COST BITES 145: AGENCY SHOULD PROVIDE A BREAKDOWN OF FIGURES FOR COST OF A MEDICAL REPORT: “ANY AJUDICATION ON PROPORTIONALITY, IN ALL ITS COMPONENT PARTS, DEMANDS TRANSPARENCY”

I am grateful to barrister James Miller for sending me a copy of the decision of HHJ Saggerson in  Amini-Edu -v- Esure Insurance Company Ltd (8th March 2024). A copy of the transcript is available here.  ENA AMINU-EDU COSTS JUDGMENT 8 March 2024 Final Handed DownXX  It represents another round in the question of whether a medical report, obtained via an agency, should be subject to a breakdown so that the extent of the agency fee can be assessed. As we shall see HHG Saggerson was firmly in favour of transparency and the need for a full explanation of how the fee is reached.

 

” This little micro-industry of unknown and unknowable commissions or referral or arrangement fees underscores the risk that litigation is pursued in the interests of an economic ecology far removed from the interests of justice or the protagonists. This is not an unknown problem. The racket that is claims for “Hire Charges” illustrates how this sort of remote ecology can get completely out of hand to the benefit of nobody but lawyers and insurance companies.”

THE CASE

A personal injury case had settled for £40,000. Fixed costs applied.   The defendant agreed that fixed costs applied , but not the costs of a medical report at £2,916.00, inclusive of VAT.   Both sides made applications in relation to costs that came before the Court. The defendant sought further information under Part 18, the claimant sought an an application for determination of the fixed costs.

THE JUDGMENT

4. So, two applications are before me.

4.1 The Defendant’s application dated 6 June 2022 for Part 18 Information regarding
the breakdown (disclosure of a medical agency fee element) of the fee for the pain
management medical report.
4.2 The Claimant’s application dated 20 January 2023 for a determination of the
Claimant’s fixed costs and disbursements pursuant to CPR 36.20(11).

Premex – The Medical Referral Agency

5. The agency (“Premex”) by letter dated 23 March 2023 to the Claimant’s solicitors has
decided not to disclose to either the Claimant’s or Defendant’s solicitors what
proportion of the total fee is attributable to the commissioning agency’s charges.
Premex’s decision is based on commercial sensitivity and on the proposition that: “It
is not our practice to provide breakdowns of our fees. There is no obligation, and it is
not necessary, to provide a breakdown in order to assess the reasonableness and
proportionality of the fee claimed”.
6. It is also of note that Premex states: “The [fee] is not calculated on a case-by-case basis
and full consideration of any breakdown provided would require a detailed and
complex analysis of the macro economics of the wider medical reporting market, which
is disproportionate …”. I take this to mean that the process of working out the agency’s
commission or charges would be disproportionate rather than a reference to wider
medical market charges being disproportionate. “Macro-economics” seems a bit
grandiose.
7. It is not entirely clear in comparison to what the process of breakdown is thought to be
disproportionate. Is this intended as a reference to the disproportionate cost incurred or
effort or resources of the agency deployed or all three? Alternatively, if by this Premex
means that the cost, effort and recourses invested in doing something are greater than
doing nothing, one might be constrained to agree. Premex can’t mean this because the
result of any expenditure in litigation would be disproportionate. They must mean that
the investment of time, energy and money in disentangling their agency fee from the
total is disproportionate (out of all reasonable proportion) to the value, importance and
complexity of the action and the other costs of the litigation.
8. If Premex means the latter, it is something of a question-begging proposition. The
submission that the process of disentanglement is disproportionate is based only on the
shaky foundation that it is disproportionate “because we say so”. There is no evidence
other than this assertion. No doubt the production of evidence itself would have been
disproportionate.
9. There are other curiosities. If the agency fee is not calculated on a case-by-case basis
(or by the application of some complex averaged percentage of notional value), but on
some reference to “macro-economic” factors, the spectre is raised that in some cases –
particularly lower value cases – the agency fee (and thus the total disbursement) is
inevitably disproportionate in the alternative sense identified above. This is because the
agency fee must be configured across the agency’s business as a whole. For the
individual case and the individual paying party this seems to be the very antithesis of
proportionality and looks more like taxation. Lower value cases are subsidising higher
value cases.
10. I did not hear any submissions on “commercial sensitivity”. There is nothing in it. The
commissioning party and the paying party, in my judgment, are entitled to know how
much the doctor is charging and how much the agency is charging. If transparency
drives down prices by generating competition, so much the better.

Proportionality & Transparency

11. If, as the Claimant in this case recognises, after a detailed navigation of the Rules, the
court is still left with the issue of whether the overall, composite medical expert’s fee
(inclusive of agency fee) is reasonable and proportionate, it is difficult to see how such
an evaluation can be undertaken without knowing what the component parts of the
overall fee charged are.
12. For example, in an action with a notional value of £50,000.00 a doctor might charge
£3,000.00 for an expert’s report. Due to “macro-economic” factors the agency fee
applied might be £2,000.00. The bill is £5,000.00. In deciding whether this amount is
proportionate the paying party and the court is entitled to know what the component
parts of the total are. One component may be proportionate and the other not (more
likely both are not) – making the whole disproportionate. Just as importantly, the
receiving party is entitled to know why the fee has been reduced on grounds of
disproportionality.
13. In my judgment, transparency is a matter of some importance, not least of all because
commissioning solicitors should, and are certainly entitled to, assess the reasonableness
of the agency fees rather than simply (metaphorically) shrugging and saying: “that’s
the system”, assuming someone else will pay for it. This would be, and is, a recipe for
fee-farming by the agencies and is to be deplored.

