What is a barrister’s opinion?

A barrister’s opinion (often called “Counsel’s Opinion”) is a formal, written piece of expert legal advice. It analyses the specific facts, strengths, weaknesses, and potential outcomes of a legal case. These opinions should provide clear, objective guidance, often covering topics such as likely damages, evidence requirements, and strategic next steps.

Will I win my medical negligence claim?

It’s the number one question that my clients ask. Why wouldn’t they?

A barrister’s opinion on the likelihood of a successful outcome in a clinical dispute can be very detailed. However, it can ultimately come down to one number expressed as a percentage. That number is 50. If the barrister believes that your claim has a better than 50% chance of succeeding, they are saying that they think the claim is more likely to succeed than not.

Why is this number and this opinion important?

You ask the simple question, “will I win my medical negligence claim?” Every solicitor wants the answer to this. They need the answer before they take on any new medical negligence case on a no win no fee basis. Later in the case (even while you are a client) they will have to ask and re-ask this question.

Even after they begin to represent you, your solicitor will regularly need to reexamine whether they should continue acting on this basis.

As the claim progresses, positions become clearer. New evidence arrives. Circumstances change. Consequently, your solicitor will need to reassess your case. On its simplest level, the question can be rephrased. Is it worth risking working on this case for no payment now? This risk is taken in anticipation of a large pay day when the claim finishes.

To help make this decision, clients and solicitors often request that a barrister drafts a written opinion. This helps assess the likely success of any case. This document and opinion serves another purpose though. The existence of the opinion increases the possibility of your solicitor acting for you. The outcome of the opinion also boosts the chance of that representation being on a no win no fee basis. To understand why we need to look at how no win no fee representation is made possible. It involves a combination of lawyers and insurers.

No win no fee (acting under a conditional fee agreement).

A Conditional Fee Agreement (also known as a CFA) refers to the terms of a ‘no win no fee’ agreement. Under the terms of a CFA, the solicitor agrees to defer payment and take their fees only at the conclusion of the claim. They also agree to take on the risk of never being paid if the claim loses. Under this arrangement, your solicitor will usually recommend that you obtain an After The Event (ATE) insurance policy.

This policy pays for some of the expenses incurred in bringing a claim should it not be successful. Fees will include such things as the cost of securing medical expert opinion. Medical negligence cases tend to attract a lot of expert opinion. the more complex the case, the more opinions there are and the more detailed those opinions might be. As non medical people, the judge and the lawyers in court will seek to rely upon the breach report of a surgeon to comment on poorly performed surgery. Without this expertise, they would not be able to decide upon the standard of that surgery.

If you lose your case, your opponent will not be required to reimburse these expert costs. In theory, they will be covered by this ATE policy.

The solicitors service and the insurers policy are two separate legal things. However, to secure the CFA, you will usually need to secure the policy as well. To offer this policy, ATE providers must go through some form of due diligence. Part of this process will require them to assess the potential chances of winning a case. To assess the prospects of any case, ATE providers will often call on the services of a barrister. They will outsource this if they lack the time or the in-house expertise to form such an opinion themselves.

So why does a barrister’s opinion matter in a medical negligence claim?

1. Supportive written advice from a barrister on your case’s prospects can help you decide if it’s worth pursuing.
2. It can help you to secure no win no fee representation.

What does winning mean to you though?

It’s not a trick question. Most of the work I do is in medical negligence. I understand from colleagues at chambers that it is no different in other areas of litigation.

What is different in medical negligence is the motivations and aspirations of those who are making the claim. My clients often talk about ‘achieving justice’, not just winning, and not just getting compensation. In contrast, a road accident whiplash claimant’s goal is usually to get compensation. They typically are not making a principled stand in order to ensure the future safety of other road users. It’s an unsophisticated but useful comparison.

Many clients who bring an action against the NHS, GP’s or other health practitioners do so reluctantly. There is obviously a real recognition and empathy for those who work in the NHS. It is well documented that health workers work long hours. They struggle to meet the demands placed on them by the country’s taxpayers, as well as the injured and unwell. These claimants have no desire to punish anyone. They do however, frequently express a wish to protect others from being exposed to similar mistakes in the future.

Whether bringing a medical negligence claim against a hospital trust actually protects future patients is a discussion for another time. I can’t recall any evidence of it.

If you want to discuss your medical negligence claim or you need an opinion on the likelihood of succss I’d love to hear from you. Just click the contact link here.

Contact Michael