Kerry Underwood

LEGAL AID IN PERSONAL INJURY WORK

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The only area in which Legal Aid remains available in personal injury work is in a claim for damages in respect of clinical negligence which caused a neurological injury to a child as a result of which the child is severely disabled, but only where the first and second conditions are met.

The first condition is that the clinical negligence occurred while the child was in his or her mother’s womb, or during or after the child’s birth but before the end of the following period –

  • If the child was born before the beginning of the 37th week of pregnancy, the period of 8 weeks beginning with the first day of what would have been that week;
  • if the child was born during or after the 37th week of pregnancy, the period of 8 weeks beginning with the day of the child’s birth.

The second condition is that the services are provided to the child, or the child has died and the services are provided to the child’s personal representative.
Section 23, Schedule 1, Legal Aid, Sentencing and Punishment of Offenders Act 2013

That is the only area of personal injury work for which Legal Aid is available.

In April 2013 the Legal Aid Agency published the Legal Aid Agency Clinical Negligence Funding Checklist.

If the likely final costs exceed £25,000 then a Very High Costs Contract will be entered into. Those contract terms are unaffected by this Funding Checklist.

These staged sums represent the maximum that is likely to be authorised and payable by the Legal Aid Agency if the case is unsuccessful and the sums can be revised downwards to keep cases within The Civil Legal Aid (Merits Criteria) Regulations 2012 in relation to cost-benefit ratios.

Those cost-benefit ratios are:

For cases with over 80% prospect of success: costs must not exceed expected damages.

For cases with 60%-80% prospect of success: costs must not exceed half expected damages.

For cases with 50%-60% prospects of success: costs must not exceed one quarter of expected damages.

Successful claimants’ solicitors’ costs will be paid at the usual assessed between the parties rates.

The stages are:

1 – The Investigative Stage

2 – Issue of Proceedings to Mutual Exchange

3 – Settlement

4 – Trial

5 – Quantum Investigations

6 – Quantum Trial

Hourly rates (First £25,000)
Solicitor – £108 per hour (this includes enhancement)

Queen’s Counsel (in High Court) – £180 per hour

Senior Junior acting alone – £135 per hour

Led Junior Counsel – £112.50 per hour

Medical experts – the rates that will be authorised for the most commonly sought experts are in The Civil Legal Aid (Remuneration) Regulations 2013.

(Form CIVAPP8A must be completed if you are seeking a higher rate for an expert)

Hourly rates (post £25,000)
Solicitor – £70 per hour

Senior Counsel – £90 per hour

Junior Counsel – £50 per hour

Simplified claims for payment
Where you have agreed costs limits with the Legal Aid Agency using the Funding Checklist you must submit the following:

– Claim 1
– The Funding Checklist
– Time recording sheets for each stage
– Counsel’s fee notes
– Disbursement vouchers

If the Checklist is answered in full and the costs limitations agreed there is no need to provide a separate case plan or detailed costs schedule.

Investigative Help (Stage 1):
Includes:
– Attendance on client
– Medical records
– Client statement(s)
– Instructing experts
– Considering reports
– Supplementary questions to experts
– Instructing counsel
– Conference(s) with counsel and experts
– Protocol letter and response

1 expert – £4,500

2 experts – £6,750

3 experts – £9,000 – £13,500

4 experts – £13,500 – £18,000

5/6 experts (+ MRI) – £20,250 – £22,500

For authorisation of the above sums you must:

– Provide a brief statement (in addition to any client statement) including date of injury, date of knowledge, nature of injury, prognosis (if known), likely particulars of negligence

– State whether there any additional risk factors e.g. limitation, multiple defendants, client credibility (client evidence conflicts with medical records)

– List all medical experts likely to be instructed before proceedings are issued and in relation to each:
o Discipline of expert (and name if known)
o Medical issue the expert will address
o Proposed order of instruction
o Approximate timetable for instruction and receipt of report

– State whether there been any informal or informal admissions (e.g. through the Complaints procedure)?

– Provide an estimate of costs:
o To date (if any)
o To conclude investigative stage (Stage 1)
o To conclude settlement
o To conclude trial

– State whether a split trial likely to be appropriate? (In a case where numerous quantum experts are required the assumption will be that funding is provided on the basis of a split trial unless liability/causation is conceded or a realistic offer of settlement has been made)

– Provide an estimated date for pre-issue conference with counsel and expert

– Provide an estimated date for final hearing

– Provide an estimate of general and special damages, specifying likely heads of damage. A broad estimate is acceptable if quantum is complex or the prognosis unclear.

– The assumption at this stage is that prospects are unclear. You must confirm whether this is the case or not.

Issue of Proceedings – Mutual Exchange (Stage 2):
Includes:
– Issue/service
– Allocation questionnaire
– Case Management Conference
– Considering Defence
– Experts’ consideration of defence/revision of reports
– Exchanging statements and reports
– Part 35
– Conference with counsel and experts

There is an assumption that Leading Counsel may be involved in a 4/5 expert case.

