Detailed Assessment Hearing: Medical Agency Fee Dispute



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Overview of the dispute


We recently attended a detailed assessment hearing at the County Court before District Judge Jacqueline Smart. During the detailed assessment of costs process, the paying party served their points of dispute which contested a number of items within the receiving party’s bill of costs. The main items in dispute were a translator fee, which amounted to £180+VAT and a medical agency fee in the sum of £645 + VAT. We attempted to negotiate these fees using points of reply; however, no agreement could be reached and we proceeded to a detailed assessment hearing.


Medical expert fee dispute


The main item in dispute was the fee for a second medical report provided by a medical agency. The defendant had not raised any objections to paying for the initial medical report, which had a fixed fee of £180. The Defendants relied on Powell v Hemmings which prevented the recovery of agency fees as it was classed as solicitor routine work.

We queried why agency fees are allowed for the first report, but not any subsequent reports. Clearly, the Defendant’s argument is flawed.

We highlighted the work done by an agency and stated that this is not only solicitor work, but also work for the expert. We highlighted the fact that, if medical agencies did not exist, then a expert would hire a secretary and the client would be charged for the same.

CPR45.29I (2C) states that ‘ the cost of obtaining the medical report’ rather than being restrictive to costs of the expert themselves, applies. Had it been the intention of the CPR to prevent recovery of medical agency fees, it would have said so. The CPR also, does not state that agency fees are not recoverable.

Using caselaw within our argument, we referred to the Stringer v Copley, Charman v Riley and the Deutsche bank cases to argue that the medical fee can be assessed by the Court without a breakdown. Paragraph 93 of the Deutsch Bank decision states “the court’s approach to this assessment should therefore be one of sensible approximation where sufficient detail has been provided to do that.”

We referred the Court to extracts of case law which allowed agency fees:

Stringer -“ I am satisfied that there is no principle which precludes the fees of a medical agency being recoverable between the parties.”

Charman – “reasonable and proportionate for claimants in each case to instruct a agency to provide reports”.

Beadmore  –“ there is no doubt that the relevant rule does allow for the recovery of the medical agency fee as a disbursement (and over and above fixed costs).

The Defendants argued that the cases we cited were not fixed costs cases. They also went on to state that they were not provided with a breakdown to provide a reasonable offer.

The Court found that the use of an agency was reasonable and the fee in question was not disproportionate as when applying common sense, any admin was clearly minimal.

As such, the Judge awarded the fee in full at £675+VAT.


Translator fee dispute


Interestingly, the translator fee in this case was not allowed. The Court disallowed the fee as the new rules to allow for translator fees are not in place yet, and the case did not meet the criteria set out in Olesiej (cited in Aldred). As the interpreter was used to translate documents which were ultimately signed by the solicitor, and were not used for a Court hearing, the Judge concluded that this did not fall within the remits in Olesiej and so was not recoverable. 


Final costs awarded at the detailed assessment hearing


The defendant argues that application costs should be reduced as a lack of breakdown of costs forced the parties to a hearing. The also contested the hourly rates of fee earners and stated that the Claimants costs were significantly higher than what would have been allowed at provisional assessment.

We argued that the N260 set out the costs we incurred but the Court was not bound by the same. We also highlighted the Defendant’s conduct re lack of response to emails, lack of cooperation and the fact they didn’t realise it was a video hearing until late last week. All of which contributed to our costs. 

The total amount of costs ordered by the Court was £750 +VAT + Court fee, which amounted to £1,175.


How can ARC Costs assist?


ARC Costs can assist throughout the process of detailed assessment, including drafting bills of costs, points of dispute and applying for a default costs certificate if points of dispute are not served within 21 days. Our costs lawyers can also represent both claimants and defendants at a detailed assessment hearing or summary assessment.

Please contact us at 01204 397302 or to find out more. 

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