Medical Agency Fees: Defendants Ordered to Pay Costs

The long-running dispute over medical agency fees has produced another significant costs decision, with insurer defendants ordered to pay the costs of proceedings in JXX v Scott Archibald [2026] EWHC 2404 (SCCO).

The latest judgment, handed down on 18 September 2026, follows the Senior Costs Judge’s earlier decision concerning the recoverability of fees charged by medical reporting organisations (MROs). The claimants and medical agencies were found to be the successful parties overall, despite the defendants having succeeded on one important issue concerning the level of mark-up applied to expert fees.

The case is relevant to any law firm dealing with personal injury costs where a medical report has been obtained through a medical agency rather than directly from the expert witness.

It is also an interesting example of how the court determines who has won for costs purposes when neither side has succeeded on every issue.

What is JXX v Archibald about?

JXX v Archibald concerns the fees charged by MROs for obtaining medical evidence in personal injury claims. Medical evidence is a fundamental part of many personal injury cases. Depending on the nature of the injury, a solicitor might require reports from several medical experts.

Instead of instructing each expert directly, firms frequently use a medical agency to arrange appointments, obtain reports and manage the process. The amount appearing on the medical invoice may therefore be higher than the amount ultimately charged by the individual expert.

That difference has become a source of dispute between receiving and paying parties.

When a Bill of Costs includes medical report charges, the paying party may want to understand how the amount was calculated and how much relates to the underlying medical fee as opposed to the services provided by the MRO.

What did the court decide about agency fees?

The defendants had argued for greater transparency over the way agency fees were calculated. An important question was whether MROs should effectively have to provide a detailed breakdown of their charges on an individual case basis.

The court did not accept that they should have to provide the type of granular breakdown that might be expected when examining solicitors’ fee notes and individual items of work.

Some evidence concerning how the fees were calculated was required, but the court took a broader approach to the evidence required from medical agencies. The defendants did, however, succeed on one significant issue.

The earlier judgment limited the mark-up on the underlying expert fee to no more than 25%.

That was an important outcome for paying parties, but it was not enough for them to be regarded as the overall winners of the litigation.

Who won JXX v Archibald?

This became the central question in the latest costs judgment. All sides maintained that they had achieved success. The defendants could point to the 25% limit on the mark-up. The claimants and MROs, meanwhile, had successfully resisted the defendants’ wider argument concerning the detailed justification of individual fees.

Costs Judge Rowley ultimately concluded that the claimants and medical agencies were the successful parties overall. The practical outcome was important.

The litigation resulted in the defendants being required to make payments to the claimants that they would not otherwise have made.

Although the claimants had not succeeded on every argument, the judge considered that they had achieved the overall success required for the purposes of deciding liability for costs.

The defendants were therefore ordered to pay the relevant claimants’ costs of the proceedings.

Do you have to win every issue to recover your costs?

No, and this is one of the wider lessons from the decision. Costs disputes are rarely all-or-nothing.

A party might win on the majority of the issues but lose an important point. Alternatively, a party might succeed on fewer individual arguments but achieve the main practical result it was seeking.

The court can look at the proceedings as a whole when determining which party has been successful.

In JXX v Archibald, the 25% mark-up decision was clearly significant for the defendants. But it did not outweigh the broader outcome achieved by the claimants and MROs when the judge came to determine responsibility for the costs.

What does the case mean for medical report fees?

The case is particularly relevant where medical evidence is obtained through an intermediary. A paying party considering a sum claimed for a medical report may want to know the underlying expert’s charge and how much additional cost has been added by the agency.

Questions may also arise about precisely what that additional charge represents.

For example, there is a distinction between a genuine charge for services provided by a medical reporting organisation and other payments such as referral fees, referrer commission or amounts that do not properly form part of a recoverable disbursement.

Care is therefore needed when examining what a medical agency has actually charged and the evidence supporting it.

VAT can add another consideration. Where figures are stated as inclusive of VAT, the Bill and supporting documentation should make the position clear so that the amount being claimed can be properly understood.

Medical fees can be significant in complex litigation

The issue is particularly important in cases requiring substantial expert evidence. A relatively straightforward personal injury case might involve one or two medical reports. A serious injury or clinical negligence claim, however, can involve numerous experts across different disciplines.

The combined cost of that evidence can be substantial. Where multiple reports are obtained through agencies, disputes over the underlying expert fees and agency elements can have a significant effect on the overall costs claimed.

The principles may also have wider relevance when considering expert expenditure in other areas of litigation across England and Wales, although the particular facts and applicable costs regime always need to be considered.

Different considerations can also apply in legal aid cases, where expert expenditure is subject to the relevant legal aid rules and requirements rather than simply being approached in the same way as inter partes costs.

What happens when medical fees are challenged?

If the parties cannot agree the recoverable costs, medical and expert fees can form part of detailed assessment proceedings. The receiving party will generally need appropriate evidence to support the disbursement claimed.

The paying party can raise objections through Points of Dispute, including arguments concerning the amount charged and whether it is recoverable.

The fact that a solicitor has paid a particular medical invoice does not necessarily mean that the full amount will automatically be recoverable from the opposing party. Likewise, the existence of an agency element does not automatically mean the fee is irrecoverable.

The question is what can properly be recovered under the applicable costs principles and in light of the evidence available.

Our commentary

JXX v Archibald is important because the dispute goes beyond the price of an individual medical report.

Medical reporting organisations are extensively used within personal injury litigation. A decision affecting how their charges must be evidenced and how much can be recovered could therefore have consequences across a large number of claims.

The latest judgment also provides a useful reminder about costs litigation itself.

Technical disputes over a relatively narrow category of disbursement can generate substantial additional legal costs when they are pursued as test cases.

The costs of these proceedings are reported to amount to at least several hundred thousand pounds.

For both receiving and paying parties, there is therefore a commercial question alongside the legal one: how far is it proportionate to pursue a disputed costs issue?

The Court of Appeal will consider the dispute

The position is not yet final. All sides have obtained permission to appeal aspects of the earlier decision, with the Court of Appeal expected to consider the dispute in March 2027.

That means firms should be cautious about treating the existing decisions as the final word on medical agency fees.

The appeal could provide further guidance about the evidence required from MROs and the extent to which their charges can be recovered.

For costs practitioners, claimant firms, insurers and medical reporting organisations, it will be an important appeal to follow.

How ARC Costs can help

ARC Costs acts for both paying and receiving parties where expert fees, medical report charges and other disbursements are disputed.

For receiving parties, we can assist with preparing the Bill of Costs, responding to challenges concerning medical and expert fees, preparing Replies and negotiating the amount recoverable.

For paying parties, we can examine the sum claimed, underlying invoices and available evidence to identify whether medical agency fees or other expert charges should be challenged.

Where agreement cannot be reached, we can also assist throughout detailed assessment proceedings.

With the issues in JXX v Archibald now heading to the Court of Appeal, medical agency fees are likely to remain a significant costs issue. The eventual appeal may provide greater certainty about what evidence is required and how these charges should be approached when assessing recoverable costs.

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