Jurisdiction(s):
United Kingdom

Key definition

Negligence definition

What does Negligence mean? In legal practice, negligence describes a failure to take reasonable care that results in foreseeable harm or loss. It is proved by establishing: (i) a duty of care, (ii) breach of that duty measured against the objective standard of a reasonable person, (iii) causation (factual “but for” cause and legal scope/remoteness), and (iv) recoverable damage. The concept is defined and developed by case law. A classic formulation is that negligence is omitting what a reasonable person would do, or doing what a prudent person would not (Blyth v Birmingham Waterworks (1856) 11 Ex Ch 781). The test is objective: the

Clinical negligence claims: funding options, switching from legal aid, costs assessment, QOCS and key case law in England and Wales

Published by a LexisNexis PI & Clinical Negligence expert

Practice notes

Funding

Typical routes to finance a clinical Negligence claim are:

Legal aid/public funding
conditional fee agreement (CFA)
after the event (ATE) insurance
before the event (BTE) insurance
Damages-based agreement (DBA)

Courts have examined whether moving from legal aid to a CFA was sensible. In Surrey v Barnet and Chase Farm Hospitals, the Court of Appeal found the switch was unjustified because the advice overstated the drawbacks of staying on legal aid and did not refer to losing the Simmons v Castle 10% increase on general damages.

In XDE, the Court of Appeal confirmed Surrey was not confined to situations involving the Simmons uplift; assessing the reasons for changing funding is a generally applicable exercise.

Where a solicitor’s decision to change funding is questioned, they must provide a detailed witness statement setting out the rationale.

Legal aid

From 1 April 2013, legal aid for clinical negligence claims is only available in limited circumstances.

Note that the key factor is the date of the negligence

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David Willink

Lamb Chambers

As a civil servant in the Lord Chancellor’s Department, now the Ministry of Justice, David gained extensive experience in government, including responsibility for civil law reform in the areas of contract, trusts and privacy & freedom of expression. He appeared before Select Committees in both Houses of Parliament, and represented the UK in Brussels, Luxembourg, Strasbourg and Salzburg. He was responsible for the defence of domestic libel law in Steel & Morris v United Kingdom [2005] ECHR 103 (‘McLibel’). He also held responsibility for advice on appointments to Queen's Counsel and senior judicial office.At the Bar, he has maintained a broad civil practice, acting for claimants and defendants across the areas in which chambers practise. He accepts Direct Access instructions in appropriate cases. In addition, he has developed a practice in all aspects of ecclesiastical law, and is the Deputy...

Web page updated on 21/05/2026

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