Medical Legal Report Fees

The majority of personal injury compensation claims, especially those involving claimants with complex injuries will be required to obtain a medico legal report from a medical expert witness.

Medical legal report fees are charges associated with the preparation of reports by medical experts.  Such reports can be obtained by experts directly, or more commonly, by medical agencies who maintain a panel of experts, and often provide beneficial payment terms (delayed to end of case for instance, whereas experts instructed directly often require immediate payment).

Fees vary depending on a number of factors, but of particular concern in recent years is the “uplift” potentially being applied to medical expert fees, by medico-legal agencies.

Other factors taken into account when considering the reasonableness of fees, include an expert’s hourly rate, the content and complexity of the report itself, the type of expertise required, the complexity of the claimant’s injuries.

However, when a medical agency has been involved in obtaining the report, this information is often masked and amalgamated within a single invoice, and additional charges such as administrative fees by medical agencies that facilitate the process are unknown.

There has been an ongoing debate which centres around whether fees for medico legal work should be broken down into detailed components to ensure transparency and allow the court to assess their reasonableness, particularly in relation to any split between a medical agency’s fee, and those of the actual expert.

CXR v Dome Holdings Ltd

In the case of CXR v Dome Holdings Ltd, Senior Costs Judge Gordon-Saker ruled that an expert’s fee note must provide a sufficient breakdown to enable the court to determine whether the fee is reasonable. The judgment highlighted the necessity for transparency in the billing of medical legal reports. Specifically, the judge indicated that fee notes should detail the work done and the time spent to allow a proper evaluation of the charges.

Within the Defendant’s Points of Dispute, the Claimant was challenged for not providing a breakdown of the medical report and agency fees. The fee notes were from the reporting agency and lacked detailed breakdowns.

The judge referred to previous County Court decisions, including HHJ Bird’s decision in Northampton General Hospital NHS Trust -v- Hoskin, which emphasised the need for fee notes to distinguish between expert medical fees and agency charges. This was to ensure that the fees did not exceed what would be reasonable and proportionate if the work were done by solicitors.

The Judge also referred to the case of Stringer v Copley (2002) whereby Judge Cook held that there is no principle preventing the recoverability of medical agency fees, provided that these fees do not exceed the reasonable and proportionate cost of the work if it had been done by the solicitors, and commented:

“It is important that their invoices or fee notes should distinguish between the medical fee and their own charges, the latter being sufficiently particularised to enable the costs officer to be satisfied that they do not exceed the reasonable and proportionate cost of the solicitors doing the work.”

In relation to this, Senior Costs Judge Gordon Saker stated the following:

“One can understand the logic of that. If one needs to consider whether the agency’s charges do or do not exceed the reasonable and proportionate costs of doing the work, one would need to know how much those charges are.”

Senior Costs Judge Gordon Saker further referred to the following caselaw which the claimant was using in support of their argument:

• Beardmore v Lancashire County Council (2019): Judge Wood concluded that agency fees are recoverable under certain fixed costs regimes.
• Sephton v Anchor Hanover Group (2023): Judge Jenkinson decided that the court does not need to know the specific breakdown of fees between the provider and the agency, as long as the overall fee is reasonable and proportionate.

The Judge noted there are conflicting opinions on whether a detailed breakdown of fees is necessary. Some decisions suggest that detailed information on expert and agency fees is needed for a detailed assessment, while others, particularly in the case of fixed recoverable costs, suggest it is not necessary.

Upon consideration, the Judge held that, in this case, the invoices lacked important details such as the hourly rate charged and the amount of time spent. This information would help the court determine if the fees are reasonable and proportionate. Without this information, the court can only judge the final product.

“..In my view, the comments of the late His Honour Judge Cooke and the reasoning of His Honour Judge Bird are the more compelling. First, the Practice Direction requires the fee notes of the expert and, second, in the absence of a breakdown of the fees of the expert and the agency, it is impossible to do the exercise which His Honour Judge Cooke suggested in Stringer: of deciding whether those fees are more or less than the solicitor would have charged for doing the same work.”

The comments of Senior Costs Judge Gordon-Saker are extremely helpful in providing for clarity for all parties involved in these disputes.  It is noted that the Judge accepts that medical agency fees are in fact recoverable in addition to the underlying expert fee, and this is a positive note for medical agencies.

Agencies should where possible, provide details of any global fee between the expert’s cost and the medical agency’s administrative fee so that these can be fully scrutinised by the Court. 

There is however, likely to be further guidance needed in future common law decisions on what exactly a reasonable and proportionate medical agency fee is.  Should it be a proportion of the expert’s cost, or will additional factors need to be taken into account as to what is a reasonable fee e.g. should all medical agencies be treated the same, or are those providing extra levels of service or having to deal with complex issues, entitled to charge more than in other cases?

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 would be happy to assist in any dispute regarding medical legal report fees.

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.

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.