No Win No Fee Medical Negligence Claims

What Is a Conditional Fee Agreement?

A Conditional Fee Agreement (CFA) — colloquially known as No Win No Fee — is a funding arrangement under which a solicitor agrees to act for a client without requiring payment of fees unless the claim succeeds. CFAs are regulated by the Courts and Legal Services Act 1990 and the Conditional Fee Agreements Order 2013.

Under a CFA:

• You do not pay your solicitor's fees while the case is running
• If the claim fails, you pay no solicitor's fees
• If the claim succeeds, you pay your solicitor's standard fees plus a success fee (see below)
• Your solicitor's fees are ordinarily recovered from the losing defendant as part of the costs order — so the compensation you receive is not usually depleted by solicitor's fees, though exceptions apply

CFAs are the dominant funding method for clinical negligence claims in England, Wales, Scotland, and Northern Ireland. Legal aid for clinical negligence is not available to most adult claimants (it remains available for birth injury cases involving children under the Legal Aid, Sentencing and Punishment of Offenders Act 2012).

The Success Fee

The success fee is an uplift on the solicitor's base costs that compensates the solicitor for the risk of not being paid in cases that fail. Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012), success fees are no longer recoverable from the opposing party — they must be paid by the claimant from their damages.

LASPO caps the success fee at 25% of the claimant's damages, but this cap applies to specific heads of damage only:

• General damages for pain, suffering and loss of amenity
• Past financial losses (pre-trial special damages)

Future losses — including future care, future loss of earnings, and future medical expenses — are excluded from the cap. In high-value catastrophic injury cases, where future losses dominate the award, the practical impact of the 25% cap is limited because the majority of the compensation is not subject to it.

The solicitor must explain the success fee — and its impact on the claimant's net recovery — clearly in the CFA retainer document. The claimant must sign to confirm they understand and accept the terms.

After-the-Event Insurance

After-the-event (ATE) insurance is a policy taken out after the negligent event to protect the claimant against the financial risk of losing. In a clinical negligence claim, the primary risk ATE covers is the defendant's legal costs — in England and Wales, the losing party ordinarily pays the winner's costs.

Key features of ATE in clinical negligence:

• The premium is deferred — it is not paid until the claim resolves
• If the claim fails, the ATE insurer covers the defendant's costs (within the policy limits) — the claimant pays nothing
• If the claim succeeds, the ATE premium is payable — but since LASPO 2012, it is not recoverable from the defendant. The premium is instead deducted from the claimant's damages
• ATE premiums in clinical negligence cases are substantial because the cases are complex and defendant costs are high

The solicitor will arrange ATE insurance on your behalf as part of the case setup. You should be provided with full details of the policy and premium at the outset.

If Your Claim Is Unsuccessful

Under a properly structured CFA with ATE insurance, a claimant who loses a clinical negligence claim should have no liability for:

• Their own solicitor's fees (waived under the CFA)
• The defendant's legal costs (covered by the ATE policy)
• Expert witness fees (usually covered by the ATE policy)
• Court fees (usually covered by the ATE policy)

This genuine protection against financial risk is the principal benefit of the CFA/ATE model for claimants. However, it is important to understand the limits:

• If you provide false or misleading information to your solicitor or the ATE insurer, the policy may be voided
• If you fail to follow your solicitor's reasonable advice — for example, rejecting a reasonable Part 36 settlement offer — costs protection may be reduced
• The ATE policy will have policy limits — in very high-value claims, the policy limit must be sufficient to cover the potential costs exposure

If Your Claim Succeeds

Where a claim succeeds — by settlement or judgment — the claimant receives their compensation. From that compensation the following deductions may apply:

1. Success fee — up to 25% of general damages and past losses
2. ATE premium — the deferred insurance premium, which varies by case value and complexity
3. Any unrecovered costs — in some cases, particularly where costs are reduced by the court or where a Part 36 offer was not beaten, some solicitor's costs may not be recovered from the defendant

The solicitor must provide a clear financial statement at the conclusion of the case showing the gross compensation, all deductions, and the net sum received by the claimant.

Read more about how compensation is calculated →

The Merits Assessment

Solicitors do not offer no win no fee terms to every person who contacts them. Before agreeing a CFA, a specialist clinical negligence solicitor will conduct a merits assessment — considering:

• Whether breach of duty can arguably be established
• Whether causation can arguably be established
• Whether the case has sufficient value to justify the costs of investigation (clinical negligence investigation is expensive — expert reports alone can cost several thousand pounds)
• What the litigation risk is — i.e. the realistic prospect of the defendant defeating the claim at trial

Solicitors who take cases on CFA terms only accept cases they believe have a realistic prospect of success. The CFA model provides a market-based quality filter — if a solicitor declines to offer a CFA, it is a meaningful signal about the strength of the case.

Alternative Funding Options

Legal expenses insurance (LEI)

Some household and motor insurance policies include legal expenses insurance that covers clinical negligence claims. Claimants should check all existing insurance policies — including those held by a spouse or civil partner — before entering a CFA.

Legal aid

Legal aid for clinical negligence is available only in limited circumstances — principally for neurological birth injury cases brought on behalf of children who lack capacity. For most adult claimants, legal aid is not available.

Private funding

Claimants with sufficient means may instruct a solicitor on privately paying terms. This avoids the success fee but carries the full costs risk if the claim fails. Private funding is less common in clinical negligence than in commercial litigation.

Litigation funding

Third-party litigation funding — where an external funder provides capital in exchange for a share of the proceeds — is available in some high-value clinical negligence cases, though it is less common than in commercial litigation.

Scotland and Northern Ireland

Scotland

CFAs are not used in Scotland. The equivalent funding mechanism is a Damages-Based Agreement (DBA), sometimes referred to as a speculative fee arrangement. Under a Scottish speculative agreement, the solicitor waives fees if the case fails and charges an agreed percentage of the recovery if it succeeds. ATE insurance is available in Scotland and operates on broadly similar terms. Read more about Scottish claims →

Northern Ireland

CFAs are available in Northern Ireland on equivalent terms to England and Wales, subject to the Conditional Fee Agreements (Northern Ireland) Order 2005. Read more about Northern Ireland claims →

Related Guides

• More medical negligence questions answered in the FAQ
• Glossary — CFA, ATE insurance, QOCS explained
• How to start a medical negligence claim