14. I do not accept that the application of bare percentages is helpful. Some might
reluctantly be prepared to accept that a medical expert’s fee of 10% of the notional
value of an action was proportionate in arithmetical terms – and in lower value claims
one might expect the medical expert’s fees to be a greater proportion of the notional
value of the action. The medical evidence may be pivotal, essential and sometimes even
decisive. All these factors are part of the proportionality picture. The approach to an
agency commission is entirely different. If the total of 10% itself comprises an agency
fee component of 50% (i.e. 5% of the notional value) the landscape is entirely changed.
Whatever might be considered proportionate for “medical value” is not capable of
adjudication without knowing what that figure is. The “medical value” of the total
charged may be important as a matter of proportionality, but the administrative value
of the commission in the undivided total is less so (but certainly not valueless).

15. Taking a prosaic example. If someone was interested in booking a hotel, they might
consider a nightly charge of £1,000.00 reasonable and proportionate to the quality of
the accommodation and the services available. When asked for a 50% booking fee of
an additional £500.00 they may be less inclined to think so. Such a person would
obviously look for another means of securing the accommodation at the proportionate
accommodation price without being fleeced by the commission agent. Transparency
reveals the underlying or integral disproportionality. When faced with a charge of
£1,500.00 the punter considers the whole disproportionate. If that same person books
for £1,000.00 and later discovers that the booking agent got £500.00, I venture they
would consider the (administrative booking) cost disproportionate as part of the whole,
thus rendering the whole unreasonable. Not to put too fine a point on it, that person
would feel cheated. Naturally, if someone else is paying, who cares?

16. This little micro-industry of unknown and unknowable commissions or referral or
arrangement fees underscores the risk that litigation is pursued in the interests of an
economic ecology far removed from the interests of justice or the protagonists. This is
not an unknown problem. The racket that is claims for “Hire Charges” illustrates how
this sort of remote ecology can get completely out of hand to the benefit of nobody but
lawyers and insurance companies.

17. In my judgment, any adjudication on proportionality, in all its various component parts,
demands transparency. Such an adjudication should not be hijacked by empty
grandiloquent protestations of “macro-economic” factors. The unavoidable suspicion
is that the absence of transparency indicates that the agencies have something to hide.
I entirely exclude from my thinking any unworthy suspicion that cross-commissions
(“back-handers”) are in play in this process. If I am wrong, the agencies will no doubt
be pleased to demonstrate so.
18. I do not consider it unreasonable that a paying party – even an insurance company –
should know what it is paying for and to whom.
19. In the absence of transparency, the courts’ powers to control costs in the various ways
applicable to the “Any-Track” become a mockery.
20. I reject the idea that inclusive costs (medical + referral fee as an undivided sum) can
always be considered as a whole as a percentage of the recovered value in an action or
otherwise as part of a broad-brush assessment. I reject the idea that such a process is
ever justified. This grimly arithmetical approach does violence to the very concept of
multi-factorial proportionality [CPR 44.3(5)]. If proportionality was only about money
a successful personal injury claimant with neck ache for 12 months could never recover
costs exceeding £2,000.00.
21. I also reject the notion that identifying the administrative fee within the undivided
expert evidence invoice is a process of such fiendish complexity as to defy clarification
– even in general terms. If, in the unlikely event that it is, the agency fee must be
redolent with the stench of presumed disproportionality. I do not accept that, however
sophisticated the algorithm, it cannot be reduced to a tolerable explanation even for a
judicial bonehead like myself. If it is so complex, it is time that it wasn’t.

THE JUDGE’S CONCLUSION

The judge carried out a detailed review of the rules and the case law. He concluded that the agency should provide a break down. In the absence of a break down the court should come to its own view as to the appropriate sum for the report and the claimant would be limited to that figure.

37. I am all in favour of consistency, but I consider the Claimant’s propositions to be
flawed. Consistency would be achieved at all stages and for all types of case if the
agency fee was disclosed, just as if it were not disclosed. There need be no difference
between those cases where the Claimant settled and other cases. I am not persuaded by
the argument that because we don’t, at the moment do it in other types of case, therefore,
we don’t have to do it at all.

38. It may well be that there would remain many cases in which the undivided disbursement
was so obviously proportionate that Defendants and the court alike would consider a
summary determination of proportionality perfectly appropriate without a breakdown.
There will be other cases in which a Defendant decides to let the point go.

39. It is for the Claimant to establish proportionality. The agencies can also do this. If
required to do so the “market” will soon adjust to cooperate with the Claimant’s
solicitors in this regard in providing the necessary information. I am a little surprised
that Claimant’s solicitors do not want this information themselves as a condition of
using the agency services.

