I am grateful to Ryan O’Mara of Scott Rees & Co for sending me a copy of the judgment of District Judge Jenkinson in Sephton -v- Anchor Hanover Group (County Court at Liverpool, 20th April 2023 – a copy of which is available here. Sephton v Anchor Hanover Group_Approved Judgment_20.04.23). It is another round in the long-running battle as to whether a paying party is entitled to a breakdown of the fee paid to the doctor and retained by the agency. The judge refused to order the agency to give non-party disclosure to the defendant paying party. The issue the court, on assessment, would have to determine was whether the fee that was being sought was reasonable. The breakdown of that fee was not relevant to this issue.
“The claimant is only entitled to recover the reasonable costs. How that is apportioned between the provider and the agency is of limited, if any, relevance…”
THE CASE
The claimant’s costs were being assessed in a personal injury action. The claimant was entitled to recover fixed costs and disbursements. There was an issue in relation to the disbursements.
THE ISSUE IN RELATION TO DISBURSEMENTS
The defendant’s case was that the claimant was only entitled to recover the fees paid to the medical practitioners and not any costs paid to the agency involved.
THE APPLICATION FOR NON-PARTY DISCLOSURE AGAINST THE AGENCY
The defendant made an application for non-party disclosure against the agency concerned. Initially the defendant sought disclosure in relation to five invoices. However at the hearing disclosure was sought only in respect of one invoice relating to a MRI scan on the claimant. “Essentially, the defendant wishes to see how much the provider of the MRI actually charged the agency.”
THE JUDGE’S CONSIDERATION OF THE RULES AND DISMISSAL OF THE APPLICATION
The judge considered the rules in detail and dismissed the application.
7. The non-party disclosure provisions are dealt with at CPR 31.17. By reference to CPR 31.17(3) and to paraphrase the position, I may only make an order for disclosure against the agency if I am satisfied that the documents sought are likely to support the defendant’s case or adversely affect the claimant’s case in respect of the underlying cost dispute between the parties, and that disclosure is necessary to fairly dispose of that issue or to save costs. Even if both of those criteria are met, then I have a discretion as to whether or not to make such an order, such an order is an exception to the rule, but is not exceptional.
8. In order to consider whether or not the criteria are met and if so, whether or not it is appropriate for me to exercise my discretion to make a non-party disclosure order, it is necessary for me to consider to a degree the merits of the defendant’s contention in the underlying case with regards to agency fees.
9. I have been referred to various cases and the case that I found most useful in that regard is the decision in this court of His Honour Judge Wood KC of Beardmore v Lancashire County Council [2019]. Whilst I accept that this is a county court authority that is, strictly speaking, not binding on me, it is extremely persuasive as firstly, an authority from the designated civil judge in this court and secondly, an authority that would appear to be on the very issue.
10. His Honour Judge Wood KC considered the rule and the authorities in detail and points out at paragraph 51 of that judgment the difficulty in relying upon previous case law. Considering however the exact rule applicable in the underlying case, he expressed the view at paragraph 55 that CPR 45.29I(2) allows for recover of the medical agency fees in public liability cases as disbursements, with the correct approach being the reasonable and proportionate costs of obtaining, in that case, medical records although it is clear that the same approach would apply in respect of expert medical reports because both are addressed using the same terminology, namely “the cost of obtaining”, at 2A of that rule.
11. Founding myself on the decision of His Honour Judge Wood KC and for the reasons that he explains in Beardmore v Lancashire County Council [2019], I would not have ordered disclosure of the invoices in relation to the medico-legal reports, which I emphasise are no longer sought, on the basis that the breakdown as between agency and practitioner would neither support the defendant’s case or undermine the claimant’s case within the meaning of CPR 31.17(3) because quite simply, that breakdown is irrelevant when the Court is assessing the extent of recoverable disbursements by reference to them being reasonable and proportionate, rather than by consideration of how that charge is apportioned between practitioner and agency.
