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Bringing a birth injury claim: funding

Posted: 07/06/2021

The first and second articles in this series, which can be found here and here, looked at the legal tests that must be established to bring a birth injury clinical negligence claim: namely, breach of duty/negligence and causation.

The main routes for funding a severe birth injury case concerning a brain injury sustained by a child are considered below.

Legal expenses insurance: an existing insurance policy may provide cover for legal expenses in a clinical negligence claim. This is usually called 'legal expenses insurance' but is also known as ‘legal protection’ or ‘family legal protection’. 

Legal aid: legal aid is available in cases where a severe neurological injury has been sustained by a child during pregnancy, birth or the first eight weeks of life. Such funding can only be offered by firms with a legal aid contract.

Conditional fee agreement (CFA) with after the event insurance: CFAs are sometimes known as ‘no win, no fee’ agreements, as a solicitor will not charge for their costs if the claim does not succeed. It is usually advised that after the event (ATE) insurance is taken out to protect against any adverse costs and to cover the cost of the disbursements incurred if the claim is unsuccessful.

There are advantages and disadvantages to each of the different types of funding, which should all be considered carefully in individual cases.

The final article of this four-part series will consider the types of claim that can be made in a severe birth injury case where a brain injury has been sustained by a child.

If you wish to discuss any of the issues mentioned in this article, please do not hesitate to contact the specialist birth injury team for an initial discussion about your options.

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