Obtaining legal advice, assistance and representation will incur a legal charge.
There are many options, but four main types:
(a) Public funding (Legal Aid)
(b) Private funding
(c) ‘No Win, No Fee’ arrangements.
(d) Legal Expenses Insurance
Solicitors will make charges based upon an hourly rate. The overall cost of the case will depend upon how much work is required and a complex case will cost more than a straightforward case. Most child abuse cases are complex and can involve investigations of records and events dating back many years. This can make cases very expensive to bring to court.
In addition to paying for the solicitor’s costs, every case will usually include fees from experts including psychiatrists, doctors, barristers and sometimes other specialist experts.
The legal system usually requires the losing party to a case to pay the winning party’s legal costs. A Claimant who brings a case and loses, however, will only be liable to pay for the Defendant’s legal costs in addition to his/her own legal costs in very few circumstances, which are too complicated to explain in this guide.
It is essential that anyone considering entering into litigation is fully aware of the expenses and implications involved.
Public funding / Legal Aid is presently available for any child abuse compensation claim where the person bringing the claim is financially eligible and where the case has legal merit. To read more about Legal Aid see this guide from the Government.
Where someone does not qualify financially for Legal Aid, the solicitor will consider whether it is appropriate to enter into a ‘Conditional Fee Agreement’ (a ‘CFA’) or what is sometimes misleading called a ‘No Win, No Fee’ arrangement.
It is essential that before entering into such an agreement, the terms of the arrangement are fully understood. In simple terms, the Claimant would not pay for his/her solicitor’s fees if the case was lost. However, they may still have to pay for expert’s fees, barrister’s fees and potentially, their opponent’s legal costs. It is sometimes advisable for an insurance policy to be taken out at the time of entering into a conditional fee agreement with the solicitor, to cover the eventuality of paying the opponent’s costs. The procedure is never as straight forward as it might sound.
Sometimes existing insurance policies for house contents, cars, health, etc. include legal cover for certain types of case. It would be very unusual for cover to be available for child abuse claims. It is, however, worth checking any policies you have, to see if the description of cover may include advice for abuse.
The other alternative is to pay the solicitor on a privately funded basis as the case proceeds. This will involve paying the solicitor money on a regular basis when a bill is delivered for work carried out, or in advance of certain expenses, such as medical reports or barrister’s fees.
Abney Garsden Specialist Abuse Litigation Team are able to offer confidential and professional advice on the merits and possible pitfalls in bringing a claim for compensation.
The ‘Legal Aid Agency’, has had several names over the years (Legal Services Commission, Legal Aid Board, Community Legal Service etc.)
It is now an executive Agency of the Ministry of Justice.
Whilst in the past it had laudable aims, to provide free representation to those who need and cannot afford it, recent cutbacks mean that is is now a cut down service which provides the bare minimum assistance for certain types of case, including abuse claims.
It provides much needed assistance to your solicitor, who may wish to investigate, and pursue an abuse claim.
To read more, go the Legal Aid Agency Website.
Many organisations, including solicitors, offer a set period (often 30 minutes) of free initial advice.
Alternatively, some solicitors offer an interview (generally of 30 minutes) for a fixed fee. You should ask if these services are available. During this interview, the solicitor will determine whether your case might qualify for Public Funding / Legal Aid
There are 2 hurdles to overcome before Public Funding may be offered to you:
1. Legal Merits Test – It will be necessary to satisfy the Legal Aid Agency that the claim has merit, although you do not have to prove at this stage that you will be guaranteed to win your case;
2. You must satisfy certain financial requirements. You may be asked for details of your financial circumstances and you may be provided with a lengthy form to complete. The Legal Aid Agency will then assess whether you are financially eligible.
In simple terms, provided your ‘disposable’ income and capital (savings) are below certain limits, then you may qualify financial for Public Funding. The Assessment will not be made by the solicitor.
As a guide to whether you might qualify financially for public funding, use the Legal Services online calculator. As rules change so often this method ensures that the advice on this page will not go out of date. The link is http://civil-eligibility-calculator.justice.gov.uk/
If you receive certain types of benefit, known as “passported benefits”, then financially you will qualify automatically for Public Funding of your case. You must still satisfy the Legal Service’s Commission’s Merits test.
Initially, upon assessment of your financial situation, you may be required to pay a contribution to the Legal Services Commission towards the costs of your case. Failing to pay such a contribution or falling into arrears with it could result in the discharge of your Public Funding Certificate, leaving you liable for your costs after the Certificate is discharged.
In the event of your case proving unsuccessful, you can be obliged to pay whatever the Court considers reasonable towards your opponent’s legal costs in all the circumstances. Generally, where you are awarded Public Funding, you are afforded some protection against paying your opponent’s costs if the case is unsuccessful.
If you are successful in recovering compensation in your case, the Legal Services Commission would require that some or all of your legal costs be deducted from your compensation. How much is deducted will depend on what your opponent pays towards your legal costs. The amount recovered by way of legal costs from an opponent rarely covers the entire costs involved in preparing the case and the Legal Services Commission is entitled to deduct the difference from your compensation or settlement. This deduction is called a “Statutory Charge”.
Once you have been granted Public Funding, you have a duty to disclose any change in your circumstances including a change of address or financial means. If there is any increase in your financial means during the time you are in receipt of Public Funding, this may effect the amount of any contribution you have to pay towards the costs of the case. As soon as there is any change in your circumstances, you have a strict obligation to inform the Legal Services Commission.
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