12. It is therefore necessary for me to consider whether or not there is distinction to be drawn insofar as the cost of obtaining the MRI scan is concerned, because the manner in which the argument was addressed by Mr Lyons this afternoon is slightly different to that which was addressed in the witness statement of Mr Bailey in support of this application. In other words, should I adopt a different approach when dealing with a disbursement of this nature than when dealing with medical records or medical reports in the way considered by Judge Wood in the case of Beardmore v Lancashire County Council [2019]. Essentially, Mr Lyons says that the MRI scan should be considered not under subparagraph (a) but under subparagraph (h) which deals with a disbursement reasonably incurred due to a feature of the dispute. The distinction may be relevant, he says, because subparagraph (h) does not include words such as “the cost of obtaining” which featured in the decision of Judge Wood in his determination in respect of the issue when dealing with medical records. In that regard, at paragraph 13.4 of his report dated 4 December 2020, the orthopaedic surgeon, Mr Siddiqui, specifically recommended that an MRI scan should be obtained. It was obtained, further to that recommendation, entirely for medico-legal purposes, not for any treatment purposes. In other words, it was obtained so that Mr Siddiqui could finalise his medical opinion. It seems to me that if, for example, Mr Siddiqui had the facilities to arrange an MRI scan as part of his medico-legal examination on that day and thereafter finalise his report, it would be difficult to argue that this was not part of the cost of obtaining that expert’s medical report. The crude analogy that I discussed this afternoon was the situation whereby audiometric testing is undertaken on behalf of an ENT surgeon at the time of medico-legal examination, and the costs of such testing included as part of the costs of the expert’s report.
13. In my judgment, the costs of obtaining the MRI scan falls to be considered as part of the cost of obtaining the medical reports from Mr Siddiqui rather than falling distinctly within 2(h) as another disbursement really incurred. As such, applying the reasoning of His Honour Judge Wood KC in Beardmore v Lancashire County Council [2019] and for the same reasons, it is recoverable to the extent that it is reasonable and proportionate, and the Court simply does not need to know any apportionment between the provider and the agency. However, even if I am wrong in that regard and, as submitted by Mr Lyons, the MRI falls to be considered by reference to subparagraph (h), we effectively reach the same point. The defendant does not seek to argue that the costs of the MRI scan is not recoverable.
14. It has to be assessed on a standard basis with the benefit of the doubt being given to the paying party on the basis of what is reasonable and proportionate, effectively the same test the judge would apply in relation to medical records and by implication, medico-legal reports when dealing with subparagraph (a). If the scan had been obtained directly by the claimant’s solicitors without the use of an agency, it is not the case that the defendant would have to pay whatever that scan cost. They only have to pay what is reasonable and proportionate. That is a matter for the assessing judge with the benefit of doubt going to the paying party. The paying party in those circumstances could choose to make representations reliant upon the judge’s general experience on the cost of such scans or, as is often the approach when dealing with less commonly seen disbursements such as this, they could produce evidence as to what the going rate for an MRI scan is in the area, either by reference to direct quotes or as Mr Lyons indicated, perhaps by producing the cost of MRI scans that they have paid for in other cases. That is a commonly seen approach in costs assessments.
15. For that reason, I am not satisfied that the breakdown between the actual scan provider and the medical agency is of any more relevance under subparagraph (h) than it is under subparagraph (a). The claimant is only entitled to recover the reasonable costs. How that is apportioned between the provider and the agency is of limited, if any, relevance and in those circumstances, referring back to the provisions of CPR 31.17, I do not take the view that that this is a document which is likely to support or adversely affect the respective parties’ cases on this particular issue or that disclosure is necessary in order to fairly dispose of the claim.
16. It is not necessary because the defendant has other means, being the above summarised more usual means of challenging this particular disbursement. In any event, I turn to the third limb of the test, which is the exercise of my discretion in relation to an application for non-party disclosure. If I am wrong on the first two limbs, I take the view that I should not exercise this discretion on the basis that it is not appropriate to endorse the approach of non-party disclosure applications being made against medical agencies to achieve the aim of establishing the reasonable and proportionate cost of (here) an MRI scan, which can easily and more proportionately be established by producing quotes, as indeed would have to be the case in a matter that did not involve the scan being obtained via a medical legal agency.
17. For those reason, the defendant’s application for non-party disclosure is dismissed.
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