Beardmore v Lancashire County Council (2019)
Medical agency fees are often contentious items during cost litigation and we now have a new case on the block, Beardmore v Lancashire County Council (2019). This is not a binding authority as it was a first instance appeal decision given by a Circuit Judge (His Honour Judge Wood QC), nonetheless it is guidance to the practitioners out there.
This case was a Public Liability claim which settled for £3,500.00, as such the ‘new’ Fixed Recoverable Costs regime engulfs this matter. The applicable rule regarding the disbursements being CPR 45.29I. The Claimant was seeking costs of obtaining hospital records and general practitioner records of £50.00 and £10.00 plus the £30.00 agency fee, with VAT being added, namely fees of £96.00 and £48.00.
The Defendants refused to pay the agency element of these fees, the issue being that by using the medical agency to obtain the medical records the Claimant Solicitors could avoid some work required on a Fixed Recoverable Costs claim by a third party undertaking the task.
However, it is interesting to note that under CPR 45.29I (2A) (c), the CPR allows for £30.00 to be charged for obtaining medical records in addition to the direct cost for the medical records. However, this provision of the rules applies directly to soft tissue injury claims started under the RTA Protocol.
Within the Judgement of HHJ Wood QC, it confirmed that although there was a mini back catalogue of case law on recoverability of medical agency fees so to speak, there was no case law or authority which discussed this case and that the matter was progressing into “virgin territory”.
HHJ Wood QC came to a decision that the fees of the medical agency, were recoverable
“it seems to me that I should decide as a matter of principle whether the judge was wrong in law to regard herself as restricted by the wording of CPR 45.29I subparagraphs (2) (a) and (2A) to disallow an element in the disbursements for the agency costs. If I do come to that conclusion, clearly she has unlawfully fettered her discretion in making the assessment as to the reasonable and proportionate amount which should be allowed, and I can substitute my own decision on an appropriate assessment.”
“My conclusion, in the circumstances, is that CPR 45.29I (2) allows for the recovery of a medical agency fee in this public liability case as a disbursement, and it is not excluded by the specific reference to the maximum recovery for the medical agency fee in RTA claims”
“the appropriate measure for the disbursement recovery is the reasonable and proportionate cost of obtaining the medical records. In this respect, the learned district judge misdirected herself and should have carried out this exercise by reference to the fee claimed. What would be a reasonable and proportionate disbursement?”
HHJ Wood QC also made an interesting point regarding policy, and he put on the record “However, if as a matter of policy the rule makers believe that it is appropriate to make the fixed costs regime more restrictive and to exclude agency fee recovery then a simple rule change can be introduced”, as such it will be interesting to see whether the Civil Procedural Rule Committee review this issue in their coming meeting, my guess would be that they do not.
In my view and that of MRN, this is a sensible decision which no doubt will be well received by Claimant Personal Injury practitioners especially with the already restrictive Fixed Recoverable Costs and the plans in the pipeline to expand the concept of Fixed Costs to higher value matters and further types of claims.
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