Tag: Medical agency fees

MRO Costs: Determining the Successful Party

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MRO Costs: Determining the Successful Party

In JXX v Archibald [2026] EWHC 630, Senior Costs Judge Rowley gave judgment in an important case concerning the recoverability of Medical Reporting Organisation (“MRO”) fees in personal injury claims. The Defendants challenged the fees claimed by the MROs, while the Claimants sought to recover them as part of their medical disbursements. The dispute therefore focused on the extent to which MRO fees could properly be recovered and the evidence required to justify them. This decision is being appealed to the Court of Appeal, and it is hoped the result will provide definitive guidance for practitioners.

In the meantime, judgment has been given on the consequential issue of costs and, in particular, which party should bear the costs of the MRO-related proceedings (JXX v Archibald [2026] EWHC 2404).

The MRO Dispute

In considering the costs issue, the Judge outlined the key points regarding his previous decision. He had rejected the Defendants’ proposed notion of a “Stringer cap” which limited the fees payable to the MRO to the type of work that would have been undertaken by a solicitor who had instructed the medical expert directly. The Defendants argued that if the MRO produced the information originally envisaged in Stringer v Copley, they would be prepared to pay for such work. However, the Judge considered that the practical effect of the Defendants’ position was that little or nothing would ultimately be recoverable by the MROs. In the earlier judgment Judge Rowley had found that the MRO fees were a disbursement and not limited by comparison with a hypothetical solicitor’s work.

Equally, the Judge had rejected the Claimants’ argument that the fee for producing the medical evidence was a unitary disbursement which did not need to be broken down into any constituent elements but should simply be considered globally as to whether it was reasonable and proportionate. Accordingly, the Claimants were required to provide evidence as to the proportion of the overall fee attributable to the MRO and the methodology used to calculate that figure.

The Successful Party

All parties contended that they had been successful in these proceedings, yet had appealed the decision.

The Judge outlined that the Claimants and MROs had been successful on most of the issues raised between the parties. This was in relation to the Stringer cap issue, administration-type fees and funding costs. The only point that the Judge did not find in favour of the Claimants and MROs was what they described as the 25% cap.

The Judge went on to highlight that the Claimants obtained an order in their favour for payment of sums by the Defendants which they would not otherwise have received, and referred to CPR 44.2 where the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. Therefore, concluding that the Claimants were the successful party.

The position following the 40% reduction in MRO fees

Although the MRO fees were ultimately reduced by approximately 40%, the Judge did not consider this sufficient to make the Claimants the unsuccessful party. While such a reduction could be a significant factor in a conventional detailed assessment and could justify some adjustment to the costs order, it would not ordinarily deprive an otherwise successful party of its costs altogether.

When was the Defendant successful?

The Defendant was successful in relation to the disclosure application and was therefore awarded its costs of that application. The result of the application was to require separation of the MRO fees from the expert’s fees as contended for the Defendant.

In conclusion, the judgment demonstrates that the Court’s assessment of success is a holistic one. Whilst the Defendants were successful in obtaining disclosure and the MRO fees were reduced, the Claimants and MROs were successful overall because they succeeded on most of the key issues and ultimately obtained an order for payment in their favour. Consequently, those individual successes for the Defendants did not alter the overall costs outcome.

Angela Nako is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

Preparing for Fixed Costs reforms: Part 2

Daniel MurrayLeave a comment

In the second part of Clarion’s mini-series aimed at helping litigators prepare for the upcoming fixed costs reforms, we look at some interesting developments since the first part of the mini-series was published in November 2022.

Delay to the implementation of the extension to fixed costs

The biggest development is the announcement by the Ministry of Justice  that the implementation of the new fixed costs regime has been delayed by 6 months until October 2023.

Lord Bellamy announced on 18 November 2022 at the Civil Justice Council’s National Forum on Improving Access to Justice: “Extending FRCs requires an extremely complex set of reforms…”

“I know it hasn’t been an easy task. I know that these reforms have particular implications for housing cases, and I am grateful for the constructive input of housing providers which we continue to consider. 

