Your solicitor should be able to tell you at your first meeting about the time limits for starting formal court proceedings. This is 3 years from the alleged date of negligence or date of knowledge of the injury if later. 

The date of knowledge will be the point that you first knew or could reasonably have known of the negligence. 

For a child, the 3 years does not start until age 18, so you will have up to 21 years if the injury happened at birth.

If the injured person has a significant intellectual impairment, whether or not from the injury, they will need to be assessed to determine if they lack capacity to litigate. This means to bring the claim themselves. If expert evidence determines that they do lack capacity to litigate, the limit of 3 years will not apply. So it is worth enquiring, even if the person is over 21.

It is best to start an investigation as early as possible, while things are likely to be clearer in your mind.

If the 3 year time limit is nearing it is important to seek urgent legal advice as it may be possible to enter into a standstill agreement effectively extending the time to bring the claim. 

Making a claim can be a long process. It depends on many things, such as:

• the availability of experts
• the complexity of the claim
• space in the court timetable
• disputes that arise between the parties

Unknown factors such as the final medical prognosis can also delay a settlement.

Once liability is admitted, it should be possible to agree interim payments to fund support such as care.

If you are making a claim on behalf of a child with a brain injury at birth or up to 8 weeks old, it is possible they will be eligible for Legal Aid Agency funding.

There must be a reasonable prospect of success. They will ask you if there are alternative ways to fund the claim.

The child is the claimant, so your finances as parents are not assessed.

Check if you can get Legal Aid (GOV.UK)

Your solicitor can explain the options for funding the initial investigation into any potential claim.

Your solicitor can discuss the best funding option for you, whether this is:

• Legal Aid
• Before the Event Legal Expenses Insurance
• or a Conditional Fee Agreement (no win, no fee)

Make sure:

• you know how the firm will charge your fees
• you know the likely costs of investigating a claim and taking a case to trial

Many firms will offer a Conditional Fee Agreement (CFA). This is sometimes called ‘no win, no fee’. This should ensure there is no financial risk to you if your claim is unsuccessful.

If you stopped the claim before it is complete, you would be liable to pay your solicitor’s basic costs.

Before accepting a case on a no win, no fee basis the solicitors may first wish to review the medical records and decide the strength of the claim. Most of the time they do not charge for that screening, but it is important to ask.

There are 2 stages to funding:

1. The initial costs of getting medical records, obtaining expert reports and gaining a barrister’s opinion if necessary.
2. The costs of the various stages leading up to and including a trial if the barrister supports the claim to proceed to court.

If you have unsupportive evidence, the funder is unlikely to support the next stage.

You should receive a client care letter. This will set out the firm’s fees and procedures.

Ask your solicitor how your case will be funded or how much you might have to pay.

Your solicitor must update you regularly on costs and progress.

The solicitor will choose independent medical experts to prepare their reports and they will have access to your:

• medical notes, records and radiology
• a witness statement prepared by your solicitor

The experts will either support the claim or say that a claim is not feasible.

It is important to note that an expert’s primary duty will always be to the court, not to the firm who instructs or pays them. They must provide independent, objective and unbiased opinions, even if their opinions do not support the instructing solicitor’s case.

Once you have agreed the source of funding, your solicitor will ask for copies of all relevant medical notes and records from the hospital and your GP. In order to do this, they will need to obtain your written authority.

Your solicitor will ensure the records are complete and put them in order. They will ask independent experts to prepare reports.

You can also ask for a copy of your records.

Your solicitor is required to keep your records secure and there are strict rules requiring them to retain your client file for around 7 years after a file closes. 

This will primarily look at 3 issues:

Breach of duty

Whether the standard of medical care fell below the expected standards and medical knowledge at the time of the alleged incident.

Causation

The link between the breach of duty and the injury. Did the medical staff’s failures in care cause of contribute substantially to the injury?

Quantum

The amount of compensation based on meeting the needs of the injured person.

It is for the Claimant to prove their case and expert evidence is needed to support all of the above issues.

If the experts report that the medical treatment was to an acceptable standard, there is unlikely to be a claim unless there are additional questions raised by the expert or information they need. The expert is likely to raise them in the report.

If they report that the medical treatment was below standard, this is known as a 'breach of duty'. There could be one or more breaches of duty. If the expert evidence supports that at least one breach of duty caused or in some cases materially contributed to the injury, your solicitor will draft the Letter of Claim.

Your solicitor should explain the reports to you in a meeting, possibly with a barrister and the experts if the case is complex. They will let you know whether they think you have a case and answer any of your questions.

