The Long and Winding Road…………… Medical Agencies and Expert Fees

A look at whether fees are proportionate in the round or should they be broken down.  A read for all legal professionals dealing with personal injury of all genres, Medical Agencies and Litigation Service Providers.

Earlier this year His Honour Justice Bird in Northampton General Hospital NHS Trust v Hoskin (County Court at Manchester, 22nd May 2023) put an agency to election that bills for expert reports should be broken down to allow a paying party to be able to identify the amount being charged by the expert and in a draconian style penalty stated that in default of compliance the expert’s fees were to be assessed at nil.

This is not a new argument and is one which has been on a long and winding road for over 20 years.  In this instance the Judge held that;

“I am satisfied that it is clear that PD 47 imposes a duty on the receiving party to provide the fee note of any expert instructed and, where such costs are claimed details of the costs of any MRO. Premex is not an expert. Its invoice cannot be described in any sensible way as a fee note and is in any event not the fee note of the expert.”

In this case it was all over save for the fees of two expert reports in a clinical negligence matter secured through a medical reporting agency (‘MRO’) in the sums of £5,400 plus vat and £8,755 plus vat.   The Defendants Solicitor sought from Premex a breakdown of the fees between services provided and the amount which related to the report. Premex declined on the basis that the invoice was both reasonable and proportionate and as such no breakdown was necessary.

The Defendants Solicitor maintained their position and made an application for a breakdown which was refused by the Judge at first instance.  This was appealed to HHJ Bird who reviewed PD 47 paragraph 5.2

On commencing detailed assessment proceedings, the receiving party  must serve on the paying party and all the other relevant persons the following documents —
(c) copies of the fee notes of counsel and of any expert in respect of fees claimed in the bill;

The Judge intimated the language of PD 47 was clear and the receiving party was required to provide a copy of the expert’s fee note.  The Judge referenced the earlier case Stringer v Copley (2002) and the points made by His Honour Judge Cook indicating they applied with equal force today and that whilst HHJ Cook being

“satisfied that there is no principle which precludes the fees of a medical agency being recoverable between the parties, provided 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.”

This decision was diametrically opposed to the decision earlier in the year of District Judge Jenkinson in Sephton v Anchor Hanover Group (County Court at Liverpool, 20th April 2023). On this occasion the Judge refused to order the agency to give non-party disclosure to the Defendant paying party.  The basis was that on assessment the issue before the Court would be to determine whether the fee was reasonable and proportionate and the breakdown of that fee was not relevant to this issue.

“The claimant is only entitled to recover the reasonable costs. How that is apportioned between the provider and the agency is of limited, if any, relevance…”

Sephton, whilst a fixed costs case agreed in principle, as have earlier cases that agency fees are recoverable if they are reasonable and proportionate, but without detail how can those factors be determined?

If Hoskin was found to be good law then for receiving parties to comply with PD 47 they would need to provide those factors of an MRO’s service charges and the actual fee charged by the expert when the Bill of Costs is served on the paying party.

There are wider factors to this breakdown surely as often an MRO’s take on the burden of delayed payment amongst other factors dependent on their agreements and business models. As an obligatory exercise this would lead to commercial discussions between Solicitors and MRO’s and where any shortfall is encountered uncomfortable discussions between parties and indeed clients regarding who should pick up the same or whether an agency is used at all.

Whilst HHJ Bird was clear in his findings, this remains only a county court judgment and whilst persuasive is not binding.  Whilst agencies may elude to providing this information, as paying parties continue to exhort for it,  it is entirely feasible that this point is at some juncture likely to find itself being heard in the higher courts even if in as a whole a fee ‘appears’ reasonable and proportionate.

It is only once this point becomes a binding judgement that we will see an end to this long and winding road maybe in the next 20 years perhaps…………….

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Lissa Delf, Costs Consultant