COST BITES 153: ANOTHER ROUND IN THE BREAKDOWN OF MEDICAL REPORT FEES ONGOING SAGA: THE INVOICE SHOULD PROVIDE A BREAKDOWN

I am grateful to Simon Fisher from DWF for providing me with a copy of the judgment of Senior Costs Judge Gordon-Saker in CXR -v- Dome Holdings Limited, a copy of the judgment is available here    CXR v Dome Holdings Ltd – HCJ (SCCO) – Judgment – 20230814 V Final.   The judge found that a fee note for an expert’s report should provide a sufficient breakdown to enable the court to consider whether the fee was reasonable.  This required an indication of the agency fee.

“… there are good reasons why, although not required by the Practice Direction, experts’ fee notes should set out the work that was done with sufficient clarity, including the amount of time spent, to enable the court to form a view as to the reasonableness of the fee.”

THE CASE

The judge was considering a point made in Points of Dispute that the claimant had failed to provide a breakdown of the fees of the medical report and the medical agency. The fee notes were of the reporting agency and did not give a breakdown.

THE DECISION: A BREAKDOWN SHOULD BE GIVEN

The judge considered relevant County Court decisions on the issue, in particular the decision of HHJ Bird in HHJ Bird in Northampton General Hospital NHS Trust -v- Hoskin, County Court at Manchester 22nd May 2023, a copy is available here  HoskinsAppealJudgment.  That decision was discussed in the blog post here. 

THE JUDGMENT IN THE CURRENT CASE

3. The learned judge referred to the well known decision of His Honour Judge Cooke in
Stringer v Copley – I say well known, but I think unreported – in 2002 where, having held
that there is no principle which precludes the fees of a medical agency being recoverable,
provided that those fees did not exceed the reasonable and proportionate cost of the work if it
had been done by the solicitors, commented:

“It is important that their invoices or fee notes should distinguish between
the medical fee and their own charges, the latter being sufficiently
particularised to enable the costs officer to be satisfied that they do not
exceed the reasonable and proportionate cost of the solicitors doing the
work.”

4. One can understand the logic of that. If one needs to consider whether the agency’s
charges do or do not exceed the reasonable and proportionate costs of doing the work, one
would need to know how much those charges are.

5. On behalf of the claimant, Ms Allen relies on two other decisions in the County Court,
that of His Honour Judge Wood KC in Beardmore v Lancashire County Council, a decision
in February 2019, when the issue was whether agency fees were recoverable as
disbursements under the fixed costs regime which applied to cases which had exited the RTA
and the EL/PL pre-action protocols. He concluded that agency fees were recoverable in
principle.

6. In Sephton v Anchor Hanover Group, a decision of District Judge Jenkinson, the
regional costs judge in Liverpool, handed down in April of this year, the judge was faced
with an application for non-party disclosure against a medical agency for disclosure of
documents relating to invoices which the agency had raised in respect of their fees for an
MRI scan carried out in relation to a claimant in personal injury litigation. The court
concluded, following the reasoning in Beardmore, that, because the fee was recoverable to
the extent that it is reasonable and proportionate, the court did not need to know the
apportionment between the provider and the agency.

7. So, on the one hand there are decisions which would suggest that a receiving party in a
detailed assessment should provide details of the expert’s fees and the agency’s fees
separately and there are decisions, on the other hand ,which would suggest that, certainly in
the case of fixed recoverable costs, it is not necessary to do so; and Ms Allen pins her colours
to the mast of the latter decisions on the basis that the court’s task is simply to allow a
reasonable and proportionate figure for the whole disbursement: that is, the expert’s fee and
the agency fee in obtaining the report.

8. To that jurisprudence I would add only one comment before deciding which one I will
follow and that is, in relation to the invoices in this case, there is no indication in any of them
as to what hourly rate has been charged in respect of obtaining the report or as to the amount
of time spent and, it seems to me, that that information is or would be of great assistance to
the court in deciding whether the fees are reasonable and proportionate. Absent that
information, all the court would have to go on is where (inaudible) the product of the work
done, which may be a medical report, it may be a letter or it may be an attendance note
where, for example, the expert has attended, or a conference or telephone call.

9. It seems to me, therefore, that there are good reasons why, although not required by the
Practice Direction, experts’ fee notes should set out the work that was done with sufficient
clarity, including the amount of time spent, to enable the court to form a view as to the
reasonableness of the fee.

10. That aside, in my view, the comments of the late His Honour Judge Cooke and the
reasoning of His Honour Judge Bird are the more compelling. First, the Practice Direction
requires the fee notes of the expert and, second, in the absence of a breakdown of the fees of
the expert and the agency, it is impossible to do the exercise which His Honour Judge Cooke
suggested in Stringer: of deciding whether those fees are more or less than the solicitor
would have charged for doing the same work.

11. Accordingly, subject to submissions, I would require the claimant to provide a
breakdown of the fee notes issued by Premex so as to show the separate fees of the expert
and the agency. It is unfortunate that that is arising in the course of, albeit on the first day, a
detailed assessment, but there we are. An application could have been made in advance of the
hearing.