In exceptional circumstances, you may ask your solicitor to get a second opinion from a different expert if the first is unsupportive. But you will probably have to pay for another report.

You also have the right to a second opinion from another firm of solicitors.

To bring a legal claim in their own name, a person must have mental capacity.

If they lack that capacity to litigate (which will need to be supported by medical evidence) or are a child (under 18 years old), another person can bring a claim on their behalf. This person is known as a 'litigation friend'. A child will need a litigation friend to bring a claim on their behalf. This will usually be a parent.

A litigation friend can also be a family member or friend where appropriate. In some cases, an ‘official solicitor’ will need to be appointed. This is an independent officer of the Court Funds Office, which is part of the Ministry of Justice and they only step in as a last resort to protect vulnerable individuals where there are no other suitable people.

The litigation friend will choose the solicitor, acting in the injured person’s best interests.

It is the injured person’s financial means that will determine whether they qualify for Legal Aid.

If not eligible, the litigation friend will be responsible for applying for alternative funding such as a Conditional Fee Agreement.

Finding free or affordable legal help (Citizens Advice)

If the experts support a claim, your solicitor will send a Letter of Claim to the defendant. This will include:

• background to the claim
• details of the breaches of duty and how these caused the injury
• and heads of loss giving an indication of the likely compensation sought

The defendant will have 4 months to respond. Sometimes they will ask for an extension.

If the defendant admits liability early on, you are likely to be able to request an interim payment to help fund expenses whilst the value of the claim is calculated.

Most cases are settled without the need to go to a trial. If the defendant makes an offer of compensation, your solicitor should be able to advise you.

A split trial will consider whether the Defendant(s) is liable before calculating the value of the claim. It will consider compensation later, because:

• until liability has been established, it may be a waste of legal costs to consider the level of compensation
• if a split trial on liability is successful, you can receive an interim payment while the full value of the claim is investigated

An advantage of a split trial is that it gives certainty potentially sooner and with lower costs.

If liability is proven, the next stage is for your solicitor to investigate quantum. Quantum means the financial losses because of what has happened.  

General damages

This is to compensate for the actual injury. It is sometimes referred to as Pain, Suffering and Loss of Amenity. There will be a lump sum payment for the actual injury. This is based on the 'Judicial College Guidelines' which is a published set of brackets for different kinds of injuries and other comparable case law.

Special damages

These are split into past and future and include any quantifiable losses, such as:

• loss of past and lifetime earnings
• care and expenses incurred because of negligence

Experts will quantify reasonable past and future expenses, such as:

• care
• equipment
• transport
• therapy
• accommodation and adaptations
• financial deputy

Costs

Your solicitor will also seek recovery for the costs of the action from the defendant.

If you have a Conditional Fee Agreement (no win, no fee), you may need to pay a financial contribution to your solicitor’s costs from your damages. Your solicitor will advise you of the likely amount at the outset and should keep you updated regularly as the costs contribution may include a success fee, unrecoverable costs and usually some of the Insurance premium.

Future expenses are calculated following advice from a range of experts such as:

• occupational therapists
• medical experts
• physiotherapists
• architects
• accountants
• employment and rehabilitation consultants

The amount awarded should reflect:

• the additional cost of accommodation adapted to meet the person's needs
• the cost of providing adequate care and specialist equipment
• loss of past and future earnings
• transport and mobility aids
• the extra costs of social and leisure activities
• other factors such as the cost of continuing education, occupational therapy, physiotherapy and speech and language therapy
• costs involved with administering the award in the Court of Protection

An award of compensation can be split into:

• a lump sum designed to meet past expenses and immediate future expenses
• a guaranteed inflation-linked, tax-free income (often called a Periodical Payment Order or PPO) to meet future predicted costs, such as care and case management

The Court will not allow the money awarded to be paid directly to a Claimant who lacks capacity. For an adult who lacks capacity a financial deputy will need to be appointed by the Court of Protection. This deputy will set up an account and manage the funds for the benefit of the Claimant. For a child under 18 it may be possible to either have a Trust managed by trustees or a financial deputy.

Become a deputy

This is to protect a vulnerable person from financial abuse. Parents usually work with a professional deputy in managing the award and making decisions. It is possible to include the costs of a professional deputy within the compensation claim.

For larger expenditure, such as buying a house, the Court of Protection will need to make an order to allow this. The Court also has to approve annual accounts.

Lump sum payments and benefits