Good news for practitioners – medical agency costs are recoverable in the fixed costs regime.
If you are a Claimant practitioner specialising in Personal Injury and Clinical Negligence litigation and interested in maximising your costs recovery you must read: Ms Clair Wilkinson-Mulvaney -v- UK Insurance Ltd (19th January 2023) – a County Court decision (not available on the Bailii website however, it was reported by Civil Litigation Brief).
District Judge Phillips sitting in Cardiff County Court had to decide the appropriate fees to allow for 3 medical reports, and to rule on Court fees paid by the Claimant and their costs of the application.
Background to the case
The Claimant pursued a claim for damages for personal injury sustained in a road traffic accident that occurred on 3 July 2015, which was submitted by the RTA portal and settled in December 2021, when the Claimant accepted the Defendants offer of £16,468.99. The Defendant also agreed to pay costs.
All costs and disbursements were agreed save for 3 medical reports and 2 Court fees.
The Defendant objected to the agency fees and requested a ruling upon the reasonableness.
The issue
Those practitioners dealing with fixed costs will readily accept the uncertainty and difficulties as to the recoverability of the agency fee element since all too often, the paying party, following the decision in Powles v Hemmings, St Helens County Court 23 April 2021, have requested a breakdown of the fee charged by both the agency and the fees charged by the relevant experts. Unfortunately, many medical agencies refused to provide such a breakdown.
Decision
The Judge, DJ Phillips, having considered the rules and case law, noted that there was no binding authority on the issue, made the comment that the Final Report of Jackson LJ published in 2010 specifically stated that there were no recommendations to reverse the decision in Woolard v Fowler (2005), which allowed medical agency fees. Indeed, he went on to state at paragraph 56 of the judgment “had the drafters of the Rule and the Rule Committee wanted to limit the fees recoverable to those only paid to the doctor, they could have quite easily made this clear in the Rule. They chose not do so.’’.
In summary, whilst this is positive decision for Claimant practitioners, there are a number of important aspects that require further mention:
- the paying party will no doubt continue to challenge these fees – so be prepared;
- obviously, a breakdown from the medical agency would be beneficial, but if not available, then produce evidence of fees from similar experts and attempt to show the agency element is not excessive nor disproportionate; and
- where an amount for a report is fixed under a rule, then it will remain so.
PIC View
This case provides a welcome and positive boost to the challenges raised by the paying party despite being a non-binding decision. Partners in Costs attend and advise on a number of Costs Hearings each and every month. Please get in touch if you need any assistance.
Steve Jepson, Senior Costs Lawyer and Chartered Legal Executive
27.04.2023