I am grateful to barrister Paul Hughes for sending me a copy of the decision of HHJ Graham Wood QC in Beardmore -v- Lancashire County Council.  The case considers the paying, and cost, of medical agency fees. A copy of that decision is available here. Beardmore v Lancashire CC (1st Feb 2019, HHJ Wood QC)


The claimant was injured in a tripping accident on a public footpath.  The defendant admitted liability and paid damges. In Part 8 costs proceedings the District Judge disallowed the costs of the claimant’s solicitor paying an agency to obtain the medical records.  The claimant appealed.


The claimant was successful on appeal.


34. Although there is a corpus of case law which deals with the recoverability of agency costs when the work would normally be regarded as work for which the solicitor had a responsibility in the discharge of his duty to his client, and the extent to which those costs could be included as profit costs as opposed to disbursements, and further support can be derived for the actual recoverability of medical agency fees which are incurred in obtaining both medical records and medical reports, there is no specific authority which addresses the applicability or interpretation of the complex raft of rules under Part III which were intended to provide a predictable regime for the payment of fixed costs and disbursements, and in particular the interplay between 45.29 I (2)(a) and (2A). Accordingly this case is venturing into virgin territory.
35. There is no doubt (and neither counsel dispute) that the relevant rule does allow for the recovery of the medical agency fee as a disbursement (and over and above fixed costs) in the sum of £30 as a maximum plus direct costs in relation to whiplash claims arising from RTAs [see (2A)(c)]. The question which lies at the heart of this appeal is whether the specific reference to the medical agency recovery disbursement in this context is intended to restrict the entitlement to RTAs only, as the Defendant contends, or whether it is merely a provision when read in conjunction with the balance of the rule which sets a maximum where the claim has been started under the RTA protocol, and that EL/PL claims also allow for recovery, as the Claimant contends.
36. In the circumstances, it seems to me that I should decide as a matter of principle whether the judge was wrong in law to regard herself as restricted by the wording of CPR 45.29I subparagraphs (2) (a) and (2A) to disallow an element in the disbursements for the agency costs. If I do come to that conclusion, clearly she has unlawfully fettered her discretion in making the assessment as to the reasonable and proportionate amount which should be allowed, and I can substitute my own decision on an appropriate assessment.



The judge went on to exercise his discretion in favour of claimant.

53. I do not believe that this court should be drawn into direct or indirect criticism of the use of medical agencies even those which are closely connected with bulk claims solicitors such as the Claimant’s solicitors in the present case. It is the nature of modern litigation where there are increasing pressures on profit margins and limits of cost recovery for solicitors to be ever more creative in maximising the return from these claims. I can understand why paying parties should be cynical where such a connection exists, and it appears as though it is merely an additional payment to the receiving party solicitors which would not otherwise be recoverable, and the restrictions are being circumvented.
54. However, if as a matter of policy the rule makers believe that it is appropriate to make the fixed costs regime more restrictive and to exclude agency fee recovery then a simple rule change can be introduced. Such matters are outside the remit of myself as a simple County Court circuit judge dealing with the discrete issue of interpretation of the rules as they currently stand.
55. My conclusion, in the circumstances, is that CPR 45.29I (2) allows for the recovery of a medical agency fee in this public liability case as a disbursement, and it is not excluded by the specific reference to the maximum recovery for the medical agency fee in RTA claims. In a public liability case, in my judgment, the appropriate measure for the disbursement recovery is the reasonable and proportionate cost of obtaining the medical records. In this respect, the learned district judge misdirected herself and should have carried out this exercise by reference to the fee claimed. What would be a reasonable and proportionate disbursement?
56. It is a valid observation contained within the Respondent’s notice, and pursued by Mr Latham, that there is a paucity of evidence which would have enabled the appropriate assessment to be carried out, because it is not clear in relation to the £96 claimed for both sets of records, how such sum has been broken down in terms of the work involved. Nevertheless, I do not believe that that is a sufficient reason for excluding recovery which in my judgment is allowable under the rules.
57. It is plain that if one set of records cost £10 by way of direct cost, an additional £70 could not be justified on a proportionate basis, however much work was involved. Mr Latham has suggested (in his ultimate fall-back position) that a suitable measure would be by reference to the grade D guideline hourly rates allowing two letters per record set. In my judgment, in a relatively straightforward case such as this, that may suggest unnecessary precision, and it is more appropriate to adopt the sum which is considered as the maximum allowable in an RTA claim, namely £30 per set. There is no significant difference between Mr Latham’s figure and Mr Hughes’ figure in this regard.
58. Accordingly, I allow the respective sums of £80 and £40 which incorporate the direct costs for the medical agency fees involved in obtaining the identified records. The appropriate VAT can be added to the sums.