Legal Aid: During Your Case

If your application for Public Funding is successful, there are a number of things which you should bear in mind.

Your Obligations

Above all, you should remember that you are under a duty to inform the Legal Services Commission if your financial circumstances change in any way. If your income goes up, you may be required to start paying a contribution (if you weren't doing so before), or pay a larger contribution (if you were). This is very important - if the LSC discover that you have not informed them of such a change in circumstances, your Funding may be cancelled ("revoked"), and you may find yourself liable for your costs, including costs already incurred under the certificate.

Equally, you may apply for your means to be reassessed yourself, if your income has gone down. This may have the effect of lowering any contribution you have been making, or even relieving you of it entirely.
Sometimes (particularly if your certificate has been in force for a long time), the LSC will ask you to provide them with updated details of your financial circumstances, even if it has no reason to suspect that you have failed to inform them of any changes. In such cases, you have to comply with their request. If you have kept them informed of all changes in your circumstances, this process should not have any effect on your Funding, or the level of any contribution you are making.

What your Funding Will Cover

Public Funding is not a "blank cheque" for your solicitor to spend as he or she pleases: every certificate includes limitations as to what work may be done, and how much expense may be incurred.

In the first instance, your solicitor will almost certainly obtain a certificate that covers his or her work in the "investigative" phase of your claim (see our guidance on How a Clinical Negligence Claim Works). This limits the funded work to obtaining medical records, seeking expert opinion, and then getting advice from Counsel.

Certificates are also limited as regards the amount of expense that can be incurred: the initial limit can be raised if necessary but, before it will do so, the LSC requires evidence to show that your claim has merit (the initial investigations undertaken by your solicitor should provide this).  The LSC will also take into consideration the risk involved and the costs/benefits ratio.

If, having completed the investigative phase of your claim, your solicitor advises you that your case is worth pursuing into the second, formal phase, he or she will apply to the Legal Services Commission for a "full" certificate, setting out the basis on which your claim is to be fought. If the LSC grants full representation, this will cover the expenses that will be incurred in bringing your claim to a conclusion (including, if necessary, cover for the significant costs of a Trial).  The LSC may expect you to consider mediation as a means of resolving part or all of your claim. In certain circumstances your funding will be withdrawn if you refuse.

Discharge and Revocation

The Legal Services Commission have the right to take Funding away if, for one reason or another, they believe that you are no longer entitled to support. There are two ways in which they can do this: discharging your certificate or revoking it.

If the LSC discharge your certificate, this means that you will not receive any further Funding. Funding is discharged when, for example, a funded Claimant's financial circumstances change in such a way as to make them ineligible for Funding, or when the LSC believes, on the evidence provided by the funded party and/or their solicitor, that their case is no longer worth pursuing. Funding may also be discharged if you fail to keep up with the payment of any contributions you are obliged to make.

In some cases, a certificate is discharged because the Claimant is no longer financially eligible for Funding, and the Claimant then pursues his or her claim with an alternative source of support. In these cases, the costs that have been incurred under the CLS Funding certificate are not charged to you in the immediate term. However, if you go on to be successful in your claim, the LSC is entitled to repayment of the money it has spent. In most cases, it will be possible to obtain such costs from the Defendants but, if there is a shortfall between the money paid out by the LSC and the money recovered from the other side, you may be obliged to meet this from your damages. This is much the same as is the case at the conclusion of a case that has been funded by the LSC throughout (see At the End of your Case).

If the LSC revoke your certificate, this means that you will not receive any further Funding, and you will have to repay them all the money that they have provided so far. You will also be liable for any costs accrued by the Defendants. It goes without saying that this is an extremely serious penalty. Revocation of a certificate only occurs when a funded Claimant is found to have deliberately misled the LSC or the Court, either as regards their case or their financial circumstances. So long as you are honest in your dealings with the LSC and your solicitor, there is absolutely no reason why you need to worry about this happening to you.

In almost all cases, the LSC will give you notice of their intention to discharge or revoke your certificate, and you will have the opportunity to tell them why they should not do so, so you should not worry about losing your Funding "out of the blue".