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Medical Agency Fees are Recoverable as a Disbursement

In the case of Beardmore v Lancashire CC (Liverpool) (Judge Graham Wood QC) 06/02/2019, a Circuit Judge on appeal allowed the claimant to recover medical agency fees in a public liability ("PL") case that had exited the portal, and where the issue of disbursements was covered by fixed costs.

The claimant was injured in a tripping accident and brought a claim against the defendant as the highway authority. The injuries were relatively minor, and negotiations initially began under the pre-action protocol for public liability claims. Liability was not resolved, and the matter fell out of the protocol process and proceeded as a potential claim. The claim eventually settled in the sum of £3500. The claimant was entitled to her costs, which were fixed costs under section IIIA of CPR 45. The vast majority of these costs were not in issue, but the defendant disputed the disbursements claimed for obtaining the medical records.

The medical records had been obtained by a medical agency, the costs claimed as disbursements included the direct costs of obtaining hospital and GP notes, in the sum of £50 and £10 respectively and a profit element on top of that, leading to claims of £96 including VAT in relation to each, or £192 for both. The defendant argued that the recoverable sums should be limited to the direct costs of obtaining the records only.

The defendant's objection to paying the agency fee led the claimant to issue Part 8 costs proceedings, and the disputed matter came before District Judge Wright who held that it was unreasonable to instruct an agency to obtain medical records. She recognised that the rules provide for an agency fee in RTA cases, but they do not specifically provide for one in PL cases and therefore she refused to allow the additional agency fee.

On appeal, HHJ Wood disagreed and concluded that CPR 45.29I (2) allows medical agency fees to be recovered in PL cases as a disbursement, and found that the specific reference to the maximum recovery for the medical agency fee in RTA claims does not exclude payment of such fees in PL cases. In PL cases, the measure for determining an appropriate figure ought to be the reasonable and proportionate cost of obtaining the medical records. In the instant case, HHJ Wood allowed the respective sums of £80 and £40 (incorporating the direct costs for the medical agency fees) plus VAT.

Forbes Comment

Whilst the sums involved are relatively small, it is an issue that has continued to rear its head in low value EL and PL cases. Whilst this is not a binding authority, it does give parties some guidance going forward. Parties agreeing costs will now need to agree a reasonable and proportionate level of agency fee. HHJ Wood remarked by way of guidance that if one set of records cost £10 by way of direct cost; an additional £70 could not be justified on a proportionate basis, however much work was involved. He suggested that it is appropriate to adopt the sum of £30 per set, which is considered as the maximum allowable in an RTA claim.

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