Page 6 - PIC Magazine Issue 24 - Spring-Summer (Digital)

PLUS ÇA
CHANGE
Dominic Woodhouse is the National Training Manager – Advocate at PIC.
There were some decisions relating to whether agency charges incorporated within a fee for a medical report could be recovered in the context of fixed costs cases, but that was substantially the status quo for two decades. Then came Hoskin. The paying party’s approach was different here; a request for breakdown was made and refused,
but rather than wait for assessment, the Defendant issued an application to compel production of the breakdown. In reaching his decision that the receiving party should be ordered to provide a breakdown, HHJ Bird found that para. 5.3 of PD 47 requires the fee note of the expert to be provided with the bill of costs, and where the fees of an agency are also claimed, for details of their work to be set out. He therefore allowed the appeal against refusal of the application and ordered that a breakdown be provided within 14 days distinguishing the fees of the expert and the agency, together with a copy of the expert’s fee note, failing which the fees would be disallowed entirely.
Cases on the point have accumulated since. In CXR v Dome Holdings [2023] SCCO, (then) Senior Costs Judge Gordon Saker decided that
it was impossible to make
a Stringer analysis in the absence of a breakdown, and so ordered (on the first day of
a detailed assessment, though noting that an application could have been made in advance of the hearing) provision of a breakdown.
Commercial sensitivity
held little truck with HHJ Saggerson in Ena Aminu-Edu v Esure Insurance Company Limited [2024] (County Court at Central London), and did not override the transparency which the Court and
paying party were entitled
to, suggesting that Part 18 requests and applications for unless orders could be made in advance of any assessment. Acknowledging that the report in consideration ‘must have cost something’, the fee of £2,916 would be reduced to £750 in the absence of provision of a breakdown.
A number of first instance decisions have followed, for instance in Parsons v Stevens [2024] (a fixed recoverable costs case, where £5,880 plus VAT was claimed for a report, with responses to a Part 18 request ordered failing which it would be assessed
at £1,500 plus VAT), and Chaudhry v AXA [2024] (with MRO-mediated fees totalling £8,011.92, a Part 18 response was ordered, in the absence of which the Claimant would only be entitled to recover a maximum of 25% of the fees claimed). Yes the Courts will have refused such requests as well (for instance in Craven v Henley [2024] in the case of
Partners In Costs
6
year ago, we cast our eyes back over 2023 to see what 2024 might have in store for us, and as predicted, the decision in Northampton General Hospital
NHS Trust v Hoskin [2023] 5 WLUK 390 as to the recovery of medical agency fees has continued to resonate.
There is nothing new in the use of agencies
by solicitors to assist in obtaining reports in
all sorts of expert disciplines; it was said in Claims Direct Test Cases Tranche 2 Issues [2003] EWHC 9005 (Costs) that the decision in Stringer v Copley (unreported, 2002, Kingston on Thames County Court) that agency fees
are recoverable in principle ‘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’,
was ‘trite costs law’. However, the comments
of HHJ Cook in Stringer as to the importance of the invoices of agencies distinguishing between the fees of the expert and the agency itself (with the latter sufficiently particularised to enable the cost officer to be satisfied they do not exceed the reasonable and proportionate cost of the solicitors doing the work) has largely gone unheeded by the majority of medical reporting organisations (MROs).
The issue was routinely raised in costs proceedings over the years; Points of Dispute would make a request for a breakdown,
most claims settle, but if a matter went all
the way to detailed assessment by the Court, the request for a breakdown would almost invariably have been refused by the agency, and the Court would do its best on assessment, either assessing the reasonableness of the overall fee with some notional element for what reasonable cost might have been incurred by the agency, or saying that the fee had to be assessed solely by reference to the report obtained.
INDUSTRY EXPERTS