In the first of a two-part article that appeared in our Newsbeat magazine, James Davies looks at the funding options available to parents wanting to pursue a civil legal claim on behalf of their child. The funding of legal claims can appear complex. With so many law firms advertising and claiming to specialise in personal injury and clinical negligence claims, it can be difficult for parents to know where to turn on behalf of their children or to be confident that they can afford to take action at all.

Even though children’s claims can be complex (and I would always recommend instructing specialist solicitors), the cost is unlikely to be a major obstacle to parents or carers, at least under the current system of funding civil justice claims.

Most good solicitors offer a free initial interview, where all the various funding options  available should be discussed with you. You don’t have to commit there and then, and it is often the case that parents will see several firms before deciding who they prefer to instruct.

In this first article I will explain the basics of Legal Aid. In the next issue, I will look at some of the alternatives available to you if Legal Aid is not an option available to you.

Legal Aid or “Public funding”

Public funding, better known as Legal Aid, is a form of government funding intended to help people who cannot afford to pay solicitors’ legal fees. It is not available for most personal injury cases, and the government is proposing to remove it for the majority of clinical negligence claims.

However, for now is still possible to obtain Legal Aid to cover the legal costs of pursing a civil claim involving clinical negligence or mental health.

Public funding is granted by the Legal Services Commission (LSC). More details can be found on their website www.legalservices.gov.uk/civil.asp.

To arrange public funding, a solicitor must have a contract with the LSC, so it is important to check this when you are thinking about which firm to instruct to represent you.

The criteria for public funding are restrictive, but less so for children’s claims. A solicitor should be able to advise at an initial meeting whether public funding is likely to be available for the claim.

Prospects of success

For the LSC to grant public funding it needs to be convinced that a claim has a more than 50% chance of being successful – in other words, that it is more likely that you will win than lose. The LSC also assesses the child’s financial means. If the child does not receive any regular income, but may have a savings account in their name, it should be possible to receive public funding if assets are no more than £3,000.

If the child has savings of more than £3,000 but less than £8,000 a monthly contribution may be required. This means that you would pay a fixed sum per month to the LSC as a condition to be granted Legal Aid for the whole claim.

If Legal Aid funding is granted then a certificate is issued and the child’s legal representative’s fees will be covered from the date of this certificate. It will not cover fees incurred, including for an initial meeting with a solicitor, before the certificate has been issued. So it is important to establish with the solicitor what fees will have to be paid before the certificate is issued.

If a child wins their case and receives damages, then usually all of the legal fees are recovered from the other side. If the case has to bestopped or is lost, then the LSC pay the solicitor’s fees. It is extremely unlikely that a publicly funded child would ever have to pay opponents’ fees under the current system. However, the government’s current review of both legal aid and civil litigation funding may change that.

Legal Help

Legal Help allows people with a low income to get free legal advice and help from a solicitor or an experienced legal adviser. The solicitor or adviser must have a contract with the LSC to be able to provide Legal Help.

Legal Help is limited funding for instructing a solicitor to investigate the circumstances of the claim, assess its prospects and prepare a case. It does not include the costs of actually bringing a claim in the courts.

The rules of eligibility are similar to that for Legal Aid.

There are several other common forms of funding for personal injury and clinical negligence claims. These include Conditional Fee Agreements (commonly known as “no-win-no-fee”), and Legal Expenses Insurance, which will be covered in the next issue.

James Davies is a member of Cerebra and an experienced solicitor specialising in representing victims of brain injury.