EWJ June 61 2025 web - Flipbook - Page 56
The Continuing Issues Relating to the Assessment
of Expert’s Fees in Composite Invoices - and the
Distinction Between Detailed Assessments of Experts
Fees in Fixed Costs Regimes
by David Taylor - Barrister at St John's Buildings
Whilst it is likely seen as trite that the costs of
“obtaining a medical report” includes the costs of the
agency fees (in place of Solicitor’s profit costs) and not
simply the charge made by the expert to produce the
report, the extent of such agency costs that are recoverable, contained within a composite invoice, remains
a challenge for the Court on assessment. A review of
some recent cases and the distinction drawn between
detailed assessment and the assessment of expert fees
in fixed costs casesc
satisfied that it is clear that PD 47 imposes a duty on the
receiving party to provide the fee note of any expert
instructed and, where such costs are claimed details of
the costs of any MRO. Premex is not an expert. Its invoice cannot be described in any sensible way as a fee
note and is in any event not the fee note of the expert.”
Having allowed the appeal, he required the receiving
party to provide a breakdown between the Premex
costs and the expert costs and to provide copies of the
experts’ fee notes. “I propose to order in addition,
given what in my view is a clear failure to comply with
PD 47, that in default of compliance with the order
that items 53 and 58 each be assessed at zero.”
Background
For many years it has been commonplace that litigants
use medical agencies to procure medical reports in PI
and clinical negligence cases and that the costs of so
doing are prima facie recoverable. Such costs are in
place of the costs historically allowed on assessment
for Solicitors’ profit costs if they were to instruct an
expert directly.
The receiving party did not provide the breakdown
but instead lodged an appeal to the Court of Appeal,
that was eventually abandoned without being
determined.
Do the obligations differ in the case of an assessment
of an expert’s fee in a fixed costs case and in a
detailed assessment?
In CXR v Dome Holdings Limited (unreported) 14th
August 2023, Senior Costs Judge Gordon- Saker
(SCCO) considered competing persuasive but not
binding authorities as to the extent of disclosure required in order for the Court to perform its assessment function. This was a detailed assessment case.
In Stringer v Copley (2002) unreported – HHJ Cooke –
it was held that there is no principle which precludes
the fees of a medical agency being recoverable, provided that those fees do not exceed the reasonable and
proportionate cost of the Solicitors doing the work.
Judge Cooke went on to say, “It is important that their
invoices or fee notes should distinguish between the medical fee
and their own charges, the latter being sufficiently particularised to enable the costs officer to be satisfied that they do not
exceed the reasonable and proportionate cost of the Solicitors
doing the work.”
The issue he was to determine seems to have mirrored
that in Northampton v Hoskins, and he followed the decision of HHJ Bird. He concluded that the PD requires the fee notes of the expert and in the absence
of a breakdown of the fees of the expert and the
agency, it is impossible to perform the exercise in
Stringer v Copley, being the task of deciding whether
those fees are more or less than the Solicitor would
have charged for doing the same work.
The issue arose in an appeal before HHJ Bird in
Manchester in the case of Northampton General Hospital NHS Trust v Luke Hoskin (1st tier appeal) 22nd May
2023. The main issue before the Court was whether a
breakdown of the medical agency fee was required to
be served by the receiving party (in the detailed assessment). Deputy District Judge Harris, sitting as a
regional costs judge, had refused the Defendant’s application for such a breakdown at the initial assessment. Premex who had produced the invoice had
refused to provide a breakdown and simply asserted
that the amounts were reasonable and proportionate.
In hearing argument however, he went on to add to
the jurisprudence of the alternative approach (assessing a reasonable and proportionate fee without a
breakdown) adopted by District Judge Jenkinson in
the case of Sephton v Anchor Hanover Group
(unreported) 20th April 2023.
Allowing the Appeal by the Defendant, HHJ Bird
found that pursuant to PD47 5.2 (c) ‘On commencement of detailed assessment proceedings, the receiving party must serve on the paying party the following
documents, ‘Copies of the fee notes of Counsel and of
any expert in respect of fees claimed in the bill.’
In Sephton, the issue arose, but in the context of the
case being a fixed costs case under the EL/PL protocol and was in fact an application for non-party disclosure against the medical agency for a breakdown
of the agency invoice. This related to expert’s fees and
also the cost of an MRI scan. The fact of the application being brought as a non-party disclosure application does not seem to have affected the rulings made
HHJ Bird found that the wording of this was “very
clear and admits of no doubt”. He concluded “I am
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