Page 7 - PIC Magazine Issue 24 - Spring-Summer (Digital)

Trite costs law – 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’.
rather low fees in a MOJ Portal case, where £750 plus VAT for a psychological expert’s report was within a reasonable range and further enquiry was not proportionate),
but the issue shows no signs of going away.
So it is that we come to JXX v Archibald [2025] EWHC 69 (SCCO). The first point
to note here are the increased stakes;
not content with seeking disallowance
of the relevant fees, the paying party had made an application (heard on the first
day of assessment) that the assessment proceedings be stayed until the receiving party provided breakdowns and copies of the experts’ direct fee notes, in default of which the entire bill be struck out. First they come for the agency, then they come for you, as it were.
Of significance were the amount of relevant fees (£120,946 relating to medical agency- mediated fees, out of a total of £253,859.96 for expert fees in their entirety), and that in another case earlier in the year, the same solicitors using the same medical agency had provided the experts’ direct fee notes, from which the agency mark-up could be surmised (though not determined) to be between 30% and 70%.
Acting Senior Costs Judge (ASCJ) Rowley indicated that he would ordinarily be minded to simply get on with the assessment, and in the absence of a breakdown just assess the medical report fees as if no agency had been involved. However, in view of the amount at stake, the claimant would be put to election, where in effect, if the claimant provided
the requested breakdown, the fees would
be assessed on the basis of the reports and the work done by the agency, but if no breakdown was provided, they would be assessed purely on the basis of the report
or work product as though no agency had been involved.
The judgment has been hailed as something of a success for the claimant/medical agency contingent, after all, no unless Order was made, and we are back in a very similar situation to that which has hitherto prevailed since 2002. There is also a suggestion by ASCJ Rowley that a defendant’s insurer is likely to be able to adduce evidence of the charges of a great number of experts if it so wished, that the onus is on the paying party to challenge fees, and that what is sauce for the goose is equally so for the gander. It may be argued then that in the absence of provision of such comparative evidence, objections should be given short shrift. This however would appear to read rather too much into the judgment, with ASCJ Rowley specifically disavowing any suggestion of compulsory provision of such evidence, and by extension the necessity of it as a gateway to objection. It also ignores the general observation that if the MRO failed to provide information to justify the charge, it would be likely that the composite fee would be reduced on assessment.
That more principled reduction by reference to the report alone would most probably be more palatable (i.e. less) than has been indicated in previous more punitive judgments is good news for agencies and the practitioners using them, but is nonetheless a serious concern. As ASCJ Rowley observed, who stands the shortfall in that context, be it the litigant or the agency, was not an issue before the Court, but it will be of keen interest to those engaged with this work. Terms agreed with agencies will ordinarily provide that their full fee is payable irrespective of recovery from the opponent. The solicitor will want to pass on any shortfall in recovery to their client (depending on the terms of the retainer; some will
not permit it in any event), though as Costs Judge Brown observed in BCX – v – DTA [2021] EWHC B27 (Costs), items of costs that
have been disallowed or reduced against the paying party may well equally be disallowed as against one’s own client in the absence of specific advice before such costs are incurred. The reality is that in a large number of matters, the fees will be reduced and the solicitor would be left ‘holding the can’.
Time then to look at those MRO terms again, and see how PIC can assist in providing preemptive advice to strengthen recoveries both inter partes and against your own client, with its leading Total Timeline + service.
www.pic.legal Spring & Summer 2025
PARTNERS IN COSTS 7