In the recent case of JXX v Archibald [2025] EWHC 69 (SCCO) Costs Judge Rowley considered whether a breakdown of an expert’s fee is required when the expert is instructed by an agency.
The Defendant applied for a declaration that the Claimant’s bill of costs was non-compliant with the CPR and requested that the detailed assessment proceedings were stayed until the Claimant filed and served copies of the experts’ fee notes and separate breakdowns of the costs of the medical agency and experts. The application also sought that the bill of costs was to be struck out in its entirety or the claims that relate to medical evidence were to be assessed at zero.
This led to the question – is the Claimant obligated to provide a breakdown of the expert fee note to show the percentage of the fee being taken by the medical expert agency?
Background information
A Consultant Ophthalmologist was instructed by the Claimant, directly in the first instance and then through the medical agency for further evidence; with fees amounting to around £120,000. Medical and Professional Services Limited (‘MAPS’) was the agency used in this case and the Defendant’s noticed a ‘stark and shocking’ difference in the fees of the expert from when they were directly instructed, compared to when they were instructed via MAPS. The invoices provided by the expert to MAPS had been increased by approximately 60%
In the Defendant’s Points of Dispute, they stated that the “Claimant was accordingly required to file and serve a breakdown in respect of each, and every fee rendered by MAPS… and the Court can arrive at a reasonable and proportionate allowance. […] Pending this further information the Defendant puts in dispute each and every fee charged by MAPS and declines to make any offer for any such fees at this time.”
The Claimant responded to this point, in an attempt to justify their use of MAPS and submitted that all expert fees were “reasonable and proportionate on a global basis, particularly taking into account the specialist skill, knowledge and expertise of the experts involved.” The Claimant also requested a breakdown from MAPS.
The Claimant’s argument against MAPS’ approach
The Claimant argued that MAPS was instructed to prepare a medical report and to provide all relevant services, and the fee claimed was one which the Claimant was liable to pay and was appropriately invoiced and vouched for on the assessment.
Unhelpfully, MAPS declined to provide a breakdown of the expert’s fees, and the managing director claimed it was not part of MAPS’ standard policy to supply such information as it was regarded as being “unimportant and misleading when considering the overall reasonable cost of obtaining the medical expert evidence … as well as being confidential”.
Cost Judge Rowley stated that “the approach of MAPS has left the Claimant in something of a bind” on the basis that MAPS’ involvement required a ‘slight’ increase in the fee but would result in a ‘significant’ drop in the Solicitor’s own charges. The extent of MAPS’ charges was to be justified by showing the work it has done, but as there was no evidence provided, the position was not expected to change.
He also goes onto say that “if the MRO decides not to justify its charged by way of evidence, it seems to me to be likely that the composite fee would be reduced on assessment.” A justification of the charges is based on a comparison of the work done by the third party and if it would be cheaper if it was carried out by the Claimant’s solicitor.
This comparison means looking at whether it was reasonable for the report (or similar work product) to be produced by the expert without any additional quasi-legal work being carried out.
Conclusion
There are two options a Claimant could take when faced with a composite invoice; they could pursue assessment:
- on the basis of the expert’s evidence and the agency work in obtaining that evidence if the information sought by the Defendant is provided; or
- on the hypothetical basis that there has been no MAPS involvement, and the fees claimed are solely for the expert’s evidence, if no such information is provided.
The Defendant would then be entitled to produce and rely on comparative evidence, dependant on the approach taken.
On a practical level, when contemplating instructing a medical agency, calculating and comparing the additional time of the lawyer in the event of a direct instruction versus the costs of the agency, may be useful when determining the overall costs benefit.
Practitioners may opt to instruct experts directly and avoid using medical agencies altogether.
This is an example of yet another case in favour of evidencing the breakdown.
Ujjaini Mistry is a Paralegal in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com
