Medical Agency Cost – Is a Breakdown Necessary?

JXX v Archibald [2025] EWHC 69 (SCCO)

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Why is There Interest in Medical Agency Cost in Recent Years?

We have now had fixed fees in low personal value injury since April 2013 (and earlier in pre-issue RTA claims), and these have been extended further in October 2023 to the majority of litigation up to a value of £100,000, causing an increased interest in medical agency cost.

Since the Jackson Reforms in April 2013, there has been an intensifying dispute between Paying and Receiving Parties as to what is considered reasonable and proportionate for expert fees.  Whilst in RTA personal injury claims, the costs of certain medical expert (GP, orthopaedic and physiotherapy experts for example), the large proportion of other types of experts do not have fixed fees.

There is also the additional involvement of expert agencies (quite often medical reporting agencies), who arrange the obtaining of expert evidence, vet the reports obtained, and also provide a central communication point for legal professionals and experts to co-ordinate instructions.  The expert agency does of course however, not work for free, and they apply their charges on top of the actual expert fee, to produce an end invoice which is presented to the Solicitor for payment.

Naturally fees have increased over the years, but a debate has begun to grow, and is now extensively being explored in the Courts, as to whether it is appropriate for a medical agency to charge on top of the expert fee claimed (the argument being that, if a Solicitor is claiming fixed costs, then is the medical agency completing Solicitor work and claiming a duplication of these fixed fees), and if so, to what extent is any additional charge reasonable?

Finally however, some senior guidance has been provided by the Senior Courts Costs Office on the issue following the recent decision in JXX v Archibald.

Where Did the Dispute as to Medical Agency Fees Start?

Stringer v Copley (2002) originally explored the issues with assessing medical agency charges, wherein it was determined that it was preferable for a Receiving Party to provide a breakdown of any medical agency invoice between the actual expert fee and medical agency cost.  Stringer did not compel Receiving Parties to do this however, and it was stated that assessment of a medical agency invoice was possible without the breakdown.

Fast track to the 2020s and there have been a number of minor decisions on the issues of medical agency fees, but the issue itself was not pushed much further until 2023.

The decision in Northampton General Hospital NHS Trust v Luke Hoskin (Administrator of the Estate of Pippa Hoskin deceased) (County Court at Manchester, on Appeal) (22 May 2023) caused a period of somewhat disarray on the issue of medical agency cost, whereon appeal, His Honour Judge Bird overturned the original decision of a Deputy District Judge, and stated that the Receiving Party must provide a breakdown of a medical agency fee note, otherwise the disbursement would be assessed at nil.

Inconsistency from the Courts approach to medical agency costs has ensued, and while Hoskins was due to be heard further on appeal, the proceedings were ultimately resolved, and no senior guidance on the medical agency cost issue has been handed down.

How Have Parties Responded to the Decision in Hoskin?

Tactics from Paying Parties since has been to request a breakdown of any medical agency fees, absent which they will sometimes not make any offer for the relevant disbursements, and sometimes a formal Part 18 Request has been made for the information.  This approach is understandable however, the difficulty for Receiving Parties here is that often, the Solicitor does not hold this information, nor is the medical agency willing to release it. 

The Court’s appetite for the approach of not allowing medical agency fees without a breakdown was at first concerning, and on some occasions has led to an assessment of nil for the relevant disbursement, but the position has since somewhat softened, with more decisions being reported that whilst Courts would prefer a breakdown to be provided, it is acknowledged that there is atleast a basic cost payable for an expert report.  On some occasions, a nominal sum has been permitted for the expert fee, the concern being that the lion’s share of a medical agency invoice may go to the medical agency, with the expert only getting a minor element of the overall fee. 

However, in some recent decisions, the Court on assessment has considered the issue of proportionality and stated that, to proceed to assess a medical agency fee in such detail, when overall the amount is not considered excessive, was simply unappealing and would exceed the reasonable and proportionate costs suitable for the assessment proceedings. 

In certain circumstances, the medical agency fee has subsequently been allowed in full, without the requirement for a breakdown to be provided (see decision by Deputy District Judge Iyer in Craven v Henley, County Court at Manchester, November 2024).

Inconsistency remained in the Courts however, and binding guidance on the issue was needed.