“Progress has been made, and we hope the rules will be approved in the near future. But we’re also very conscious of how important it is to get this right.  

“That’s why I can today confirm that we’re giving these reforms a little more time… and will implement the extension of FRCs in October 2023, rather than next April as originally planned. We think this will give the sector more time to adjust to the new regime.”

It had previously been announced by Lord Justice Birss (Chairman of the CPRC)  that it was the intention of the committee to have a draft copy of the rules out to the profession  before they were approved. However, difficulties were identified in the minutes of the  committee’s October meeting regarding the drafting of the new rules, which indicated that it was not going to be possible to have the rules drawn in time.

The minutes from the December 2022 CPRC meeting, indicate that there is still an intention to provide the rules to the legal profession in draft form prior to their approval and it may well be the case that there is a copy for us to comment on in the next instalment. 

Further delays to the implementation of fixed costs in housing disrepair cases

Housing disrepair cases were set to become a new area of law covered by the extension. The MOJ announced earlier this month that the implementation of fixed costs in these cases will be subject to a further two-year delay, in addition to the October 2023 extension referenced above.

Resultantly, the earliest these reforms will be in place is October 2025, which takes us beyond the timeline for the next general election and brings into doubt whether the next government  will still have an appetite  to implement the proposals. 

Whilst this is good news for tenants and their Solicitors, the news will ultimately come as a blow to landlords faced with claims in which the legal costs often far exceed the costs of repairs.

Recovery of agency fees under the fixed costs regime

An interesting decision at County Court Level from District Judge Phillips, a Regional Costs Judge, was released in January 2023, which in our opinion has ramifications not only for the current fixed costs regime , but also the extended regime which will come into effect in October 2023. We are grateful to John Meehan of Kenworthy’s chambers for sharing a copy of the judgment with us.

District Judge Phillips, sitting in the County Court at Cardiff, confirmed in Wilkinson-Mulvaney -v- UK Insurance Ltd (19th January 2023), that, as things stand, agency fees are recoverable.

The case arose from a claim for personal injury in a low value RTA. At the costs hearing on 5 January 2023, the Judge dealt with several issues but the key issue in dispute was whether or not medical agency fees  were recoverable in addition to expert fees and any fees incurred obtaining medical records pursuant to CPR 45.19.

The Claimant’s Solicitors had obtained expert evidence via a medical agency and the invoices produced in support did not include a breakdown of the agency fees which were incurred in procuring that evidence. The Defendant argued that the agency fees were not recoverable, and it was only the expert’s fee itself that was recoverable. The Defendants argued that any medical agency cost were subsumed within the fixed costs that were recoverable by the Solicitors.

The Judge distinguished this case from the decision in Aldred v Cham (2019) EWCA Civ 1780, where it was held that Counsel’s advice fees in portal fixed costs cases were subsumed within Solicitor’s fixed costs awards.

The Judge held that the cost of obtaining a medical report, did include the fees of the agency. At paragraph 56 the judge stated: “had the drafters of the Rule and the Rule Committee wanted to limit the fees recoverable to those only paid to the doctor, they could have quite easily made this clear in the Rule, they chose not to do so.”

The Judge also went on to confirm that if he was wrong in determining that the fees were recoverable as a disbursement, then the Court was still able to allow a reasonable sum for medical report fees, taking into account the guidance in CPR 44.3 and CPR 44.4.

Further important comments were made by District Judge Phillips, who indicated that it would be helpful if breakdowns were provided on invoices of the time spent by experts in preparing reports, as well as a breakdown of agency fees.

This latter guidance, in our opinion, could be significant ahead of the extension of the fixed costs regime. As the regime expands to cover cases of greater value, the level of expert fees sought under the fixed costs regime will increase, as will  the number of fixed costs disbursement disputes. This is on the basis that a lot of the cases which will be captured by the regime currently fall under the provisional assessment procedure, in which disbursement disputes are common.

Assuming that no provisions are made within the new rules which preclude the recovery of agency fees, ahead of the extension it is advisable to engage in discussions with agencies to establish whether invoices can be produced which provide a clear breakdown of agency and expert fees, to assist the Court with disputes.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.