Medical agency fees recoverable in public liability portal cases but should they be?

Beardmore v Lancashire County Council [06.02.19]

The court have confirmed that medical agency fees can be recoverable in public liability cases. This is despite the rules being silent on this point, and the clear attempts by some claimant solicitors to use disbursements as a way to improve their profits and game the system. There is some hope however, as recoverability is not guaranteed, as the disbursement fee must be reasonable and proportionate.

Background

The claimant suffered relatively minor injuries following a tripping accident in March 2016. The matter started within the Claims Portal (Portal) pursuant to the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims. Liability was initially disputed and so the matter dropped out of the Portal and proceedings were issued. The claim ultimately settled, although a dispute arose over the disbursement for obtaining medical records.

Medical records had been obtained by a company known as Target, also involved in commissioning the medical report, and to which the claimant solicitors had a financial interest in. Disbursements were claimed for both hospital and GP records, at £60, which went directly to the medical institution, plus an agency fee payable to Target at £192. The defendant did not agree to the payment of the agency fee, arguing that the recoverable sums should be limited to the costs payable to the medical institutions.

At first instance, the court agreed with the defendant by asserting that it was unreasonable to instruct agencies to obtain medical records. The court went further in confirming that whilst the rules for road traffic accident (RTA) cases allow for agency fees, there is no equivalent rule for public liability (PL) and employers' liability (EL) matters and therefore the medical agency fees were unrecoverable. The claimant appealed.

The decision

The court overturned the decision at first instance, asserting that recovery of medical agency fees was allowed but was reduced to £60 (£30 each for GP and hospital records), in line with the maximum allowable in an RTA claim.

In coming to their decision, the court confirmed that whilst the rules allow for a specific agency fee as a disbursement in RTA claims, it did not follow that the same fee was therefore not recoverable in PL claims, simply by virtue of the rules silence on this point:

if the rule drafters had intended to exclude EL/PL claims there would have been clear provision made for this.

Comment

This case has the effect that agency fees for the request of medical records is recoverable as a disbursement on top of the normal fixed costs in public liability claims, provided the fee is reasonable and proportionate. No doubt, claimants will also seek to rely on this judgment, to recover agency fees in EL and travel sickness Portal claims.

Whilst the court did not want to be drawn into criticising the use of medical agencies, even those closely connected with bulk claims solicitors, they did allude to the ever-creative ways of claimant solicitors to maximise on costs. The ‘adding on’ of disbursements, where there is a clear financial interest, is certainly one such way and so this decision is frustrating.

It seems clear that the way to tackle this would be a contrary decision by a higher court. However, to fill the gap made by the silence within the current EL/PL rules and to hinder unscrupulous tactics, would need a rule change to make the fixed cost regime more restrictive, by expressly excluding the recoverability of such fees.

This case review was co-authored by Amy-Marie Wilson, Trainee Solicitor, London.

Read other items in Personal Injury Brief - June 2019

Related items: