Funding your claim in Scotland
You should always be able to get free initial legal advice from a solicitor. You should never be afraid to proceed with your child’s case because of the fear of legal costs. Every solicitor is required to advise you in writing of the basis on which you are to be charged and you should ensure that this written document reflects your understanding of who will be responsible for the legal costs.
Legal Aid
Unlike England, Legal Aid is available in Scotland for all personal injury cases. Legal Aid is means tested and the information about income and savings relates to the income and savings your child has. If the case is unsuccessful and you have Legal Aid the Court will make an award against you on behalf of your child in respect of the defenders expenses. The Scottish Legal Aid Board says in their leaflets “Sometimes, a court may order you to pay your opponent’s costs, or you may agree to pay them. In either situation, you must pay any such costs yourself – we cannot pay them for you.”
The Court may, however, restrict your liability to pay the defenders expenses but there is no guarantee this will happen. Using Legal Aid can also restrict your choice of Solicitor as not all Solicitors who are specialists in dealing with cases for brain injured children will deal with your case using Legal Aid.
Legal Costs Insurance
You may have legal costs protection as part of your motor, household or travel insurance. This is likely to give you legal cover up to a certain amount. It will also protect you if you lose your case but only to the maximum amount of the cover. You are unlikely to be able to choose the Solicitor that you wish to conduct your child’s case as the insurers will insist that they appoint a Solicitor on their panel and there is no guarantee that the Solicitor will have any experience of brain injury.
No Win No Fee with Indemnity
This is the best option in Scotland to pursue a claim for damages on behalf of a brain injured child.
It is absolutely essential in your discussions with a Solicitor that it is agreed, and set out in writing, what will happen in the event of the case being unsuccessful, who will pay the outlays as the case progresses and in the event of your failing to beat any offer that the defenders make – this offer is called a Minute of Tender.
Many Solicitors who advertise No win No fee services simply mean that in the event of the case being unsuccessful they will not charge a fee but they will expect you to pay for the medical and other reports as the case progresses as well as the defenders costs. You should avoid such an arrangement as it will leave you with the risk of substantial liabilities.
Your solicitor may offer you a Written Speculative Fee Charging Agreement. You will still need to ensure there is indemnity against costs in losing the case.
You should therefore only instruct a Solicitor on a No win No fee who can establish in writing how you will be protected against any liability for costs if the case is unsuccessful. Such an arrangement will mean you are likely to have to pay a proportion of the damages recovered in exchange for that financial risk being removed – this is the equivalent of a success fee. Unlike England this amount is not recoverable from the defenders.
Access to funding and protection against the case being lost is crucial to recovering fair and prompt compensation.
Author: Robert T Swanney, Partner, Digby Brown LLP