A firm declines when it is not satisfied that the claim has reasonable prospects of success, or when the cost of investigating it is more than the claim can carry. Both reasons are decisions about the firm's own risk. Neither is a finding that your treatment was reasonable.
Victoria has no certificate of merit. There is no mandatory pre-court notice and no compulsory medical assessment you must pass before you are allowed to start a proceeding. Queensland has a pre-court procedure under the Personal Injuries Proceedings Act 2002 (Qld). Victoria does not.
What Victoria has instead is a duty on the lawyer. A law practice must not act on a damages claim unless a lawyer reasonably believes the claim has reasonable prospects of success. That belief has to rest on provable facts and a reasonably arguable view of the law. A practice that breaches the duty can be ordered to pay costs personally. It is a rule about the lawyer's exposure, not a standard you have to satisfy.
| What you were told | What is actually being decided | Could another firm reach a different view? |
|---|---|---|
| The claim is not commercially viable | The cost of investigating is more than the likely claim can carry. Nothing has been decided about the care | Possibly. A firm with a lower cost of reaching an informed view can answer this differently on the same facts |
| Costs would be out of proportion to the claim | The same decision, in different words | Possibly, on the same basis |
| We are not satisfied there are reasonable prospects | A judgement about the evidence, made under the duty above. Often made before an expert has read anything | Sometimes. It turns on how much of the record was reviewed and whether an expert was briefed |
| An independent expert reviewed the care and considered it reasonable | A conclusion on the merits, reached on evidence | Unlikely. A further opinion rarely disturbs this |
| Causation cannot be established | The care may have been poor, but the harm cannot be linked to it on the available evidence | Rarely, unless further records or an expert in a different specialty change the picture |
| We do not act in this area | Practice mix or capacity. No view has been formed on your claim at all | Yes. This tells you nothing about the claim |
| The limitation period has expired or is close | A decision about time rather than merit. A court can extend in limited circumstances | Sometimes, but the clock keeps running while you look |
A rejection letter often does not say which of these applies. That silence is itself worth noticing.
This page is about why the decision goes the way it does. If what you need first is the order to do things in, start with Your medical negligence claim was rejected. What now? and come back here for the mechanism.
Does Victoria require a certificate of merit before you can sue?
Victoria has no certificate of merit. There is no mandatory pre-court notice and no compulsory medical assessment you must pass before you are allowed to start a proceeding. Queensland has a pre-court procedure under the Personal Injuries Proceedings Act 2002 (Qld), and a lot of material written for an overseas or interstate audience implies Victoria has something similar. It does not. What Victoria has is a duty on the lawyer, not a certificate you have to obtain.
This matters because the language people are given can sound like a test they failed. A firm that says it cannot certify your claim is describing its own obligation. No court has looked at your file, and no gate has been closed against you.
There is one recent change worth knowing about, and it is not a merits test either. From 1 July 2026 the Supreme Court's practice note for personal injuries litigation requires a plaintiff to compile critical medical and economic documents and serve them at the same time as the pleadings. That is case management and early disclosure. It sets out when documents have to be produced, not whether a claim is allowed to start.
What rule actually stops a firm from taking on a marginal claim?
The rule comes from the Legal Profession Uniform Law, which applies in Victoria through the Legal Profession Uniform Law Application Act 2014 (Vic). A law practice must not act on a damages claim unless a lawyer reasonably believes it has reasonable prospects of success. The belief has to be grounded in provable facts and a reasonably arguable view of the law. A hunch is not enough, and neither is a client's account on its own if the records do not support it.
The duty has teeth because of what follows a breach. Where a practice runs a claim without reasonable prospects, the practice itself can be ordered to pay costs. That is a liability on the firm and the lawyer, not on you.
Victorian civil procedure points the same way. The Civil Procedure Act 2010 (Vic) imposes overarching obligations on everyone involved in a civil proceeding, lawyers included, and one of them is that a claim must not be made without a proper factual and legal basis.
Read that together and the shape of the decision becomes clear. A careful firm declines a marginal claim because running it would put the firm's own money at risk. That is a rational thing for a firm to do. It is also, from where you are sitting, an answer to a question you did not ask. You wanted to know whether your treatment was reasonable. What you were told is whether a firm was willing to carry the risk of finding out.
