Expert and agency fee notes must be provided

Northampton General Hospital NHS Trust v Hoskin – County Court at Manchester – 22 May 2023

In an important judgment, HHJ Bird found the invoice of a medical reporting agency is not a fee note for an expert or an agent. CPR 47 imposes a duty on receiving parties to provide the fee note of any expert instructed and the details of the costs of any medical reporting agency.

Case summary

The substantive clinical negligence claim was settled by acceptance of the defendant’s part 36 offer. The claimant served a bill of costs, in which the following items were claimed:

• £5,400 plus VAT – Medical report from a consultant in obstetrics and gynaecology
• £8,775 plus VAT – Medical report from a consultant cardiologist

Invoices from Premex Services Limited were served with the bill in support of these items.

The defendant requested a breakdown of how much related to the individual medical report and how much related to the services provided by Premex. The claimant refused to provide a breakdown on the basis that the invoiced amount was both reasonable and proportionate and no breakdown was needed. The defendant applied for an order to compel the claimant to provide a breakdown.

The application was dismissed at first instance and the defendant appealed.

The issue on appeal

Is a receiving party required to provide a breakdown between the cost of an expert report and the costs of a medical reporting organisation (“MRO”) approached to provide the report, or is it permissible for the receiving party to submit a bill which simply includes the fee charged by the MRO to provide the medical report?

The law

CPR PD 47 paragraph 5.2 provides:

“On commencing detailed assessment proceedings, the receiving party must
serve on the paying party and all the other relevant persons the following
documents —
… (c) copies of the fee notes of counsel and of any expert in respect of fees
claimed in the bill;”

CPR PD 47 paragraph 5.12 provides:

“The bill of costs may consist of items under such of the following heads as
may be appropriate—
… (9) attendances on and communications with… agents and work done by
them…”

In Stringer v Copley (2002), HHJ Cook dealt with an appeal over a £375 fee from an MRO where no breakdown had been provided. The judge was,

“satisfied that there is no principle which precludes the fees of a medical agency being recoverable between the parties, provided it is demonstrated that their charges do not exceed the reasonable and proportionate costs of the work if it had been done by the solicitors.” (emphasis added)

HHJ Cook expressed concern that:

“although the District Judge allowed the charge of Medplan in full, neither he, nor I, nor the paying party know how much of the sum of £375 was the doctor's fee and how much were the charges of Medplan. To demonstrate the point by taking an extreme, if the doctor's fee were only £75 and Medplan's charges £300, the total of £375 would undoubtedly be unreasonable and disproportionate. It does therefore seem to me important that, whilst there is much to commend the use of medical agencies, 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 cost officer to be satisfied they do not exceed the reasonable and proportionate cost of the Solicitors doing the work.” (emphasis added)

The arguments

The claimant argued that there is simply no requirement for a breakdown under the rules. The defendant argued that the MRO is not an expert and so its invoice cannot be regarded as an expert fee note under CPR PD 47 paragraph 5.2 or work done by an agent under CPR PD 47 paragraph 5.12.

Judgment   

HHJ Bird held that the language of PD 47 is very clear and admits of no doubt. Paragraph 5.2 applies if the receiving party is asking the paying party to pay for the cost of an expert. If that is the case, then the receiving party is required to provide a copy of the expert’s fee note(s).

Without a fee note the paying party cannot make a rational, evidence-based decision about whether to accept that aspect of the bill, reject it, or make a counteroffer. The court is in the same position.

Where the paying party seeks to recover the fees of an MRO then the same point applies.

HJ Bird said,

“I am satisfied that it is clear that PD 47 imposes a duty on the receiving party to provide the
fee note of any expert instructed and, where such costs are claimed details of the costs of
any MRO. Premex is not an expert. Its invoice cannot be described in any sensible way as a
fee note and is in any event not the fee note of the expert.”

Keoghs comment

This is a welcome judgment reaffirming the points made by HHJ Cook in 2002. In the absence of a breakdown of expert and agency fees and separate fee notes, paying parties and the court are faced with an impossible task of assessing what is reasonable and proportionate.

The fee charged by the medical agency is for work that a solicitor would normally do. Medical agencies will need to satisfy the court that they do not exceed the reasonable and proportionate cost of the solicitors doing the work.