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A short time later, the (then) Senior Costs
Judge agreed2, adding:
There is no doubt that MDL carries out a
certain amount of correspondence, which, had
they not been involved, the solicitor would
have had to do. To the extent that this work is
carried out at the same or a lower cost than
if the solicitor had done it, it is recoverable.
The judgment of His Honour Judge Cook in
Stringer v Copley is trite costs law. I agree with
Judge Cook 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. There
may however be, within MDL’s fixed charge,
an element in the nature of an administration
fee which is not recoverable.
…The principle is clear, namely that the
administration element of any fee charged by
MDL is not recoverable. It will therefore be
necessary for the receiving party to obtain from
MDL in every case a properly broken down fee
note showing the actual fee paid to the expert,
the amount charged for correspondence
and telephone calls and the administration
element. In deciding what proportion of that
fee is recoverable the court will have to take
into account the solicitor’s correspondence
with MDL which would not have occurred
had they not chosen to instruct MDL.
What has fuelled the war following this
seemingly straight forward annunciation of
the law is the illusive and opaque nature of
any breakdown between the medical fee and
the agency charges. This has led to a raft of
decisions about who is in possession of said
information and what the consequences
are for failing to produce the requested
‘breakdown’.
In Bennie3, the court dismissed as premature
an application to compel Part 18 Responses
pre commencement of detailed assessment
proceedings. In Chaudhry4, the court found
a breakdown must be provided because
of CPR 47 PD5.2 or the agency’s invoice
would be reduced by 75%. In Charman5
,
the court found only £50 plus vat to be a
reasonable agency charge in the absence of
a breakdown. A breakdown wasn’t necessary
said the court in Craven6 as the sum
claimed of £750 plus vat was reasonable &
proportionate in any event. A breakdown was
required said the (then) Senior Costs Judge in
www.pic.legal Spring & Summer 2026
CXR7 for the court to apply the necessary principle, albeit no sanction
was stated for failure to do so. You must provide the breakdown or
the invoice will be limited to £750 plus vat said the Circuit Judge in
Aminu-Edu8. Because of the wording of PD5.2(c), you must provide
a breakdown of the agency fee & the expert invoice or ‘zero’ will be
recoverable said the Circuit Judge on appeal in Hoskin9. In default of
a breakdown, the court will assess the fees as though no agency was
involved said the (current) Senior Costs Judge in JXX10. The receiving
party must respond to the Part 18 Request said the court in Parsons11
or the invoice will be restricted to £1500 plus vat. In dismissing the
application for non-party disclosure against the medical agency in
Sephton12, the court concluded a breakdown was not necessary to
fairly dispose of the claim and would be an inappropriate exercise of
discretion. The list goes on and on…
The most recent case of note arises from a first appeal in Dempsey
v Milton Keynes University NHS Trust (CC Liverpool) 30/09/2025
(HHJ Wood KC). What sets this case apart from others is the
information volunteered by the medical agency that their invoice
included: (i) expert’s fee, (ii) fixed operational fee, (iii) referrer
commission, (iv) finance fee, (v) contribution to waiver fund.
Adopting a less literal interpretation than the court in Hoskins,
the Circuit Judge sitting with the benefit of the Regional Costs
Judge as Assessor found that the receiving party had complied with
PD5.2(c) by serving what was in their possession, namely the medical
agency invoice. Whilst declining to interfere with the costs judge’s
assessment of the medical expert’s fee, the appellate court was
compelled to take a different approach for agency charges. It was
held the lack of a breakdown precluded any assessment of what
was reasonable & proportionate, particularly in circumstances where
3 out of the 5 separately identified items (above) were irrecoverable
as costs inter partes. Consequently, the agency fee was assessed at
“nil” in the absence of any basis upon which an assessment could
properly be made.
The time and cost associated with resolving disputes involving
medical agency charges has significantly increased over recent
years. As noted by the Senior Costs Judge in JXX, there is a lack of
binding authority at appellate level surrounding the form, content
and timing of information to be given by the receiving party where
agency invoices are concerned. Solicitors and costs professionals
are often caught in the middle of a much wider dispute between
compensators and agencies yet end up bearing the brunt of the
court’s dissatisfaction about such matters. It will be interesting
to see what the next chapter brings now that Dempsey reveals
some irrecoverable costs on an inter partes basis are included in
the charges for that particular medical agency. I just hope the war
doesn’t rumble on for another couple of decades until we receive
something definitive from the powers that be!
1 Stringer v Copley (CC Kingston-Upon-Thames) 17/05/2002 (HHJ Cook)
2 Claims Direct Test Cases (Tranche 2) [2003] EWHC 9005 (Costs)
3 Bennie v University of Bristol (CC Manchester) 18/07/2025 (DJ Peters)
4 Chaudhry v AXA Insurance UK Plc (CC Guildford) 13/11/2024 (DJ Murphy)
5 Charman v John Reilly (Civil Engineering) Ltd (CC Liverpool) 22/05/2013 (DJ Woodburn)
6 Craven v Henley (CC Manchester) 07/06/2024 (DJ Iyer)
7 CXR v Dome Holdings Ltd (SCCO) 14/08/2023 (Senior Costs Judge Gordon-Saker)
8 Aminu-Edu v Esure Insurance Company Ltd (CC Central London) 08/03/2024 (HHJ Saggerson)
9 Northampton General Hospital NHS Trust v Hoskin (CC Manchester) 22/05/2023 (HHJ Bird)
10 JXX v Archibald [2025] EWHC 69 (SCCO) (Senior Costs Judge Rowley)
11 Parsons v Stevens (CC Truro) 14/05/2024 (DDJ Fentem)
12 Sephton v Anchor Hanover Group (CC Liverpool) 20/04/2023 (DJ Jenkinson)
PARTNERS IN COSTS
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