There have been a number of cases recently where the costs of medical agency fees has been in the spotlight and these cases reinforce the need for transparency in relation to the make-up of the medical agency invoices. We have seen a reluctance by medical agencies to disclose a breakdown of their fees and a number of cases have gone to hearing for the court for the court to determine a reasonable and proportionate amount. We have seen the courts agree with our stance that in order consider the reasonable of the sums claimed a breakdown of the medical invoice should be provided detailing the amount received by the expert and a breakdown of the agency fees.
A summary of some of the recent decisions are below:
Hoskin v Northampton General NHS Trust (Manchester CC, 22.05.23)
- Judge: HHJ Bird
- Medical fees: £5400 + VAT consultant in obstetrics and gynaecology; £8775 + VAT cardiologist- £0 recovered
- Summary: The court ordered the experts fees to be produced in default the fees would be assessed at nil.
CXR v Dome Holdings Limited (SCCO 14.08.23)
- Judge: Senior Costs Judge Gordon-Saker
- Summary: Endorsed the decision above in Hoskin and the need for a breakdown adding the breakdown should include hourly rates and hours spent by the agency.
Aminu-Ede v Esure Insurance Company (Central London CC, 08.04.24)
- Judge: HHJ Saggerson
- Medical fees: £2916 inclusive of VAT for pain management report
- Summary: The court ordered that unless a breakdown was provided the medical invoice would be assessed at £900 inclusive of VAT.
JXX v Archibald [2025] EWHC 69 (SCCO 17.01.25)
- Judge: Costs Judge Rowley
- Medical fees: disputed medical fees £120,946 including VAT for experts fees from a total of £253,859.96 including VAT
- Summary: The court ruled that fees in composite invoices will be assessed based on the expert's evidence and the MRO's work if information is provided. If not, the fees will be assessed hypothetically as if there was no MRO involvement.
Smith v Portsmouth Hospital NHS Foundation Trust (Wrexham CC, 02.10.24)
- Judge: DJ Morris
- Medical fees: gynaecologist £6,736.28 and £3,869.06, psychiatrist £3,130.67, pain expert £5,370.67 all including VAT
- Summary: The court found the breakdown provided by the medical agency unclear regarding referral commission, finance, and waiver fees. Only the cost of the expert fees were allowed.
Final Thoughts
DWF consider that the issue of experts' fees needs further reform. It's anomalous that we have fixed costs for claims up to £100,000 but there hasn’t been any reform in this area to help control reasonable and proportionate costs of fees. Fixing/capping the costs of some of the common types of experts' fees alongside a rule change requiring breakdowns to be given to the paying party is needed.
DWF are working with FOIL to lobby for change as part of the Government's review of the fixed costs extension which is likely to start towards the end of this year.
For further information, contact Nicola Critchley
