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Plaintiffs in personal injuries and medical negligence cases

Personal injuries cases are cases where an injury to the Plaintiff is alleged to have been caused by the wrongful act of the Defendant. Medical negligence cases are a particular type of personal injuries case where the injury is alleged to have been caused by the breach of duty of care by a Defendant who is a medical professional.

These types of cases will often be taken on by a private solicitor on what is known as a “no foal no fee” or conditional fee arrangement. What this means is that the private solicitor will agree that they will not issue any bill of costs until and unless they agree a settlement with the Defendant or are successful in obtaining damages for their client in Court.

A person seeking legal services in relation to taking a claim in personal injuries or medical negligence must be advised by a law centre at the first point it becomes clear that their claim is for personal injuries or in medical negligence that they should seek two letters from private solicitors that they would not be willing to take on the case on a no foal no fee arrangement.

A law centre is not allowed to stop processing an application merely because the letters are not obtained. Indeed, it should process the case as normal and offer a first consultation and in due course a second consultation. At each consultation the person should be advised that they should seek the letters from the private solicitors and the standard letters offering consultations have been amended to advise the person in such terms.

If you receive an application for legal aid to take a claim for personal injuries or in medical negligence:

  1. Check the date of application on EOS
  2. Where it is after 24th February 2015, ask the law centre to scan and upload to EOS the two letters which the applicant has provided from private solicitors stating that they are unwilling to provide services on a no foal no fee basis.
  3. Check that the letters have been scanned and uploaded and that they are from genuine private solicitors                        

Grant the application if (both factors must be true):

  • The letters have been provided and are from genuine private solicitors
  • The applicant must satisfy the normal criteria to grant legal aid for a Plaintiff in a non-family law case

Consider refusing the application if (all factors must be true):

  • The application was received after 24th February 2015
  • The two letters have not been provided without any reasonable explanation
  • There are no extenuating circumstances (e.g. hardship would result if they were unable to take the claim) that would weigh in favour of granting legal aid to the applicant.

Scenario

You have received an application for legal aid to take a personal injuries claim. The solicitor advises that the law centre have advised the applicant to attempt to retain a solicitor on a no foal no fee basis but the applicant refuses to do so on the basis that “Its my right to legal aid”. The solicitor is recommending refusal under s28(4)(a). There is no suggestion that the applicant would suffer any hardship from failing to take the claim, and no other extenuating circumstances that you have been advised of.

Sample decision

Having had regard to section 28(4)(a) of the Civil Legal Aid Act 1995, the Board is refusing legal aid

The reasons for this decision are:

Section 28(4)(a): Notwithstanding subsection (2), the Board may refuse to grant a legal aid certificate if it is of the opinion that…the applicant may obtain the cost of the proceedings the subject matter of the application from, or be provided with legal representation by, a body or association of which he or she is a member or any other source


Reason: The Board considers that you would be able to obtain the cost of proceedings through a “no foal no fee” arrangement with a private solicitor.