1 expert – £6,750

2 experts – £9,000

3 experts – £10,750 – £13,500

4 experts – £14,250 – £16,750

5 experts -£16,750 – £19,000

For authorisation of the above sums you must:

– Provide a brief updated report on case including particulars of negligence, causation, injury and prognosis, defendant’s response to letter of claim, any formal or informal admissions. Are there any additional risk factors e.g. limitation, multiple Defendants, client credibility?

– List all medical reports obtained and in relation to each:
o Discipline of expert and name
o Medical issue addressed
o Specific conclusion of each expert

– State whether a split trial is likely to be appropriate and give a brief reason. (In a case where numerous quantum experts are required the assumption will be that funding is provided on the basis of a split trial unless liability/causation is conceded or a realistic offer of settlement has been made).

– Provide an estimate of costs:
o To date
o To conclude mutual exchange (Stage 2)
o To settlement
o To trial

– Provide an estimate of general and special damages specifying heads of damage. A broad estimate is acceptable if quantum is very complex or the prognosis unclear.

– Provide the prospects of success in percentage terms

– State the likelihood of settlement

– Provide an estimated date of final hearing

– Submit copies of all reports, Notes of Conference or Counsel’s Advice and Defendant’s letter of response.

Settlement (Stage 3):
Includes:

– Considering quantum reports (preliminary quantum reports if the case is proceeding by way of split trial)

– Instructing experts for meetings and revision of reports

– Making Part 36 offer

– Considering response, settlement meeting/negotiations.

1 expert – £6,750

2 experts – £6,750 – £9,500

3 experts – £12,000 – £14,250

4 experts – £19,000

5 experts – £21,750

For authorisation of the above sums you must:

– Provide a brief updated report on case including a brief summary of the defence theory, any formal or informal admissions and any other risk factors

– State whether the case is proceeding by way of a split trial

– Prospects of success (if case does not settle) in percentage terms

– Provide an estimate of costs:
o To date
o To settlement (stage 3)
o To trial

– Provide an estimate of general and special damages

– Submit a copy of Notes of Conference or Counsel’s written Advice

Trial – Full Trial or Liability only (Stage 4):
Includes:
– Pre-Trial Review
– Finalising statements
– Conference
– Trial bundle
– Trial preparation
– Attendance at trial.

There is an assumption that in a 4/5 expert case, leading Counsel may be involved and that a five day trial is likely.

1 expert – £6,750 – £9,500

2 experts – £12,000 – £14,250

3 experts – £19,000 – £28,500

4 experts – £35,750

5 experts – £40,000

For authorisation of the above sums you must:

– Provide a brief updated report on case including a summary of key issues in dispute, any admissions, outcome of any settlement negotiations including details of offers made/rejected and any other risk factors

– List all medical experts to attend trial and in relation to each:
o Discipline and name
o Issue they will address
o Specific conclusion of each expert
o Summary of defendant’s expert’s view

– State the prospects of success in percentage terms

– Provide an estimate of costs:
o To date
o To conclude trial (stage 4)
o To conclude quantum trial if appropriate

– Provide an estimate of general and special damages

– Provide the defendant’s valuation of claim

– State the prospects of beating any Part 36 offer and advice to client

– Submit copies of joint expert reports and Notes of Conference or written Advice

Quantum Investigations (Stage 5):
Includes:
– Instructing experts
– Considering reports and defendant’s reports
– Revision of reports
– Schedule of loss
– Indexation issues
– Conference
– Settlement negotiations.

8 -10 quantum expert case – £34,000

For authorisation of the above sum you must:

– Specify number and disciplines of experts

– Detail any offers to settle and response

– Provide an estimate of costs:
o To date
o To conclude quantum investigations (stage 5)
o To conclude the quantum trial

Quantum Trial (Stage 6):
Includes:
– Pre-Trial Review
– Finalising witness statements
– Conference
– Trial bundle
– Trial preparation
– Attend trial

8 – 10 quantum expert case and five day trial -£41,000

For authorisation of the above sum you must:

– Please specify number and disciplines of experts attending trial

– Detail any offers to settle and response and likelihood of beating any Part 36 offer

– Provide an estimate of costs:
o To date
o To conclude quantum trial (stage 6)

– Submit claimant and defendant schedules of loss

Please note that the Legal Aid Agency is likely to authorise a maximum of £178,250 in total for a fully contested cerebral palsy case (split trial) with five liability and ten quantum experts where all six stages are completed.

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Written by kerryunderwood

May 29, 2014 at 1:28 pm

Posted in Uncategorized

One Response

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  1. […] Kerry Underwood reports on that now very rare topic of Legal aid in personal injury work. […]


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