The debate over the level of recoverable fee for a medical agency not signed up to the Medical Reporting Organisation Agreement (MROA) is set to rumble on after contradictory county court rulings.
Though in Liverpool recently a £350 fee was reduced to £200 in line with the MROA, a judge in Macclesfield has allowed £300 for a report.
The defendant insurer in Kavanagh v Powell was NFU Mutual and the court was told that other insurers have similar cases in the pipeline.
In Kavanagh, the claimant argued that the MROA fee was not relevant and mere reference to MROA rates does not render the fee claimed as unreasonable.
According to Paul Turner-Mitchell of costs drafting firm E&N Services, who acted for the claimant in the part 8 proceedings on behalf of Thorneycroft Solicitors, among the other arguments were that the defendant chose not to object to the instruction of the medical expert in question and did not produce any evidence of comparable fees for GPs and/or medical agencies not a party to MROA.
Further, he said that the British Medical Association recommended fee for a written report without an examination, based upon 30 minutes work, is £124.50. This case involved a consultation and examination as well, so it was reasonable to double that fee to take that in account. That would leave approximately £50 for the agency work.
Taylor Rose Solicitors, for the defendant, argued that there was no justification for a higher fee than that under the MROA and that allowing “such high rates will wholly undermine the MROA and its purpose. It will leave the medical agency signatories to the MROA with little commercial choice but to decline to sign up to the MROA in future cases”.
The district judge allowed the medical report fee as claimed, at £300 plus VAT.
Mr Turner-Mitchell said: “It is far too a simplistic approach to infer MROA rates on their own demonstrate a reasonable fee for non-particapting medical agencies, an approach which is flawed in law.
“For a paying party to be successful they must demonstrate that the fee is unreasonable by producing evidence of comparable agency charges who are similarly not a signatory. In Kavanagh, the claimant demonstrated the fee was reasonable by reference to BMA rates without providing a breakdown.”