Case Study – Medical Expert Witness Fees Breakdown not Required

 

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ARC Costs recently assisted on a Road Traffic Accident dispute fixed costs case whereby the paying party refused to pay the medical expert fees without a breakdown of the same. The case proceeded to a Provisional Assessment Hearing, and the Court agreed that a breakdown was not required.

 

Case study: Facts of the Case

ARC Costs were contacted by the instructing solicitors to assist in the recovery of legal costs in a road traffic accident case. The claimant suffered multiple injuries as a result of the accident.

The Claimant instructed an Orthopaedic Expert, to prepare a report on their injuries. Within the subsequent report, the expert confirmed the Claimant sustained a soft tissue injury to the neck and left shoulder area.

The expert confirmed the Claimant’s ongoing symptoms which included neck pain, lower back pain and pain in his knees. The expert recommended the Claimant obtain an X-ray of the spine and an assessment from a Clinical Psychologist.

The Claimant proceeded to instruct a Clinical Psychologist to prepare a report, In the ensuing report dated 1 March 2022, the expert confirmed the Claimant suffered from PTSD, travel anxiety, disturbed sleep, low mood, social withdrawn and intrusive thoughts and memories. The expert also confirmed the Claimant retired early due to the accident and recommended CBT therapy for the Claimant.

The claim settled by way of a Part 36 offer in the sum of £22,000.

 

Case Study: Costs in the Case

The Defendants refused to pay the costs of the Orthopaedic report, psychologist report, and MRI scan, and thus, a fixed costs Bill of Costs was required. ARC Costs were instructed to draft the bill of costs and proceed to negotiate a settlement of the costs via the detailed assessment process. The bill of costs included fixed costs for solicitors’ advice and assistance, as well as the medical expert witness fees.

The total bill amounted to £2,000.40.

The Defendants, within their Points of Dispute, relied upon Civil Procedure Rules 47, Practice Direction 5.2 which states:

“On commencing detailed assessment proceedings, the receiving party must serve on the paying party …

(c) copies of the fee notes of counsel and of any expert in respect of fees claimed in the bill’

(d) written evidence as to any other disbursement which is claimed and which exceeds £500.”

They further relied upon the case of AKC v Barking, Havering & Redbridge University Hospitals NHS Trust [2002] EWCA Civ 630, on the basis that failure to provide a breakdown of medical agency fees presented the Paying Party with an opacity in relation to the Claimant’s costs.

Within the replies with which ARC assisted, it was stated on behalf of the Receiving Party that these arguments should be considered to be opportunistic at best, and a clear example of entirely unnecessary satellite litigation.

Reference to CPR 47 for a breakdown of medical agency fees was considered to be misguided.  Not only had the Paying Party been inconsistent in their approach, by accepting some medical agency disbursements as claimed and not others, but it was noted their approach to Counsel fees was inconsistent with the approach to medical agency fees.  Despite both having fee splits between the individual providing assistance (barrister/expert) and administrative staff (chambers/agency), the Paying Party was only insisting for a breakdown on a single medical agency fee.  It was queried why only medical agency fees were challenged, for a single item, and also why comparative material evidence to suggest the agency fee was unreasonable had not been provided (this being despite the Paying Party being represented by a national law firm with access to ample comparative invoices).

The Receiving Party also questioned why the Paying Party was suggesting that the Court should become the arbiter of what is/isn’t a reasonable agency uplift, which would reflect a severe interference in competition in the market.  This would also lead to the inevitable outcome that the judiciary would become responsible for setting market rates for experts and agencies, which is clearly not intended by the wording of CPR 47.

The Paying Party’s reference to AKC also appeared misguided. The issue in the cited case was whether a failure to name the fee earners who conducted the case would render a bill “intolerably opaque”, It was determined by the Court of Appeal that failure to name the fee earners in a Bill of Costs would be inappropriate. However, this was not the issue in the subject matter, particularly given that the identity of the medical experts was known.

Following failed negotiations of the bill, the case proceeded to a Provisional Assessment Hearing where it was ordered that the Defendant was to pay the full costs as claimed within the Bill of Costs. The Court further ordered that the Defendants pay the Claimant’s costs of Detailed Assessment in the sum of £1,000 plus VAT, plus the Court fee.

 

Medical Expert Witness Fees

In the England and Wales, the fees charged by expert witnesses must be reasonable and proportionate to the issues in the case. The Courts have discretion to scrutinise and, if necessary, reduce fees that they deem excessive. In some circumstances, a breakdown of medical expert witness fees may be required to help the Court determine the reasonableness of the fees.

In the circumstances of this case, it was not deemed necessary for the Claimant to provide a breakdown of the medical expert witness fees.  Such an approach is considered unnecessary, particularly given that market competition serves to drive fees downwards, and therefore a medical agency fee can be proven unreasonable or disproportionate, simply by comparing to market comparators.  The breakdown between the agency and expert fees is therefore inconsequential, and will also subsequently lead to the critiquing of individual experts who charge more than others (which brings the argument full circle in any event and therefore does not resolve any problem Paying Parties purport exist).

 

How can ARC Costs Assist?

ARC Costs are a team of specialist Costs Draftsmen and Costs Lawyers who regularly assist in disputes relating to costs for both claimants and defendants.

We have particular expertise in providing assistance, advice and guidance about expert witness fees in all types of cases, including fixed costs disputes, clinical negligence, and housing disrepair.

We provide wide-ranging legal costs services, whether it be initial advice as to your retainer, to assisting with the preparation of a Costs Budget or Bill of Costs, ensuring ample information is provided in a detailed costs document to ensure maximum recovery. We also assist paying parties in preparing Points of Dispute for those cases where you believe the costs claimed are unreasonably high.

Irrespective of which side you are on, ARC Costs are here to assist, and can conduct advocacy and any Detailed Assessment Proceedings on your behalf.

We also assist in the recovery of costs in legal aid cases.

Should you wish to discuss a query further, please contact us on 01204 397302 or email one of the team at info@arccosts.co.uk. Alternatively, you may complete our online query form, and we will contact you to discuss further.

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01204 397302

info@arccosts.co.uk

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