Personal Injury & Clinical Negligence Litigation, Chapter 9
There are various issues regarding funding that are specific to personal injury claims,
which a PI lawyer must take into account when advising a client at an initial
interview.
Relevant Code of Conduct Obligations:
CoC Description:
Reference:
Principle 7 Must act in your client’s best interests.
Para 8.7 Code You must provide a client with the best possible information about:
for Solicitors How their matter will be priced; and
The likely overall cost of the matter and any costs incurred.
At the time of engagement and when appropriate as the matter
progresses.
Para 8.6 Code Information (generally, but including about costs) must be given:
for Solicitors In a way clients can understand.
So that they are in a position to make informed decisions about
the services they need, how their matter will be handled, and the
options available to them.
Qualified One-Way Costs Shifting (QOCS):
Personal Injury & Clinical Negligence Litigation, 9.3.
QOCS In PI and clinical negligence claims, a D will not generally recover
costs from their opponent even if they successfully defend the claim
(CPR 44.12 – 44.17).
This is known as “Qualified One-Way Costs Shifting”.
When does QOCS applies to claims for damages for:
QOCS apply? Personal Injuries
Under the Fatal Accidents 1976.
CPR 44.13(1) Under s1(1) Law Record (Miscellaneous
Provisions) Act 1934.
What is its Where QOCS applies, costs orders can be made
effect? against claimants but ONLY to the extend that those
costs do not exceed the total damages C recovers.
CPR 44.14 So, if a C loses, they will obtain no damages, and
therefore, a D will not be able to recover any costs.
The intention of QOCS is to make ATE/AEI
insurance unnecessary for PI actions, as C will not be
liable for D’s costs if the claim fails.
Exceptions: QOCS will not apply if, per CPR 44.15 and CPR
44.16:
The claim is I.e., if C brings a claim for a
“fundamentally sham accident or exaggerates the
, dishonest”: extent of their injuries (Gosling v
Screwfix and Another
(Cambridge County Court, 29
March 2014))
D wins because There are no reasonable
the claim is grounds for bringing the
struck out, proceedings.
because: The claim is an abuse of
process.
C’s conduct is likely to obstruct
the just disposal of the
proceedings.
The proceedings This means that QOCS will not
include a claim apply for e.g., the claim is a
which is made subrogated claim where the
for the financial beneficiary is the C’s insurer.
benefit of a
person other
than C:
Funding Options:
PI & CN Litigation, 9.2.
The funding options available to PI Cs are as follows:
Legal Expenses Insurance:
What is it? LEI is an insurance policy where the insurer will cover the legal
costs of a C pursuing a claim in the event that they suffer a loss e.g.,
RTA.
Cover will only be available in the event that the policy’s terms are
complied with.
E.g.: LEI policies generally require the client to have “reasonable
prospects of success”, meaning cover will likely be declined if the
solicitor consider that the claim won’t succeed.
Obligations on The solicitor should:
a solicitor: Check whether The solicitor should send a letter asking for:
the client has a A copy of any motor or household insurance
LEI policy at the policies; or
outset: Any stand-alone “before the event” (BTE)
insurance policies that the client or a partner
living in their household has.
Sarwar v Alam [2001] EWCA Civ 1401
If the client does The policy will set out the maximum amount that
have LEI, you the policy will cover. This will often be set at just
must check the £25,000.
indemnity limit If the cover is insufficient, it may be reasonable
in the policy: to enter into an alternative funding arrangement e.g.,
CFA/DBA/After the event insurance.
Can a LEI Generally, a LEI funded client will only be able to choose to use
funded client their own solicitors after proceedings have been issued.
, use their own Insurers normally have preferred “panel firms” who they will require
solicitor? to be instructed on a claim.
Whilst the insures is technically free to choose their lawyer “in any
enquiry or proceedings” (Insurance Companies (Legal Expenses
Insurance) Regulations 1990), insurers often take a restrictive view of
the meaning of “enquiry or proceedings”, and limit the client’s freedom
of choice to only after Court proceedings have been issued.
