Cost News

Avi Dolties

Northampton General Hospital NHS Trust v Hoskin

The main issue to be considered was whether the receiving party was required to provide a breakdown of a medical agency fee.

The substantive claim was settled in 2020 when the Claimant accepted the Defendant’s part 36 offer.

The claim for costs was agreed save for in the region of £14,000 claimed for two medical reports from consultant experts. The invoices for the two fees were issued by Premex Services and served with the bill.

The Court was advised by the Claimant that Premex has a panel of experts and provides reports at a lower cost than those experts would charge if directly instructed by solicitors.

Premex did not comply with the Defendant’s request for a breakdown on the basis the amounts were entirely reasonable and proportionate. In July 2021, Deputy District Judge Harris, sitting as a regional costs judge, refused the Defendant’s application to see details of the expert costs.

The matter proceeded to appeal where the judge, HHJ Bird, said the key question was whether it was permissible for the receiving party to submit a bill which simply includes the fee charged by the agency to provide a report. The Claimant continued to submit that there was no such requirement for a breakdown, and that the Premex fee note as presented was sufficient.

The Defendant however pressed the Court to distinguish between agency fees and expert fees. Given that Premex itself was not an expert, it was argued, its invoice could not be regarded as an expert fee note.

Reference was made to PD47 5.2 (c):

5.2 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;

When the fee note provided included an agency fee, it was submitted by the Defendant that this was not complying with the rules as this was not the expert’s fee.

HHJ Bird found that there was a duty on the receiving party to provide the fee note of the expert instructed and elaborate on how much was being retained by the medical agency instructed. HHJ Bird stated that Premex’s invoice ‘cannot be described in any sensible way as a fee note’. He added that it was not difficult, let alone disproportionate, to provide a breakdown of costs.

HHJ Bird added that the language in PD47 was ‘very clear and admits of no doubt.’

Finally, he said that

‘the effect is that the precise cost charged by the expert (recorded in the fee note) is known. Seized of that information the paying party can make a decision about the fee. In doing so it may well consider what the “going rate” for a similar report is. Without the 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.’

He ordered the Claimant to provide a breakdown between the Premex fee and expert costs within 14 days.

The Claimant then lodged an application for permission to appeal with the Court of Appeal on the basis that there is in fact nothing in the CPR or PDs to oblige a party to disclose this information and it was thus simply a fishing exercise into the confidential business arrangements between the medical agency and their experts.

The appeal, which had been set to be heard by the Court of Appeal by September 2023, has recently been dropped.

Ultimately, this does not provide a clear position to the receiving party as to prospect of recoverability of an expert fee, particularly against a backdrop of conflicting cases. The issue of whether agency fee breakdowns are required at assessment will continue with uncertainty.

This also highlights the need to scrutinize quotes for expert fees from agencies, in particular for experts whose fees appear on the high side in comparison to reports obtained from other experts of a similar discipline. It is important that Solicitors do not become complacent and expect that such fees will be recovered on detailed assessment, particularly when requests are frequently being made by paying parties for breakdowns. Perhaps it is time to collectively push back on the quotes provided by the agencies.

Conversely, there is a danger that this will ignite a line of argument for paying parties to demand disclosure on any disbursement incurred. Will a fee note from Counsel for Particulars of Claim at £4,000.00 be enough or will Counsel have to provide a breakdown. Will this effect an Accountant Expert fee – perhaps it can be submitted that an element of the accountant fee will be administrative and not strictly relate to the time expended by the expert?

MRN regularly deal with issues relating to such arguments and can provide you with expert assistance to navigate all your costs and disbursement headaches!