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Hourly rates and time spent “of great assistance” in providing clarity on medical agency fees


The lack of transparency with regard to medical agency fees has, for some time, been a bone of contention for paying parties in the assessment of third-party costs. While it is well established as per HHJ Cook in Stringer v Copley [2002] that such fees are in principle recoverable, they ought not exceed the reasonable and proportionate costs of the work if it had been done by the solicitor.

The difficulty for paying parties has been that evidence as to the grade of staff, hourly rates charged and timed activities carried out is in the control of the claimant and the medical agency. Moreover, requests for a breakdown between expert and agency fees are habitually declined and so there is no transparency. The agencies claim the information sought is commercially sensitive and that their fees are not calculated on a case-by-case basis so full consideration of any breakdown provided would require a detailed and complex analysis of the macroeconomics of the wider medical reporting market. Claimants’ solicitors in turn attempt to absolve themselves of the responsibility to assist the court by contending that the information requested is not within their knowledge.

Keoghs approach has always been that the burden of proof with regard to the level of agency charges levied is essentially the same as for any other entry in a claim for costs which is challenged. If there is no or insufficient evidence to support the item claimed, then it is likely to be disallowed or significantly reduced.

There has been a whole raft of non-binding conflicting authorities on this issue, but the tide does appear to be turning in favour of the paying party. The most notable recent decision is that of HHJ Bird, the Designated Civil Judge in Manchester in Northampton General Hospital NHS Trust v Hoskins [2023], which determined that PD 5.2(c) to CPR 47 imposes a duty on the claimant to provide the fee note of any expert instructed.

Last month in Aminu-Edu v Esure, HHJ Saggerson concluded in very uncompromising terms, that commercial sensitivity does not override considerations of proportionality and transparency. He completely dismissed the smoke and mirrors of “macroeconomic” factors relied upon by Premex. He was convinced that the information was in the control of the claimant, given they could choose agencies who provided transparency or to do the work themselves in-house. In the absence of a breakdown from the claimant, the report fee was significantly reduced to £900 against a claim of £2,916. (Keoghs acted for the defendant.)

And now in CXR v Dome Holdings Limited, Senior Costs Judge Gordon-Saker has gone further as to the level of detail that ought to be provided and the correct process for determining the breakdown of fees by finding that:

  1. The hourly rates charged and hours spent by the medical agency in obtaining the report should be included.
  2. An application for an order for a breakdown should be made before the DA – this has long been Keoghs practice and it is good to see our approach being endorsed by the Senior Costs Judge.

It remains to be seen whether, in the face of regularly being ordered to provide a breakdown, the medical agencies will change their behaviour. If not, the time is ripe for a binding authority on this issue.


Yvonne Booth

Yvonne Booth
Clinical Negligence Costs Lawyer


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