One more consequence follows, and it surprises people. The duty binds law practices. It does not bind a person acting for themselves. A self-represented litigant is not required to obtain anyone's certificate before filing, though the practical difficulties of running a medical negligence case without expert evidence are considerable.
Why does it cost money to find out whether a claim is viable?
Because the evidence that answers the question has to be bought first. Nobody can tell you whether care fell below the standard by listening to what happened. It is decided on the records, and then on what an independent specialist says about them.
The sequence runs in one direction only, and each step has to be paid for before the next one can begin.
| Step in the investigation | What it establishes | Why it can end the claim there |
|---|---|---|
| Obtaining the complete records | What was actually done, and what was written down at the time | A partial file is the commonest reason a decision gets made blind |
| Organising them into a chronology | The sequence of events across every treater involved | Nothing can be assessed until the order of events is clear |
| An expert opinion on the standard of care | Whether the care fell below what was reasonable | An opinion that the care was reasonable usually ends it here |
| A further opinion on causation | Whether the substandard care caused the harm | Care can be poor and still not be the cause of the injury |
| An opinion on the loss | What the harm has cost you and will cost you | Decides whether the claim can carry the cost of proving it |
The answer to whether the claim is worth running arrives at the end, after most of the money has been spent.
That is the whole problem in one line. The investigation is a bet placed before the odds are known, and the firm deciding early is deciding while the odds are still hidden from it too.
Some of what it costs is published and some of it is not. Records fees are capped by regulation, and court filing fees are set out in the courts' own schedules, so both can be looked up. The expensive part is the part nobody publishes: there is no fee schedule anywhere in Victoria for a privately briefed medical negligence expert. The cost of the opinion that decides everything cannot be looked up in advance. What does it cost to investigate a medical negligence claim? sets out the published figures and where each of them comes from.
Getting the records yourself is the one part of this you can do without a lawyer and without explaining why. How to get your medical records in Victoria sets out how, and what to ask for so you receive the full file rather than a summary.
Why doesn't "no win, no fee" remove that problem?
No. The Victorian Legal Services Board and Commissioner says plainly that a no win, no fee agreement does not mean no cost. Disbursements such as expert reports and court filing fees may be payable whether you win or lose, depending on what your costs agreement says. A party who loses a court case is also usually ordered to pay the other side's costs. Read the costs agreement for who carries disbursements if the claim does not succeed.
So a conditional agreement moves the risk, it does not delete it. The firm takes on the risk of doing the legal work for nothing, and often the risk of funding the reports as well. The uplift that a firm may charge for accepting that risk is capped by the Uniform Law at 25 per cent of the legal costs, and the cap does not cover disbursements.
Now put yourself on the other side of the desk. A firm looking at a file with unclear liability, a modest likely claim and several thousand dollars of reports needed before anyone knows, is being asked to fund a question it may never get paid for asking. Firms answer that question early, on incomplete information, because the cheapest moment to decline is before the money is spent.
Where the sticking point is the size of the claim rather than the strength of the evidence, that is a separate question with its own answer. Is your claim too small for a lawyer to take? deals with the value threshold directly.
That is why a claim can be genuine and still be declined, and why the letter you received may have been written before anyone properly read your file.
Which reasons can another firm's review change, and which cannot?
Sometimes, and it depends on what the first firm actually did. Where the file was closed on cost grounds, or before your full records were reviewed, or without an expert being briefed, the merits have not really been tested and a second look can reach a different answer. Where the first firm briefed an independent expert and that expert concluded the care was reasonable, a further opinion is much less likely to change the position.
That second sentence deserves to be said without softening. An independent expert opinion is the evidence a claim stands or falls on. If one has already been obtained in the right specialty and it says the care met the standard, the honest answer is that shopping the file around is unlikely to help, and a firm that tells you otherwise is not doing you a kindness.
What can change is narrower, and it is worth knowing precisely what to ask the first firm:
- whether your complete records were obtained, or only part of them;
- whether an independent expert was briefed at all;
- which specialty that expert practised in, because the wrong discipline can miss the issue entirely;
- whether the opinion went to the standard of care, to causation, or to both; and
- whether the decision was about the evidence or about the cost of gathering it.
A claim declined on the last of those is a different animal from a claim declined on an expert opinion. Both arrive as a letter saying no. Only one of them has been tested.
When a second opinion is worth seeking, and what to take to it, is answered in Getting a second opinion on a medical negligence claim. It is also worth understanding what has to be proved in the first place, which How to establish a medical negligence claim sets out, and whether what happened to you was a recognised complication rather than negligence, which When a known complication is still negligence covers.
