Breakdown of medical agency fees goes to appeal- concerns for access to justice are raised
The recent County Court costs decision of Northampton General Hospital NHS Trust v Luke Hoskin (administrator of the estate of Pippa Hoskin deceased) 22 May 2023, heard on Appeal by HHJ Bird, has raised a few eyebrows amongst our Costs Lawyers.
The case concerns a dispute over a Claimant’s claim for the fee of a medical reporting agency, or MRO, (Premex Services Ltd) in which the Defendant’s solicitors had asked the Claimant for an explanation of how much of the claimed fee related to the individual medical report and how much related to the services provided by Premex. The request for a breakdown was refused with the Claimant arguing that the invoiced amount was both reasonable and proportionate.
The Appeal proceeded on a single issue:
“…is a receiving party required to provide a breakdown in its bill 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?
If the receiving party is required to provide a breakdown but (as here) has failed to do so, then it seems to me that a Judge asked to make an order requiring the receiving party to provide the breakdown should do so.”
Allowing the Appeal by the Defendant, HHJ 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.
Once this conclusion is reached, in my view it follows that the appeal must be allowed. The Deputy District Judge was in my view wrong to refuse the order sought. If the paying party is entitled to receive the breakdown (as I have found), as a general rule it is entitled to an order vindicating that right. The court should manage its proceedings in a way that facilitates the just disposal of any matter it has to decide. Here, making the order would have facilitated that aim by ensuring that the court had before it all relevant and necessary information needed to conduct the detailed assessment. It was not suggested that it would be difficult, let alone disproportionate to provide the breakdown so that no reason to depart from the general rule was advanced. By refusing the order, the Deputy Judge left the Judge who would conduct the detailed assessment without the information they needed.
I am satisfied that an order ought to be made. I will require the receiving party to provide a breakdown between the Premex costs and the expert costs and to provide copies of the experts’ fee notes.”
We understand the Claimant will lodge an application for permission to appeal with the Court of Appeal shortly. Whilst it might be considered helpful if a fee note details the work done, (e.g. how long the consultation took, the time taken to look at medical records and to draft the report etc), there is nothing in the CPR or PDs to compel a party to go further.
As such, this case could be seen as a fishing exercise into the confidential commercial business arrangements between Premex and its experts. It may even open the door to an examination of the possible commercial elements of agency fees that relate to the fact that payment of many such fees is deferred until the conclusion of cases; a dimension that often means that without a deferred element, many Claimants would not be able to pursue claims at all. This, of course, raises fundamental issues concerning access to justice.
If permission for a second appeal is given, the Claimant’s case may focus on whether a party can be ordered to disclose a document or information which is not in their possession or owned by them (the information being in the possession of Premex who is not a party to the litigation) absent a non-party application for disclosure.
The Claimant may also seek to argue that, whilst the court can direct that a receiving party produce any document to the court which in the opinion of the court, is necessary to enable the court to reach a decision (in this case it would be the agreement between the expert and Premex), what the court cannot do, is to direct, as has been done here, that that document be disclosed to the other side -see Pamplin v Express Newspapers [1985] 1 WLR 689, and to assess the fee at nil, in default.
Instead, the Claimant may argue that the receiving party can be put to their election, as to whether to either produce the document to the court, or alternatively, offer to prove the fact of which the document is evidence of by some other means- see South Coast Shipping Co Ltd v Havant Borough Council [2002] 1 Costs LR 98 (at [12(5)], for example by calling oral evidence.
It is yet to be seen if this case will ultimately open up a can of worms that ends up dealing with broader access to justice issue that go beyond simply the production of a breakdown of a medical agency fee.
The judgement can be found here.
