Medical Agency Fees
The vexed issue of medical agency fees refuses to go away, and the decision re JXX (a Protected Party by his Litigation Friend ABB) v Mr Scott Archibald gives a nod toward recognising the continuing unsatisfactory state of affairs –
(3) if either party wishes to seek to take this matter further then I will give them permission to appeal
If we are honest, the point of contention is all smoke and mirrors involving the expense of deferred payment of expensive experts’ fees, which most litigants and a growing number of firms of Solicitors cannot afford to pay up front. Conversely medical experts cannot be expected to wait ages for payment. The sooner that particular Elephant in the room is dealt with the better, but that is unlikely to be any time soon.
The plain fact of the matter is that Claimant “side” does not have the same financial muscularity as the Defendant’s insurers hence the space for medical agencies, amongst other reasons –
(7) “In routine personal injury cases, where a medical report is required, it has become a common practice to instruct a medical agency to arrange a medical examination of the Claimant, to undertake the collation and obtaining of relevant medical reports, to arrange the appointment with the medical expert and the Claimant, deal with any cancellations or rearrangements, and to deliver the resultant medical report to the solicitors. Because of the specialisation, experience and expertise of the medical agency they are able to do this administrative work, at least as efficiently, expeditiously and economically as most firms of solicitors using their own fee earners.” (HHJ Cook in Stringer v Copley (unreported)).
(12) In Stringer, Judge Cook said:
“I am satisfied that there is no principle which precludes the fees of a medical agency being recoverable between the parties, provided that it is demonstrated that their charges do not exceed the reasonable and proportionate costs of the work if it had been done by the solicitors.”
On the arguments between the parties in JXX, the Judgment of Costs Judge Rowley is entirely understandable –
(36) The fees in the composite invoices will either be assessed:
- a) on the basis of the expert’s evidence and the MRO work in obtaining that evidence if the information sought in paragraphs 2 and 3 of the defendant’s draft order is provided; or
- b) on the hypothetical basis that there had been no MAPS’ involvement and the fees claimed are solely for the expert’s evidence, if no such information is provided.
(38) It is for the claimant’s side to decide on which of the two approaches these fees will be assessed and it will need to be given a period of time in which to decide which course to take. At the end of that period, the defendant will be entitled to produce any comparative evidence he wishes to rely on, whichever option has been followed.
We are unaware of the terms of the Defendant’s draft order, but I take from the above that significant medical agency fees remain vulnerable unless cogently substantiated, which short of a sensible breakdown will likely result in reduction of fees.
Therefore, if tension is created by significant medical agency fees it is imperative, when seeking to recover costs as a whole that risk is properly taken into account when looking to negotiate an overall compromise.
Mark Balme, Senior Costs Consultant
20.01.2025