AGENCY FEES ALLOWED ON APPEAL: FULL COPY OF JUDGMENT AVAILABLE
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 EXERCISE OF DISCRETION
The judge went on to exercise his discretion in favour of claimant.