.

It is the litigation friend who will choose and instruct the solicitor, acting in the injured person’s best interests. It is the injured person’s means that will determine whether she qualifies for legal aid. If she does not, her legal costs will come from her funds, not those of the litigation friend.