Conditional Fee Agreements – CFAs:
What are they? Colloquially known as “no win, no fee agreements”; if entered into,
these will have the following consequences:
If C Wins: D will normally pay C’s reasonable costs and
disbursements under the general rule of CPR 44.2(2)
(a).
However, C will have to pay their solicitor a
“success fee” of:
Up to a maximum of 100% of their costs (s5
Conditionals Fee Agreements Order 2013 (SI
2013/689).
Capped for PI claims at 25% of:
- General damages awarded for pain,
suffering and loss of amenity (PSLA) and
past losses.
- Any benefits recoupable by the
Compensation Recovery Unit.
The success fee cannot be recovered from an
opponent (s44, Legal Aid, Sentencing and
Punishment of Offenders Act 2012).
If C Loses: C will not have to pay their own solicitors’ costs.
C will not have to pay the D’s costs due to QOCS.
C may have to pay disbursements UNLESS he has
covered costs and disbursements by using an AEI
policy.
Formality s58 and s58A of the Courts and Legal Services Act (CLSA) 1990:
Requirements: A CFA:
Must be in writing.
Must state the percentage success fee.
May not be used in family and criminal proceedings.
Must be signed by the client and solicitor.
Damages Based Agreements (DBAs):
What is a If the client succeeds and recovers damages, their solicitor will be
DBA? entitled to an amount equal to an agreed % of those damages.
This amount will be in respect of solicitor’s costs + VAT + Counsel’s
fees.
It will not cover any disbursements which will be owed by C on top
of this sum.
25% Cap in PI In PI claims, the amount of damages recovered by the solicitor under
Claims: a DBA cannot exceed 25% of:
General damages for pain, suffering and loss of amenity
, (PSLA); AND
Past pecuniary losses (past financial losses).
Example:
C, who has entered into a DBA set at 25% is awarded:
£70,000 for PSLA;
£30,000 for past loss of earnings;
£400,000 for future loss of earnings.
The fee payable to the solicitor will be 25% of PSLA + pass loss of
earnings, i.e., £70,000 + £30,000 = £100,% = £25,000.
The £400,000 for future losses will not be able to be touched.
Summary of If entered into, a DBA will have the following consequences:
their Effect: If C wins: C will normally recover, from the D, their reasonable
costs and disbursements under the general rule of CPR
44.2(2)(a).
D will thus pay for C’s solicitor’s fees, however, these
may be less than the sum C owes his solicitors accounting
for the agreed % of Damages which C’s solicitors are
entitled to under the DBA.
If that happens, the C will need to make up for any
shortfall.
If C loses: C will not have to pay D’s costs due to QOCS.
C will therefore have to pay their own solicitors’ costs
in full. There will be no additional fee.
C may also have to pay disbursements UNLESS they
have covered these by using an AEI policy.
Formality s58AA CLSA 1990; DBA Regulations 2013:
Requirements: Must be in writing.
Must specify the claim or proceedings to which the agreement
relates.
Must specify the circumstances in which the representative’s
expenses and costs are payable.
The reason for setting the amount of payment at the level
agreed.
Public Funding (Legal Aid):
When is Legal Generally, LA is unavailable in PI and CN claims, with one major
Aid available? exception:
Cs remain eligible for legal aid if the claim concerns CN causing
a neurological injury to a child resulting in severe disability (Sch
1, Pt 1, Para 23 LASPO 2012).
This will apply where there is, e.g., mismanagement of M’s
labour results in deprivation of oxygen resulting in a brain
injury.
The negligence must occur either:
When the child is in the womb; OR
During or after birth but before 8 weeks after:
- The 37th week of pregnancy; or
(if the child was born before the 37th week)
- The day of the birth
(if the child was born on or after the 37th week).
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