Charman v John Reilly (Civil Engineering) Ltd

(2013) CC (Liverpool) (DJ Woodburn) 22.05.13

Medical agencies fees: Court guidance - responsibility of solicitor unchanged

The Facts

Solicitors who delegated the task of obtaining medical reports to medical agencies did not absolve themselves of the responsibility to assist the court to ascertain whether the costs incurred were reasonable and proporti onate.

The claimants were involved in road traffi c accidents leading to claims for comparati vely modest damages (valued between £1,000 and £10,000). The solicitors employed a medical agency to obtain the necessary expert medical reports. The solicitors included the costs of the reports, and the fees of the agency which had obtained them.

The defendants submitt ed that the court could not determine a reasonable and proporti onate cost for the medical report in the absence of disclosure of a breakdown between the medical expert’s fee

The judge held:

1. solicitors who delegated the task of obtaining medical reports to medical agencies did not absolve themselves of the responsibility to assist the court in the task of ascertaining whether the costs incurred were reasonable and proportionate. Invoices of medical agencies should distinguish between the medical fee and their own charges;

2. In relation to fairly straightforward low value claims, (i) where medical records were not required, (ii) where there was a ready panel of specialists available, and (iii) where standard letters could be used, having regard to the use of a standard process for high-volume work, the court assessed the cost of a reasonably experienced and competent medical agency to carry out the work to obtain the medical report at £50 plus VAT.

Comment

This is an interesting case for a number of reasons. First, being a decision of a relatively low-level of court, it is not the kind of case likely to be reported elsewhere, despite the fact that it gives invaluable guidance as to how courts are grappling, on a day-to-day basis, with costs problems, particularly in light of the Jackson reforms.

A particular feature of this case was the Court’s interest in referral fees. These seem to be everywhere (see the running commentary on the insurance industry, for example). Here, the Court was anxious to ensure that such fees were made clear, so that the Court could see how much the expert evidence had really cost.

Note also the Court in this case comes very close to setting a “tariff” for how much expert medical reports should cost in a low-value case. At one stage, the idea that there could be a “tariff” cost for a “typical” or “unexceptional” case in a given sphere was rejected by the Court of Appeal. Such reticence is no longer the order of the day; “forward guidance” on recoverable costs (in the form of mandatory Costs Budgets for many cases) and the attendant costs capping that comes with that are now very much something the Court gets involved in at an early stage.

The new legal rules governing costs are of course principally a matter for parties’ legal representatives, but experts would be well advised to develop at least some basic familiarity with the new costs landscape. Expert evidence is often one of the most expensive features of litigation, particularly in technical cases. Courts are going to exercise close control over those costs, and Costs Management Orders may well significantly curtail the budget available. The need for experts to liaise with the legal team to establish an accurate budget, and to make sure it is spent wisely (and any likely overrun is notified as 

TEDR Volume & Issue

TEDR Volume: 
18
TEDR Issue: 
2