Arguments surrounding the provision of medical agency fees (or more accurately, the proportion of an expert fee which relates to the agency) have lingered for a considerable period of time however, it has mostly been quiet for the last couple of years. However, just like buses, you wait ages for one and then two come along at once! The two cases which have shone a spotlight on this issue are those of Northampton General Hospital NHS Trust -v- Hoskins (2023) and Sephton -v- Anchor Hanover Group (2023). The below article, will attempt to summarise the position as it stands today!
Northampton General Hospital NHS Trust -v- Hoskins (2023)
Background
In the matter Hoskins, the main litigation settled by way of Part 36 and, following service of the Bill of Costs, costs were agreed save for two items:
- (53) £4,500 plus VAT Consultant Obsterics and Gynaecology Report Fee
- (58) £8,775 plus VAT Consultant Cardiologist Report Fee
The invoices in question were issued by Premex Ltd (Medical Reporting Organisation – MRO).
The Defendant (Paying Party) requested a breakdown of how the fees were made up (i.e. between Expert fees and Agency Fees) however, this was rejected. Premex argued that the fees were reasonable and proportionate and therefore the breakdown was irrelevant.
On 9 July 2021 the Defendant issued an Application seeking and Order that the Claimant/ Premex provide a breakdown of the medical fees in question. The initial application was refused however, the case commented upon herein relates to the Appeal of that decision.
Issue in question
The Appeal dealt with a very specific question – is a receiving party required to provide a breakdown in its bill between costs of an expert report and the costs of the MRO approached to provide the report, or is it permissible for the receiving party to submit a bill which simply includes the fee charged by the MRO to provide the medical report?
Arguments
Mr Williams KC argued for the receiving party stating that there was no requirement for a breakdown to be provided. He suggested that if there was any such requirement, the PD would make it clear.
However, in response, Mr Mallalieu KC argued that in order for a Detailed Assessment to take place, the Costs Judge needs to be able to distinguish between agency fees and expert fees. He argued that PD 47 facilitates this exercise in clear and plain terms.
Judgment
Regional Costs Judge Harris concluded that if a party hopes to recover a medical report fee, they must provide an invoice (per PD 47 5.2). Upon receipt of the invoice a party can decide if the amount sought is the “going rate” – without that information, the Paying Party or Court, cannot make a rational evidence based decision as to whether it should be accepted. Therefore, if a party hopes to recover the fee of an MRO, the same principle applies.
The Appeal was therefore allowed. One further point to note is that in the judgment, Costs Judge Harris essentially confirmed that failure to comply with PD 47, will lead to the costs in question being assessed as zero.
It should be noted that this decision is from the County Court and is therefore not binding. Iit is also currently being appealed.
Sephton -v- Anchor Hanover Group (2023)
Background
This is a matter which settled by way of Part 36 with the Claimant being entitled to recover fixed costs under Part 45 (plus disbursements under Part 3 of CPR 45). The issue arose following a request for provision of the breakdown of medical agency fee within an MRI Scan (the Defendant initially argued for provision of information in respect of 5 invoices however, this was whittled down to just the MRI scan).
The Defendant made a Non- Party Disclosure Application (against Target Medical Solutions) for provision of the relevant information
Arguments
The Defendant argued that the Claimant was only entitled to recover the actual costs of the medical practitioner and not any additional charges levied by the medical agencies.
Judgment
District Judge Jenkinson was aware of the historic arguments around the issue and described the argument as “vogue”. In reaching their conclusion, the DJ stated at paragraph 15 that the “Claimant is only entitled to recover reasonable costs. How that is apportioned between provider and the agency is of limited, if any, relevance.”.
The DJ therefore refused the application.
Summary
This is an issue which as been simmering for several years and it seems we are now closing in on a more definitive position however, the question is, what should you do in the interim (before the appeal is heard)?
This is an extremely difficult question to answer however, the first port of call should be to request the breakdown from the agency. If they refuse to provide the breakdown, it seems all that can be done is to highlight the potential risks of not providing the breakdown. However, providing the breakdown clearly isn’t going to be the end of the argument – all this will do is open up a further avenue of challenge as to the reasonableness of any agency fee within the report.
We will certainly be keeping a close eye on the situation!
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