MEDICAL AGENCY COSTS NOT RECOVERABLE IN FIXED COSTS REGIME: REPORT OF A DECISION

I am grateful to Simon Fisher of DWF for sending me a copy of the decision of Deputy District Judge Akers in Powles -v- Hemmings, a decision on the 23rd April 2021, a copy of which is available here Powles v Hemmings – St Helens CC – Judgment – 20210423 V Final_ The case relates to the issue of what part of the costs of a medical report are recoverable, the judge holding that the costs incurred by the medical agency were already covered in the fixed costs element of the claim and therefore not recoverable from the defendant.

THE CASE

The defendant settled a personal injury action brought by the claimant. The hearing was in relation to one issue in relation to the costs of a medical report.

THE MEDICAL AGENCY FEES

The report cost £900 inclusive of VAT.  The defendant requested a breakdown of the costs of the report:

• £350 represented the fee for consultation, examination and production of the report.
• “The remaining £400 goes to items such as issuing a consent form; chasing and retrieving the completed form; issuing an instruction
  letter and supporting details to the expert; quality checking the medical report before sending to claimant representatives; collection and query resolution with a costs draftsman and third parties; considering claimant’s expert’s dates of availability and preparing correspondence to a solicitor, and so on – these are all items which the defendant says are agency fees, that they are not recoverable and that they are already dealt with within the fixed costs regime. “

The defendant admitted liability to pay the £350 but not to the £400.

THE JUDGE UPHELD THE DEFENDANT’S ARGUMENT

The judge accepted the defendant’s argument and ordered that the defendant pay the report element of the costs, at £350 plus VAT.

7. It seems to me, though, that the issues are entirely applicable to the facts of the instant matter, because we are looking at items of work which are deemed, or could be deemed to be within the fixed recoverable costs, which is effectively the administration of the claim; the
dealing with correspondence, the to-ing and fro-ing between the parties, the obtaining of further documentation. These are all subsumed within the fixed costs which are awarded to a party within table 6B, they are not separate items of disbursement.

8. The defendant argues that, effectively, the claiming of these additional items of expense from the breakdown provided really a double accounting; effectively, it is seeking to claim profit costs twice, or items of work which should be claimed within profit costs twice.

9. Miss Halliwell takes me to paragraph 50 of Aldred v Chan which does, I agree, quite clearly say that disbursements are one-off items which are for specific items of work, not easily addressed by reference to the same general considerations that we have discussed. I agree with her, to the extent that, yes, a disbursement is a specific item of work which is not easily addressed by reference to these considerations, but the disbursement in question in this report amounts to £350 plus VAT because that is what the claimant’s own breakdown tells me it is. The claimant’s own breakdown goes on to tell me that the remainder of the charge, the remaining £400, relates to various items of agency work, which from the submissions that I have heard and the authorities that I have been referred to, for the reasons that I have set out, I find are not recoverable in this case. They are items which, in my judgment, fall fairly and squarely within the analysis of their Lordships in Aldred v Chan as being items which are part and parcel of the fixed recoverable costs within table 6B of CPR 45.29C, so as a consequence, the psychological report in this case will be limited to the figure set out in the claimant’s own breakdown which is £350 plus VAT