No Medical Agency Breakdown Required says SCCO
Posted on 17th January 2025 at 16:22
In the case of JXX v Archibald [2025] EWHC 69 (SCCO) (17 January 2025), Costs Judge Rowley considered the position where the Defendant had argued that a Bill of Costs was non-compliant because the Claimant hadn't provided the expert fee notes and separate breakdowns of the costs of the medical agency and the experts. The Defendant had asked for the Claimant's Bill of Costs to be struck out or the expert fees to be assessed at nil.
Costs Judge Rowley considered the salient issues and concluded thus:
"34. During submissions there was some comparison of the limited information sometimes to be found on fee notes rendered by counsel and which still needed to be assessed by the court. Mr Mallalieu suggested that the court could require more information to be provided if it felt it necessary and that is undoubtedly the case. But on a standard basis assessment, the burden would be on the receiving party to evidence its claims and if the terms of a laconic invoice induced the court to have doubts about the reasonableness of a bald figure on a fee note, it would be the receiving party who would suffer. I have to say that it would not be my immediate response to provide the receiving party with a chance to get its house in order simply to facilitate the assessment of a fee which had been claimed from the paying party for a number of months before the assessment. The broad approximations required of costs judges often involve assessments based on limited evidence before the court.
35. Nevertheless, the sums in issue here are significant and the issue is one which potentially affects many cases. As such, I am not convinced that my immediate reaction is correct here. In my judgment, the better course is essentially to put the claimant's side to an election.
36. The fees in the composite invoices will either be assessed:
a) on the basis of the expert's evidence and the MRO work in obtaining that evidence if the information sought in paragraphs 2 and 3 of the defendant's draft order is provided; or
b) on the hypothetical basis that there had been no MAPS' involvement and the fees claimed are solely for the expert's evidence, if no such information is provided.
37. For the avoidance of doubt, the term "expert's evidence" includes attendance at conferences and other work in addition to the formal production of reports or attendance at trial.
38. It is for the claimant's side to decide on which of the two approaches these fees will be assessed and it will need to be given a period of time in which to decide which course to take. At the end of that period, the defendant will be entitled to produce any comparative evidence he wishes to rely on, whichever option has been followed."
Implications
The practical implications of this decisions are that, in principle, there would be no requirement for a Claimant or an MRO to provide either a breakdown of agency fees or the expert fee notes.
However, if a Claimant / MRO were to rely on the composite fees (that is the agency fee note) then it is open to the Paying Party to adduce comparable evidence where an expert has been instructed directly. This is likely to make medical agency fees more vulnerable at assessment where no supporting evidence is given and the comparable agency inclusive fee is higher than instructing an expert direct. It should be emphasised that a receiving party who elects not to provide supporting evidence is likely to face vulnerabilities on the level of the fees claimed at any assessment.
This could lead to potential reductions to expert fees where a medical agency is used with questions for receiving parties to address as to how any prospective shortfalls are dealt with (particularly where the receiving party has no supporting evidence).
Costs Judge Rowley's decision undoubtedly pours some cold water on the increasing disputes over medical agency fees and breakdowns. The case is likely to be persuasive with Rowley acting as the interim Senior Costs Judge and the decision coming from the High Court. It will not, however, necessarily dilute the need to support the expert fees claimed where a medical agency is used, particularly on a standard basis assessment where doubt is resolved in favour of the paying party.
A binding judgment at this point remains elusive but this decision will no doubt be more welcomed by receiving parties and MROs than paying parties. Indeed Rowley makes clear here that "I have already indicated to the parties that if either wishes to seek to take this matter further then I will give them permission to appeal." This means we've likely not yet seen the end of the agency fee disputes.
Should you have any queries arising from this article or upon costs generally then please do not hesitate to get in touch with our friendly team. Please e-mail info@carterburnett.co.uk or call 01482 534567 for a chat.
Tagged as: Agency Fees, Detailed Assessment
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