Judge decides it is a “reasonably necessary and proportionate” request
A deputy district judge in Truro has become the latest to order a claimant to provide a breakdown of a medical report agency’s fee.
DDJ Ross Fentem said that it was a “reasonably necessary and proportionate” request from the defendant in a fast-track road traffic case and that, if the information was not provided, the amount claim would be reduced by nearly three-quarters.
In Parsons v Stevens, where a pain management expert’s fee of £5,880 plus VAT was under scrutiny, the part 18 application for further information was made before an application for determination of fixed costs and disbursements.
DDJ Fentem said the other county court decisions on the issue he had been shown indicated that there was as yet “no settled practice” among his colleagues.
“To address a submission tentatively made by [the defence], I am unable to discern any particular ‘trend’ in these cases, and even if I had been able to do so, I would not have been bound to follow it if I concluded that the ‘trend’ was wrong. I must decide this application on the basis of the evidence and of principle.”
He accepted that costs judges, himself included, have previously made decisions about disbursements in fixed costs cases without a breakdown.
“This proves no more than that a breakdown has not historically been treated as absolutely indispensable to an assessment or determination. That is not the test I have to apply, which instead is one of reasonable necessity.
“Moreover, it is obvious from the county court cases to which the parties have taken me that determinations are sometimes [made] with great reluctance.”
The application here sought the breakdown of the fee charged by Premex, which, as in other cases, said the information sought was “commercially sensitive”, although the judge noted that it gave “no further explanation to support this conclusion”.
Premex argued too that to respond to the request would place a disproportionate burden on it. “It does not explain what work would need to be done in order to respond,” the judge observed.
He said the amount claimed raised “immediate concerns about its proportionality”, meaning a breakdown of its constituent parts “may assist a costs judge in her proportionality assessment”.
Further, the defendant needed this to make an “informed decision” about whether to accept the fee or make a counter-offer, with a view to avoiding the costs of a determination, in line with the overriding objective.
Similarly, it would not be disproportionate to require a response. In the “absence of an evidenced explanation”, it was “difficult to imagine” how it would be especially time-consuming or expensive to detail the doctor’s fee.
A direction under rule 18.2 – meaning the information could not be used in other proceedings – would allay Premex’s concerns about commercial sensitivity.
The defendant invited the judge to disallow the fee entirely as a sanction for non-compliance. But while a failure to comply must carry some consequence, DDJ Fentem said the proposed sanction was “too draconian”.
“It is more satisfactory to identify a specified sum that the claimant will recover unless a reply is given. In calculating that sum I must endeavour to calculate a minimum reasonable and proportionate sum, erring squarely in the defendant’s favour out of an abundance of caution.”
He ordered that, in the absence of the breakdown, the fee would be assessed at £1,500 plus VAT, of which £1,250 was the medic’s fee and £250 Premex’s costs.
“This is not intended in any way to fetter the discretion of a costs judge on determination,” he added.
Dominic Finn (instructed by Slater & Gordon) for the claimant. James Miller (instructed by Kennedys Law) for the defendant.