EWJ June 61 2025 web - Flipbook - Page 57
as to the entitlement to disclosure of such a
breakdown.
l that the Court is unlikely to be able to (or it is more
difficult to) adjudicate on proportionality without
being able to determine whether the relevant fee is in
proportion to that which would have been charged by
a solicitor carrying out the same work
Judge Jenkinson followed a decision in Beardmore v
Lancashire County Council (HHJ Wood KC) Feb 2019
in finding that the agency fees were recoverable as a
disbursement under the fixed costs regime, but went
on to find that the breakdown was not required as the
Court was only required to ensure that the total cost of
obtaining the report (or scan) is reasonable and proportionate and the apportionment between the
provider and the agency is of limited relevance.
l the court is entitled to transparency from those
whose fees form part of claimed and potentially
recoverable costs
l providers (despite commercial sensitivity) should be
able to able to provide at least sufficient information as
to the proportion of the medical invoice that reflects
the true value of their commission
This seems to have been a common approach
(sometimes referred to as not being proportionate to
order the breakdown) in fixed costs cases.
l commercial sensitivity does not override these
considerations
l transparency is no more likely to impede the brisk
application of fixed costs than obfuscation.
Senior Costs Judge Gordon-Saker adds one comment
to this jurisprudence in CXR, that the invoices do not
contain an hourly rate as to the cost of obtaining the
report or the amount of time spent, and that this information would be of great assistance in deciding
whether the fees are reasonable and proportionate.
Absent this, the Court simply has the product of the
work done (the report) etc... to go on. It seemed therefore that there are good reasons as to why, although
not required by the practice direction, experts fee
notes should set out the work that was done with
sufficient clarity, including the amount of time spent,
to enable the Court to form a view as to the
reasonableness of the fee.
In short, he encouraged parties to use agencies that
are prepared to be transparent, Part 18 can be used as
a last resort if necessary, an unless order could be used
to compel disclosure, or the fee would be assessed at
NIL or as a percentage of the invoice, as something is
likely to be recoverable, (as opposed to NIL), in
default of disclosure.
In this case, as HHJ Saggerson did not have a
breakdown, and did not find that the fee £2916 was
prima facie reasonable, despite a £40,000 settlement
pre allocation, and so found that in default of the
breakdown, £750+VAT would be allowed. I tis understood that the breakdown was never provided and
nor was the case appealed.
Whilst he ultimately (in CXR) decided that a
breakdown of the fees between the agency and the expert are required to comply with PD 47 (as it was a detailed assessment) he comments as to the assistance
that would be gleaned by time spent and hourly rate
charged, which might assist in those cases where the
PD does not compel the breakdown (non-detailed assessment cases). It would allow the Court to be best
able to perform the function of assessing a reasonable
and proportionate fee if it had such additional information, although slightly differing perhaps to the full
breakdown. It seems that this will be taken rather
more as an obiter comment but perhaps illustrates the
SCCO’s view of the evidence required to assess the
level of a reasonable and proportionate fee.
This is in contrast to the findings of DJ Jenkinson,
albeit HHJ Saggerson did conclude that there may be
cases where the fee claimed is prima facie reasonable.
In Sephton, the paying party seemed not to persist
with the breakdown of the experts’ invoices, but rather
only in respect of the MRI scan, which may have made
the case more likely to be able to be assessed as the
total invoice was prima facie reasonable.
Finally, and more recently, the case of Susan Smith v
Portsmouth Hospital NHS Foundation Trust (2nd October
2024) (unreported) DJ Morris Wrexham, shows there
is good reason for the Court to have a breakdown of
the composite invoice. The Court had made a decision on a provisional assessment (paper) with only a
summary of how the agency fee is calculated. Upon
review with the full breakdown, it was apparent that
the method of calculating the agency fee as summarised, (including referral commission, finance fee,
waive fee, fixed operational fee and profit costs) did
not reflect the cumulative total on the composite invoice when added to the fee charged by the Doctor.
The Court had already disallowed the referral commission, the finance fee and the waive fee, but went
on to disallow all elements of the agencies profit costs
for lack of clarity or certainty.
In Ena Amina-Edu v Esure Insurance Company Limited
8th March 2024 (unreported), HHJ Saggerson took a
different approach to DJ Jenkinson, whilst determining an application for Part 18 responses to a request
for information as to the breakdown of the medical
agency invoice, and the assessment of costs in a case
settled by part 36, and under the fixed costs regime.
He concluded amongst other things, that
l agency fees are recoverable within the fixed costs
regime,
l if amounts are not agreed it is necessary to make a
Part 23 application,
l on such a determination, proportionality is
engaged,
l in considering proportionality the Court is entitled
to consider what fees are attributable to the medical
referral agency,
EXPERT WITNESS JOURNAL
So, in conclusion, whilst there is no binding authority,
in detailed assessment proceedings, there is persuasive case law at DCJ level and Senior Costs Judge level
to say that PD 47 is likely to compel a breakdown.
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