Uncertainty reigns over medical reporting agency fees

An appeal against a ruling that fees need to be broken down has been abandoned, reports Professor Dominic Regan

Is a paying party entitled to see a breakdown of a bill rendered by a medical reporting agency? An appeal destined for the Court of Appeal later this year has been abruptly abandoned.

In the personal injury arena, it is the norm for claimant firms to outsource to an agency the exercise of obtaining medical evidence. It is regularly asserted that the agency can undertake the task at less cost than if done by a legal practice. Defendant solicitors and the insurers who instruct them have regularly paid up over the years since agencies arrived on the scene. I have vivid memories of one outfit, Mobile Doctors, pitching up at legal events perhaps 30 years ago preaching the benefits that they offered to the injury fraternity.

Last year, the sometimes iconoclastic Acumension lobbed a spanner in the works. In Northampton General Hospital Trust v Hoskin (22 May 2023), His Honour Judge Bird heard an appeal in Manchester from the decision of a deputy district judge sitting as a regional costs judge. Nigel Bird is a member of the Civil Procedure Rule Committee and a driving force on the Civil Justice Council.

The dispute concerned two items invoiced by a well-known medical reporting agency, Premex Services Ltd. It had billed the claimant’s solicitor for two medical reports and in turn those solicitors were seeking to recoup the cost from the defendant. One invoice was for £5,400 and the other was £8,775 (both plus VAT).

A request for a simple breakdown of how each fee was to be apportioned between expert and agency was met by a refusal. The claimant asserted that each fee was reasonable and proportionate, and so the request was otiose. At first instance, the application for an order to provide the information was dismissed. On appeal, Roger Mallalieu KC appeared for the paying defendant, whilst Ben Williams KC led John Meehan for the claimant.

Poignantly, the primary authority cited at the appeal was Stringer v Copley, a decision of the late His Honour Judge Michael Cook back in 2002. Incidentally, there is a thorough analysis of the law in the 2024 edition of Cook On Costs, commencing at page 824. Two segments of that judgment were quoted in Hoskin. HHJ Cook was happy to allow the recovery of an agency fee provided it was no more than would have been reasonably and proportionately charged by solicitors had they undertaken the task.

In Stringer, the learned judge did go on to say that invoices should” distinguish between the medical fee and their own charges”. That does not appear to have been widely acted upon, with most invoices being global.

In Hoskin, the judge drew upon CPR 47, where at paragraph 5.2 there is an explicit obligation to serve copies of any expert bill in respect of fees claimed. He consequently allowed the appeal and ended his judgment with a remarkably stiff unless order. If copies of the expert fee notes were not disclosed within 14 days, the two items claimed were be assessed at zero!

Permission to go to the Court of Appeal was secured. It emerged in January that the appeal was, for whatever reason, not being pursued. There have been random occasions in the past where appeals have been abandoned for fear that an unsatisfactory decision might be upheld, just compounding the problem.

Sir Rupert Jackson in his July 2017 Supplemental Report, which paved the way for the fixed recoverable costs measures at last implemented last October, said at page 109: “I recommend that once the new fixed costs regime is in place, work should commence on developing fixed costs for experts.”

Whilst that was in the context of cases worth up to £100,000, it would represent the final piece of an exercise to bring certainty to the liability of a paying party.

My readers will be in a much better position than me to gauge whether anything has changed. Will things continue as they have throughout this century?

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13 Mar 2024

Professor Dominic Regan

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