Barber (t/a Barber & Co Solicitors) v Medico Services Ltd

A solicitor who instructs a medico-legal services provider under a contract is liable for the provider’s reasonable fees, including reasonable medical cancellation fees, unless the contract makes payment contingent on the success of the underlying claim. A client-facing notice about recovering a missed-appointment fee does not define the contract between the solicitor and the provider. Damages for breach of contract remain compensatory: the claimant may recover only loss actually sustained and must not obtain a windfall. Where the amount of a reasonable fee or the claimant’s actual liability to medical experts is unresolved, the court should assess quantum rather than award the invoiced total automatically.

Medico Services Limited claimed unpaid fees from a solicitor who had instructed it to arrange medical examinations and reports for personal injury clients. The claim included fees for medical reports, medical records and missed appointments. The solicitor disputed the contractual basis of liability, contending that payment was contingent on successful claims and that cancellation fees were not recoverable.

HHJ Luba QC found a contract and awarded MSL £26,069.13 plus interest, making a total order of £38,860.27. The solicitor appealed on four permitted grounds, concerning contingency, cancellation fees, damages and reasonableness. The central issues were whether the solicitor was contractually liable irrespective of the success of the underlying claims and whether MSL had proved an entitlement to the full sums claimed.

1. Appeal allowed in part. The appellate court could intervene if the lower court’s decision was wrong or unjust because of a serious procedural or other irregularity under Part 52.21 of the Civil Procedure Rules 1998.
2. The instruction letter and the accompanying letter to the medical expert had to be construed in their factual and commercial context. Neither stated that MSL’s fees would be payable only if a claimant succeeded. The reference in the client-facing letter to deducting a missed-appointment fee from compensation did not define the solicitor’s contract with MSL. The solicitor was therefore liable for reasonable cancellation fees, irrespective of the outcome of the underlying claim.
3. The absence of an agreed fee did not prevent recovery. The contract contained an implied term requiring payment of a reasonable fee for the services supplied. The solicitor bore the burden of showing that a disputed medical expert’s fee was unreasonable. What insurers were prepared to pay was relevant background but did not determine contractual reasonableness.
4. The damages award was wrong. Contractual damages are compensatory and cannot provide a gratuitous benefit. MSL could not recover sums representing medical experts’ fees unless it had incurred the loss or remained accountable for it. Awarding the full invoiced amount risked substantially overcompensating MSL, particularly where experts had not pursued payment or any claim against MSL was statute-barred.
5. The solicitor accepted liability for £4,140 plus interest. The remaining invoices were remitted to the County Court for assessment of the damages properly recoverable. The court reserved the form of order and costs.

• County Court: HHJ Luba QC, on 18 July 2019, found a contractual liability and awarded Medico Services Limited £26,069.13 plus interest, ordered in total at £38,860.27.
• High Court (Queen's Bench Division): The appeal was allowed in part. The damages award was substantially reduced in principle and the remaining quantum issues were remitted to the County Court.