Claimants in low-value public liability cases are able to recover medical agency fees incurred in obtaining medical records, even though there is no express allowance in the CPR, a circuit judge has ruled.
But His Honour Judge Graham Wood QC in Liverpool County Court capped the amount recoverable as a disbursement at £30, in line with the RTA protocol.
He said that while the case itself related to a “trifling amount of money within the predictable fixed costs regime for low-value personal injury claims, a matter of only tens of pounds”, there were a substantial number of cases affected by the issue and there was no case law directly on it.
Beardmore v Lancashire County Council was a tripping claim that settled for £3,500. Target Medical obtained the claimant’s medical records, for which the direct costs were £50 for the hospital notes and £10 for the GP notes. With a profit element on top, the claimant sought £96 including VAT in relation to each.
The judge noted that the relationship between Target Medical and the claimant’s solicitors – Lancashire firm Scott Rees & Co – was “not clearly stated, although it is believed that there were mutual directorships and the latter had a financial interest”.
The defendant argued that only the direct costs should be recoverable, with the argument centring around the fact that while the RTA protocol makes specific provision the recovery of the medical agency fee as a disbursement of up to £30 on top of the direct costs (CPR 45.29I (2A)(c)), there was no similar provision in the EL/PL protocol.
In an ex tempore judgment at first instance, District Judge Wright said that writing to whomever has medical records was “a very easy thing to do and I think it is unreasonable to instruct the agency to do that”.
She added: “I appreciate that the rules provide for an agency fee in RTA cases, but they do not provide for that in the PL cases and therefore I am not going to allow it in this particular case.”
HHJ Wood disagreed. Whilst the absence of a specific reference gave him “a little cause for concern”, he said there was “equal force in the countervailing argument that if the rule drafters had intended to exclude EL/PL claims, there would have been clear provision made for this”.
He said: “My conclusion, in the circumstances, is that CPR 45.29I(2) allows for the recovery of a medical agency fee in this public liability case as a disbursement, and it is not excluded by the specific reference to the maximum recovery for the medical agency fee in RTA claims.
“In a public liability case, in my judgment, the appropriate measure for the disbursement recovery is the reasonable and proportionate cost of obtaining the medical records.
“In this respect, the learned district judge misdirected herself and should have carried out this exercise by reference to the fee claimed.”
HHJ Wood said the court should not be drawn into criticising the use of medical agencies, even those which are closely connected with “bulk claims solicitors such as the claimant’s solicitors in the present case”.
He explained: “It is the nature of modern litigation, where there are increasing pressures on profit margins and limits of cost recovery for solicitors, to be ever more creative in maximising the return from these claims.
“I can understand why paying parties should be cynical where such a connection exists, and it appears as though it is merely an additional payment to the receiving party solicitors which would not otherwise be recoverable, and the restrictions are being circumvented.
“However, if as a matter of policy the rule makers believe that it is appropriate to make the fixed costs regime more restrictive and to exclude agency fee recovery, then a simple rule change can be introduced.”
But the judge accepted there was a “paucity of evidence” to assist an assessment, because it was not clear how the £96 had been broken down in terms of the work involved.
This was not sufficient reason for excluding recovery, but it was to reduce the amount
“It is plain 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…
“It is more appropriate to adopt the sum which is considered as the maximum allowable in an RTA claim, namely £30 per set…
“Accordingly, I allow the respective sums of £80 and £40 which incorporate the direct costs for the medical agency fees involved in obtaining the identified records. The appropriate VAT can be added to the sums.”
Paul Hughes (instructed by Scott Rees & Co) represented the claimant/appellant, and Kevin Latham (instructed by SPH Costing Services) the defendant/respondent.