Parsons v Stevens
The matter related to a road traffic accident case that settled shortly before Trial. Fixed costs applied. The Claimant was given permission to rely on the reports of four expert witnesses, including Dr Francis Luscombe, a specialist in pain medicine. Dr Luscombe’s report was obtained via Premex, who charged a disbursement of £5,880.00 plus VAT for the Pain Management Expert. The Defendant challenged the cost of a medical report.
The Defendant sought by way of a Part 18 request Information regarding the breakdown (disclosure of a medical agency fee element) of the fee for the report.
The Claimant responded that Premex were unwilling to provide commercially sensitive data as they do not consider the request to meet the test set out in PD18 1.2, in that the information does not cover matters which are reasonably necessary and proportionate to enable the Defendant to prepare its own case.
DDJ Fentem found that the disbursement of £5,880 plus VAT, in the context of a claim which was allocated to the fast track raised immediate concerns about its proportionality, and that a breakdown of its constituent parts may assist a costs judge in her proportionality assessment. DDJ Fentem went further and stated
‘If, for instance (without intending to affect the result of an application for determination), £1,500 was paid to Dr Luscombe, the court might well conclude that that was proportionate, but that £4,380 was not a proportionate or reasonable sum with respect to the Premex Costs. The categories of work comprising the two elements are very different. Indeed, it is not difficult to imagine the hypothetical costs judge coming to different conclusions on exactly the same global sum, depending on the breakdown’. DDJ Fentem went on to say ‘These sorts of arguments are only available to the Defendant if a breakdown is provided’.
Finally, in so far as the Defendant’s invitation to impose a sanction for non-compliance by way of disallowing any of the Disbursement, DDJ Fentem opined this was too draconian. Rather, it was more satisfactory to identify a specified sum that the Claimant would recover unless a reply is given. In the circumstances, he ordered that unless the Claimant provided a response by the date to be determined, the disbursement shall be assessed in the sum of £1,500 plus VAT broken down to £1,250.00 for Dr Luscombe’s fee with the £250.00 balance representing the Premex Costs.
Commentary – Another harsh decision that is once again 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] and Amini-Edu -v- Esure Insurance Company Ltd (8th March 2024) as to the ongoing saga of agency fees. Will Counsel’s fees need a breakdown?