If breakdown is not provided, bill will be assessed as if all attributable to the expert
A costs judge has given a personal injury claimant the choice of breaking down how much of a medical reporting organisation’s (MRO) bill was for its work and how much for the expert, or having the whole bill assessed as if it was just the expert’s fee.
Costs Judge Rowley said he would give permission to appeal if either side wanted it given that higher court guidance on the issue of medical agency fee breakdowns was “desirable”. There have been a raft of lower court rulings on the issue that have gone both ways.
In JXX v Archibald [2025] EWHC 69 (SCCO), the claimant suffered severe injuries in a road traffic accident. The claim settled in 2023 and detailed assessment proceedings commenced seeking £901,027. The fees under scrutiny at the hearing were £120,946 including VAT for expert evidence sourced via an MRO, Medical and Professional Services Ltd (MAPS).
In seeking a breakdown on the fees, the defendant compared the two report fees of another expert, the first of which was through direct instruction by the claimant’s solicitors, Thompsons, and the latter via MAPS. The defendant said there was a “stark and shocking” disparity between the two.
It was clear from the claimant’s replies that he expected MAPS to produce a breakdown but it has decided not to. This “has left the claimant, it seems to me, in something of a bind”, said Judge Rowley.
He described it as “a volte face” compared with the case of a Mr Poulter, which came briefly before him earlier in the year before being settled, a compromise that was “very largely facilitated by the claimant withdrawing approximately £60,000 of experts’ fees (excluding VAT) which had been procured using MAPS by Thompsons”. As part of the compromise, Mr Poulter agreed to the information that had been provided being available for use in other cases
Judge Rowley said this suggested that “the MAPS’ own element of the composite invoice (i.e. the overall invoice provided by MAPS to Thompsons) is a potentially significant element of the whole”.
In the absence of evidence as to the MRO input, he went on, the invoices would need to be judged simply on whether they were reasonable for the work done by the expert, without any additional “quasi-legal work” having been carried out by MAPS. This would involve a comparison with expert evidence procured directly by Thompsons.
“The onus would then be on the defendant, as I think it should be, to challenge any fees he considered to be too high when assessed on this basis.”
While the court could require more information to be provided if it felt it necessary, he said the burden on a standard basis assessment would be on the receiving party to evidence its claims. If the terms of an invoice raised doubts about the reasonableness of a bald figure on a fee note, it would be the receiving party who would suffer.
“I have to say that it would not be my immediate response to provide the receiving party with a chance to get its house in order simply to facilitate the assessment of a fee which had been claimed from the paying party for a number of months before the assessment. The broad approximations required of costs judges often involve assessments based on limited evidence before the court.
“Nevertheless, the sums in issue here are significant and the issue is one which potentially affects many cases. As such, I am not convinced that my immediate reaction is correct here. In my judgment, the better course is essentially to put the claimant’s side to an election.”
It could either have the fee assessed with the expert and MRO’s fees separated, or “on the hypothetical basis that there had been no MAPS’ involvement and the fees claimed are solely for the expert’s evidence”.
Once the claimant has decided, “the defendant will be entitled to produce any comparative evidence he wishes to rely on, whichever option has been followed”.
Benjamin Williams KC (instructed by Thompsons) for the claimant. Roger Mallalieu KC (instructed by Horwich Farrelly) for the defendant.