JXX v Archibald [2025] EWHC 69 (SCCO)

The first binding guidance on the issue of medical agency cost has been provided by the Senior Courts Costs Office.

In JXX v Mr Scott Archibald [2025] EWHC 69 (SCCO), Costs Judge Rowley was in the process of conducting a detailed assessment of the Claimant/Receiving Party’s costs (not a fixed costs case assessment) in a Multi Track clinical negligence matter, for which the Bill of Costs totalled £901,026.98.  Of this amount, £253,859.96 (inc. VAT) related to expert fees, of which circa. £121,000 was disputed by the Paying Party.

As in other cases, the main issue as to the medical disbursements/fee notes here was that the Paying Party wanted a breakdown between the medical agency cost and expert fees in the invoices presented.  The medical agency (Medical and Professional Services, MAPS) had refused to provide any breakdown, though it was noted in previous cases such disclosure had been provided (more on this below).  The Paying Party submitted that this essentially prejudiced their ability to scrutinise the costs (this would be akin to the opacity argument raised in Barkingalbeit on a different issue).

Costs Judge Rowley did note in his judgment (Paragraph 32) that the Paying Party had been reluctant to produce material evidence in support of their position, that the Claimant’s expert’s fees were purportedly unreasonable.  It was agreed with the Receiving Party that, the Paying Party had access to comparable expert invoices (potentially from the same experts used by the Claimant) but that they had failed to produce evidence to support their assertions that the fees claimed were unreasonable.  This was criticised by Master Rowley, and it was stated that both parties had a duty to provide any evidence helpful to the Court to assess expert the fees.

Ultimately however, it was concluded by Costs Judge Rowley, that the Receiving Party had two options as to how they could have the medical agency fees assessed:

1. On the basis of the expert’s evidence and the MRO work in obtaining that evidence if the information sought in paragraphs 2 and 3 of the defendant’s draft order is provided (i.e. a breakdown between the medical agency cost and expert fee);

2. On the hypothetical basis that there had been no MAPS’ involvement and the fees claimed are solely for the expert’s evidence, if no such information is provided.

Disclosure of a breakdown of the medical agency cost and expert fee has not yet been provided at the time of writing, and it remains to be seen what route the Receiving Party elects to go down in these detailed assessment proceedings.  Guidance is still required on, if a full breakdown is provided between the medical agency and expert fee elements, what uplift would be considered by the agency to be reasonable, but it is worth noting that from this judgment, Master Rowley observed that the medical agency’s share of invoices in a previously assessed case had been found to be between 30 – 70%, and 59.84% on average.  In respect of those percentages, Master Rowley stated: “Having heard no argument on the point, it is possible that they are percentages which ought to be allowed in any event on an assessment. I do, however, accept Mr Mallalieu’s basic point that the sums in issue are potentially significant.”

The SCCO therefore appears to be open to the idea of medical agency uplifts applying on expert fees and being recoverable between the parties, but it is yet to be determined to what extent a proportion of a medical agency invoice is reasonable to relate to the medical agency cost.

Alternatively, if the Court is to assess the medical disbursement as if it does only consist of the expert report fee, it is yet to be seen how this will be approached, and will it be with direct comparison to invoices obtained directly from experts?

 

How Can ARC Costs Assist in Respect of Medical Agency Cost Disputes?

ARC Costs are a team of experienced Costs Draftsman and Costs Lawyers who regularly deal with a wide array of legal costs disputes.

We have a dedicated niche team that deal with CPR 45 fixed costs disputes, which often give rise to medical agency fee disputes and cause recovery issues for Receiving Parties.  The subject assessment in JXX is in respect of detailed assessment proceedings for a standard basis bill of costs based on hourly rates, and requires a much more in depth analysis of costs, and fixed costs disputes since October 2023 can now be dealt with via the Precedent U process.

If you would like to instruct us to assist, we are independent experts and therefore can be instructed by either the Receiving or Paying Party.

For Receiving Parties, we can assist in drafting your Costs Budgets, Bills of Costs and assisting with conduct of detailed assessment and legal costs negotiations.  For Paying Parties, we are adept at preparing Points of Dispute and securing you significant reductions on your legal costs liability.

To speak with one of our team, please email us on info@arccosts.co.uk with your query, or contact one of the team on 01204 397302.

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