JXX v Scott Archibald

Fees charged by a medical reporting organisation or other intermediary are recoverable only where the receiving party demonstrates that the composite charge is reasonable and proportionate. The relevant comparison is with the cost of the work that the solicitors would otherwise have undertaken, including the organisation’s ancillary or quasi-legal work.

Where the organisation declines to disclose a breakdown of the expert’s fee and its own charges, the court may assess the invoice on the basis that it relates only to the expert evidence. The receiving party should be given an election where the sums are significant and the issue has wider importance: it may provide the requested information and have the whole service assessed, or accept assessment on the expert-evidence-only basis.

The claimant, a protected party, settled a personal injury claim and commenced detailed assessment proceedings. His bill included substantial fees for expert evidence obtained through Medical and Professional Services Limited, a medical reporting organisation. The defendant challenged the composite invoices and sought disclosure of the experts’ fee notes and separate breakdowns of the organisation’s charges, with sanctions if the information was not provided.

The central issue was whether the fees could be assessed as invoices rendered by the organisation, without separating the expert’s remuneration from the organisation’s work, and what consequence should follow from the absence of that information.

1. Recoverability and assessment of intermediary charges. The established approach in Stringer v Copley, Woollard v Fowler [2005] EWHC 90051 (Costs) and Northampton General Hospital NHS Trust v Hoskin was that an organisation’s charges were recoverable only if shown not to exceed the reasonable and proportionate cost of work which the solicitors would otherwise have performed. The reasoning in CXR v Dome Holdings Ltd supported the same conclusion.
2. The claimant’s submission that the MAPS invoice was simply the fee which he was liable to pay did not answer the assessment issue. The organisation’s stated services included quasi-legal and administrative work. That work was the justification for an additional charge, so its value and cost had to be evidenced.
3. In the absence of a breakdown, the invoices could be judged only by reference to the expert evidence or similar work product. They could not be assessed on the assumption that they also included justified MRO work. The burden remained on the receiving party to evidence the claim. The defendant could produce comparative evidence of reasonable expert fees, although no compulsory evidential requirement was imposed.
4. Given the significant sums and the wider importance of the issue, the appropriate disposal was to put the claimant to an election. If the information sought in the defendant’s draft order was provided, the fees would be assessed by reference to both the expert evidence and the MRO work. If it was not provided, they would be assessed hypothetically as fees solely for the expert evidence, as if MAPS had not been involved. Expert evidence included conferences and other work in addition to reports and trial attendance. The claimant was to be allowed time to elect, after which the defendant could provide comparative evidence.

The judgment does not record an appellate history for this dispute.