What should you do with a rejection letter?
Keep it, and read it for which of the reasons in the table above it actually gives. Many letters are carefully vague, and the vagueness is usually a clue that the decision was commercial rather than evidentiary. Your medical negligence claim was rejected. What now? takes that letter apart step by step.
Then ask the first firm the five questions above, in writing. You are entitled to your own documents from the file, including the records obtained for you and any expert report obtained for you. A firm may hold a file against unpaid costs, but where documents are needed for live proceedings they can generally be released to a new solicitor against an undertaking or reasonable security.
Watch the clock while you do it. Time limits run from when you knew or ought to have known the things that make up a claim, and nothing in the Limitation of Actions Act 1958 (Vic) stops the clock because a firm declined to act. Waiting for a decision is not added back to you. This is the practical danger of a rejection: people treat it as the end of the matter and look again much later, by which time the limitation position has become the problem. Does a rejected claim affect your time limit? answers that question directly, and Time limits for medical negligence claims explains how the periods work and the limited circumstances in which a court can extend them.
If another firm has declined your claim, you can start a free assessment and have it looked at independently. Our technology does the heavy work of organising records and building the chronology, and our lawyers review the evidence and make every legal decision. Reducing the cost of reaching an informed view is what lets a claim be assessed rather than declined on the maths. Send the rejection letter and anything you already hold. If the evidence supports going further you will be told what happens next, and if it does not you will be told that plainly.
Common questions
Why would a law firm decline a medical negligence claim?
A firm declines when it is not satisfied that the claim has reasonable prospects of success, or when the cost of investigating it is more than the claim can carry. The second reason is more common than people expect, because records and an independent expert opinion have to be paid for before anyone knows whether a claim is viable. Both reasons are decisions about the firm's own risk. Neither is a finding that your treatment was reasonable.
Does Victoria require a certificate of merit for a medical negligence claim?
Victoria has no certificate of merit. There is no mandatory pre-court notice and no compulsory medical assessment you must pass before you are allowed to start a proceeding. Queensland has a pre-court procedure under the Personal Injuries Proceedings Act 2002 (Qld), and a lot of material written for an overseas or interstate audience implies Victoria has something similar. It does not. What Victoria has is a duty on the lawyer, not a certificate you have to obtain.
If a firm declined my claim, does that mean my treatment was reasonable?
Not necessarily. A decision to decline is made by a firm about its own exposure, on the material in front of it at the time. In many declined claims no independent expert has read the records, so nobody has formed a view on whether the care fell below the standard. A firm protecting itself from a costs order is doing something quite different from a finding that your treatment was reasonable.
Does no win, no fee mean a claim costs you nothing if it fails?
No. The Victorian Legal Services Board and Commissioner says plainly that a no win, no fee agreement does not mean no cost. Disbursements such as expert reports and court filing fees may be payable whether you win or lose, depending on what your costs agreement says. A party who loses a court case is also usually ordered to pay the other side's costs. Read the costs agreement for who carries disbursements if the claim does not succeed.
Can another firm reach a different view on the same claim?
Sometimes, and it depends on what the first firm actually did. Where the file was closed on cost grounds, or before your full records were reviewed, or without an expert being briefed, the merits have not really been tested and a second look can reach a different answer. Where the first firm briefed an independent expert and that expert concluded the care was reasonable, a further opinion is much less likely to change the position.
How many good claims are never pursued because of cost?
Nobody knows, and anyone who gives you a number is guessing. There is no Australian research that measures how many meritorious medical negligence claims are never brought for cost reasons. What can be said is how the decision is made, which is what this page sets out. Treat any published figure on this with suspicion unless it names a study you can read.
Sources
- Legal Profession Uniform Law Application Act 2014 (Vic)
- Civil Procedure Act 2010 (Vic)
- Victorian Legal Services Board and Commissioner — No win, no fee cost agreements
- Personal Injuries Proceedings Act 2002 (Qld)
- Supreme Court of Victoria — Practice Note SC CL 3 Personal Injuries Litigation
- Supreme Court of Victoria — Prothonotary's Office fees
- County Court of Victoria — Fees and costs, civil proceedings
- Health Complaints Commissioner Victoria — Determining fees under the Health Records Act
- Limitation of Actions Act 1958 (Vic)