 

THE JUDGE’S CONCLUSIONS

Conclusions

40. I draw the following propositions from the above.
40.1 In principle medical agency fees are recoverable [CPR 45.29I and 2(a)]. It is
referrable to the obtaining of medical reports within the relevant Protocol.
40.2 If the amounts are not agreed, it is necessary for the Claimant to make a CPR 23
application for a determination by the court of the claimed disbursement.
40.3 On such a determination the principles of proportionality are engaged.
40.4 In considering proportionality the court is entitled to consider what the fees are
that are attributable to the medical referral agency.
40.5 The court is unlikely to be able to adjudicate on proportionality (or it will be more
difficult to do so) without being able to determine whether the relevant fee is in
proportion to that which would have been charged by a solicitor doing the work in
conjunction with all the other factors that inform proportionality.
40.6 In the absence of agreement or a summary determination of the court in an obvious
case, the paying party is entitled to know who is being paid what and what for.
40.7 The court is entitled to require transparency from those whose fees form part of
claimed and potentially recoverable costs.
40.8 The court is entitled to bear in mind in costs management terms that whilst the
sums involved in individual cases may be small, the commercial value of the entire
market to the agencies is enormous.
40.9 Despite protestations to the contrary, medical agencies should be able to provide
at least sufficient indicative information as to the proportion of the medical invoice
that reflects the true value of their commission.
40.10 “Commercial sensitivity” does not override these considerations. Transparency
is just as likely to produce a more competitive market, and in any event,
commercial sensitivity does not have any impact on proportionality.
40.11 Transparency is no more likely to impede the brisk application of fixed costs
regimes than obfuscation.

 

ENFORCEMENT

Part 18 – Enforcement
42. I am unmoved by implicit threats that all this would demand resort to non-party
disclosure applications and satellite litigation or even detailed considerations of
whether the relevant information was within the control of a Claimant in the sense that
the Claimant has the right to obtain the relevant documentation from the medical
referral agency.
43. The Claimant (or her advisers) can use agencies that are prepared to be transparent
rather than those who are not. Alternatively, the work can be done in-house as it always
was. It seems to me to be that it would be an enfeebled court system that buckled under
any suggestion that a non-transparent cartel would simply withdraw its services en mass
from the market if required to be open. The agencies may be cheaper than in-house
services in which case the agencies should not hesitate to tell us and should be
displaying their proportionality for all to see.
1
44. As a last resort there is no reason why a Defendant should not adopt the course taken
here by means of a Part 23 application for Part 18 Further Information. Part 18 is drawn
widely enough to cover such an application. If the Claimant’s advisers do not know the
answer, they should. It may be possible to extrapolate an answer or a sufficient
indication from professional fees charged by medical experts not chained to referral
agencies. In the final analysis an Unless Order for the provision of the necessary
breakdown would encourage the cooperation of an agency under the threat that
otherwise the determination of the relevant medical invoice would be either “nil”
because proportionality cannot be conscientiously assessed (see the judge’s alternative
in Fox above) or significantly reduced out of an abundance of caution – the Claimant
having failed to show that the disbursement as a whole is proportionate.
45. A proportionate Order or sanction pursuant to a Part 18 Request may be to the effect
that unless the breakdown information is forthcoming then the recoverable fee is
determined to be X% of the undivided figure on the basis that proportionality indicates
that something is recoverable (for the medical fee and the agency charge), but it is
impossible to make a more precise assessment.

 

ENFORCEMENT IN THE CURRENT CASE

46. After all that, I am invited to undertake a determination in the present case. I do so in
the context of the type of Order I foreshadowed in paragraph 45 above.
47. I have read the report of Dr Sanders. It is very straightforward. It adds little to the fund
of information available from the Claimant herself. He recommends a yet further report
from a psychiatrist. It does not seem to have stretched his expertise or exercised his
speciality to any great extent. It cannot have taken long to prepare given the experience
revealed in his CV. This is only one of 150 reports he writes a year. Most are apparently
relevant to “complex” cases of which this was not one. The injuries within Mr Sander’s
speciality are not severe.
48. As I cannot assess proportionality with reference to any percentage of the £2,916.00
referrable to the agency fee in comparison to, for example, a solicitor’s cost in
undertaking a referral role or the element of the settlement attributable to this aspect of
the injuries (which I do not know), I have to err on the side of caution.
49. I reject the submission that £2,916.00 is prima facie proportionate to a claim valued at
settlement in total at £40,000.00. The Claimant must pay the price of a lack of
information. This is not a punitive approach but recognises how an assessment of
proportionality is hampered by lack of transparency.
50. The report of Dr Sanders (including examination and review of records) must have cost
something and the recoverable agency fee will not be nil. To assess it at “nil” (the Fox
alternative) would be an unduly harsh sanction.
51. Accordingly, doing the best I can, I will Order that unless the breakdown information
is forthcoming the Claimant’s costs in respect of the disputed disbursement be limited
to £750.00 plus VAT making a total of £900.00.
152. The balance of the fixed costs not in dispute should also be paid, although I have to say
that the arithmetic in the Claimant’s application notice did not make a lot of sense. This
was later clarified.