Amini-Edu v Esure Insurance Company Ltd (8th March 2024)
The matter related to a PI case that settled for £40,000.00. Fixed costs applied. The Defendant challenged the cost of a medical report at £2,916.00, inclusive of VAT for the Pain Management Expert. Both sides made applications in relation to costs that came before the Court. The Defendant sought by way of an application, Part 18 Information regarding the breakdown (disclosure of a medical agency fee element) of the fee for the report and the Claimant made an application for a determination of the Claimant’s fixed costs and disbursements pursuant to CPR 36.20(11).
HHJ Saggerson was unimpressed by the lack of disclosure on the part of the Claimant/ medical agency and he made the following analogy. ‘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’.
HHJ Saggerson concluded that whilst in principle medical agency fees are recoverable [CPR 45.29I and 2(a), in considering proportionality the court is entitled to consider what the fees are that are attributable to the medical referral agency.
HHJ Saggerson further commented the court is entitled to require transparency from those whose fees form part of claimed and potentially recoverable costs. HHJ Saggerson thereafter made the point that “Commercial sensitivity” does not override transparency.
In the absence of the breakdown from the agency, the Court limited the report fee to £750.00 plus VAT making a total of £900.00
Commentary – A harsh decision that arguably is detached from the reality of running a PI claim under fixed costs when there is limited time and resources to shop for a ‘reasonably priced’ expert. Reference is made to Northampton General Hospital NHS Trust v Hoskin [2023] unreported where at the 11th hour, the matter was dropped and did not proceed to appeal ultimately resulting in the issue of whether agency fee breakdowns are required at assessment to continue with uncertainty.