Case: JXX v Archibald [2025] EWHC 69 (SCCO)
The Claimant was involved in a road traffic accident. The Claimant lost capacity. The claim was settled at a JSM.
Detailed assessment proceedings were commenced on 20 September 2023 and a bill of costs was served totalling £901,026.98. Disbursements in addition to profit costs were being challenged, in particular the expert fees sourced via a medical agency.
In the points of dispute, the Defendant compared the expert fees of the consultant ophthalmologist, whose first report was the result of a direct instruction by the Claimant’s previous solicitors but whose subsequent evidence was obtained via the medical agency. There was a clear disparity in fees. In the circumstances, the Defendant sought a breakdown in respect of each and every fee rendered by the medical agency showing the fee charged by the expert and by the agency separately in order that the paying party and Court could arrive at a reasonable and proportionate allowance. Pending this further information, the Defendant put in dispute each fee charged by the agency.
The Claimant referred the Defendant to the agency’s user document and responded that in pure cost terms, it was cheaper to employ the use of a medical agency than had the solicitor undertaken the handling of the instruction themselves. The response also referred to the expertise and value of the medical agency and the database of experts available to the agency. The Claimant referenced the case of Stringer v Copley, Woollard v Fowler [2005] EWHC 90051 (Costs) in support.
Costs Judge Rowley promptly dismissed the reference to the case of Stringer v Copley. He stated ‘The then Senior Costs Judge Hurst described this rather tartly in Woollard as being trite costs law. He then said, at paragraph 24: “… The rationale for allowing claimants to recover fees, augmented by the charges of medical agencies, has always been that the agencies are carrying out work that would otherwise be performed by the solicitor at greater cost. The agencies themselves have always been the first to emphasise this point…”
Ultimately, Costs Judge Rowley adopted a pragmatic approach and put the claimant to his election: (i) provide information of the breakdown of the expert’s fees and the agency’s fees so that the Court could properly carry out an assessment, or (ii) have the total fee assessed on the hypothetical basis that the MRO was not involved.
Costs Judge Rowley did acknowledge that this remained a contentious issue (for which he was prepared to grant either side permission to appeal (para 3.)) and a matter that would benefit from authoritative guidance.
Commentary – This is another decision regarding expert fees obtained via a medical agency. Whilst the decision does not go as far Northampton General Hospital NHS Trust v Hoskin [2023] and Amini-Edu -v- Esure Insurance Company Ltd (8th March 2024) in ordering a breakdown, it does not provide clear guidelines as to the level recoverability of the medical agency ‘element’ of the expert fee.