The issue of medical agency fees has been rumbling on for some time now, with paying parties routinely requesting breakdowns to separate the agency element and the fees of the expert themselves. Any receiving party will know that agencies are not keen to provide those breakdowns and it can often become a sticking point between the parties.
The recent decision of Costs Judge Rowley in the matter of JXX (a Protected Party by his Litigation Friend ABB) v Mr Scott Archibald has now provided further guidance on the issue.
The matter concerned the Defendant’s application for a declaration that the Claimant’s bill of costs was non-complaint for failure to serve copies of the experts’ fee notes and separate breakdowns of the costs of the medical agency and the experts. A stay was requested for the documents to be served, in default of which, the Defendant sought a strike out or all claims relating to the medical evidence to be assessed at zero.
It was Costs Judge Rowley’s view that the Claimant should elect to either provide the breakdown requested or the fee should be assessed on the hypothetical basis that there was no agency involvement at all. Once the receiving party had decided which course to take, the paying party would be entitled to produce any comparative evidence that they wished to rely on.
Practicalities
This is a High Court judgment from a Senior Costs Judge and is therefore a persuasive, whilst not binding, decision.
In practice, it will mean that receiving parties will not necessarily need to provide a breakdown. However, in withholding that information, the receiving party will lose the benefit of the agency element being compared to what the solicitor would have spent for the same work in addition to what the expert has charged. The fee will be assessed as though the expert was instructed directly and it will therefore be easier for the paying party to provide evidence to show that cheaper alternatives were available. Reductions therefore seem more likely and careful consideration should still be given to providing a breakdown where appropriate.
If you have any questions regarding this summary please contact Helen Spalding here.
