The law on paying legal fees has changed recently, and although it is not coming into effect until April 2013, in certain cases the changes may have an effect now.
At present, most people who have a claim for injury against a hospital trust or other healthcare provider will either receive Legal Aid to cover their legal costs, or their solicitor will act for them on a Conditional Fee Agreement (this is usually called No Win No Fee).
As a rule, clients with the benefit of Legal Aid or No Win No Fee arrangements with their solicitors pay no fees if a case is unsuccessful, if they win their case the costs are met by the losing defendant.
Although Legal Aid and No Win No Fee agreements are not being abolished, the situation is going to change dramatically on 1st April 2013 because of certain provisions in an act of Parliament called the Legal Aid, Sentencing and Punishment of Offenders Act.
At the moment any person with a clinical negligence claim may be eligible for Legal Aid provided 1) Their chances of success are reasonable; and 2) Their income and capital are below a certain level.
From April 2013 only those who have been injured during pregnancy, labour, or the first eight weeks of life will be eligible for Legal Aid. This is regardless of whether in other respects they have a strong case and/or a very low income.
In addition, there will be a Legal Aid Levy taken from the damages of people with successful claims by the government’s Legal Aid Agency (the organisation set up to administer Legal Aid after April 2013). The deduction will be 25% of the general damages awarded, that is, the part of your damages that compensates for the pain and suffering endured as a result of the negligence and any past losses (expenses) claimed.
In many cases this could be a very significant sum indeed.
Conditional Fee Agreements (No Win No Fee)
Because of the reduction in availability of Legal Aid many more people will be relying on their solicitors offering a No Win No Fee agreement. Solicitors will continue to offer this facility to their clients, where if the case is not successful they will pay no fees.
However, in successful cases there will be changes.
Presently, the costs that claimants recover from defendants include a solicitor’s success fee. The success fee is calculated as a percentage of the solicitor’s basic fee. It is used to offset the risk of the solicitor not being paid anything should the claimant lose the case. It is only payable if the claimant wins the case and will usually be paid by the losing opponent.
However, from April 2013 successful claimants may be deprived of up to 25% of their general damages in order to pay solicitors' success fees, as these will no longer be recoverable from Defendants.
What can you do now?
It is very important that if, before April 2013, you think you may have a claim against a hospital trust or other healthcare provider, you seek legal advice as soon as possible.
Any No Win No Fee agreement entered into or Legal Aid granted before April 2013 will not be subject to the new rules.
By instructing a solicitor and establishing the method of funding before April 2013, you may be saving yourself a significant deduction from damages if your case is successful.
To obtain specialist legal advice from one of AvMA’s accredited solicitors you may either telephone our helpline on 0845 123 2352 or click here and select a solicitor from our Find a Solicitor section.