The issue of agency fees in FRC matters arises again, with Judge Phillips determining that medical agency fees can be recovered as a disbursement in such claim. This is contrary to the most-recent decision on the point from Powles v Hemmings [2021] where District Judge Akers determined that the cost of the medical agency fee was already subsumed within the fixed costs following the decision in Aldred v Chan [2019].

The Application for Determination

In this case; the Claimant had made an application to seek the court’s determination as to the appropriate fees to allow for three medical reports, and the costs of court fees and of this application. The Court was effectively asked to interpret the working of CPR 45.19 (2) with consideration of the implications of that determination given the lack of binding authority on the point. 


The claim followed an RTA in 2015 and submitted via the portal; liability was admitted and medical evidence obtained with an offer of settlement just below £16,500 accepted in December 2021. Costs were agreed in addition. At the time of the hearing, all costs were agreed save for; 

  • Maxillofacial Report: £1250 plus VAT
  • Updated Maxillofacial Report: £1255 plus VAT
  • Psychology Report: £725 plus VAT
  • Court Fee: £275
  • Court Fee: £255

The position was that the Defendant did not agree the costs of the reports given the lack of clarity between the report fee and any included agency fees; this is on the basis that the Defendant was of the view that the agency fees were non-recoverable with the same falling within the fixed fee prescribed; their alternative position was that if recoverable, then only to a ‘reasonable and proportionate’ value. The Defendant therefore argued that the breakdown was required. The latter of these arguments was not pursued at the hearing on the basis that to seek to challenge the agents fee, would have required brining them into proceedings. The Claimant’s position on breakdown, was that the reports were already available and a reasonable and proportionate sum for the same could be awarded accordingly. 

  • For the Claimant

The Claimant sought to rely on the ‘plain and ordinary meaning’ of CPR 45.19(2) (a); and thus the ‘cost of obtaining any medical report will include not only the clinicians fee, but any charge raised by the medical agency for the services they have provided.’ Further argument was advanced in support of the use of the word ‘obtaining’ and ‘cost of obtaining’ with reference to Section 2 of CPR 45 and this applying to medical disbursement recovery and relied further on Woolard v Fowler [2006] (EWCH) 90051 with regard to the terminology used. In addition, persuasive argument was made regarding the MRO agreement (2010) and that the use of medical agencies have become ‘common practice…with the agency fees forming part of the disbursement recovered inter-parties’.

Additional arguments were advanced around CPR 45.19(2A) and a cap which is ‘consistent with the aim of limiting costs in such claims’ and the case of Beardmore v Lancashire [2019] where it was determined that agency costs were recoverable as disbursements. The Claimant’s Counsel sought to dismiss the Defendant’s reliance upon Aldred v Chan on the simply basis that it did not apply to medical agency fees; the subsequent case of Powles v Hemming was, in the view of Claimant’s Counsel, ‘wrongly decided’. 

In respect of the Court fees sought, the Claimant relied upon CPR 45.19(2)(c).

The Claimant further sought, in the alternative, the disbursements be allowed as claimed on the basis of them being reasonable and proportionate. 

  • For the Defendant

The Defendant dismissed Woolard v Fowler on the basis that is pre-dated CPR 45 and relied upon Aldred v Chan as superseding comments of Lord Justice Jackson. With regard to the MRO argument, the Defendant submitted that the agreement did not apply to soft tissue injury claims and could not comment on how wide spread take up had been. The Defendant maintained that with reference to CPR 45.18 and 45.19, doctors fees only were recoverable and other fees were ‘subsumed within the fixed costs’. Fundamentally, the Defendant relied on the absence of any mention of agency fees with CPR 45 and on that basis, they were not a recoverable disbursement.

In relation to a reasonable fee for the expert reports alone, the Defendant suggested £420 for each Maxillofacial report given this was the fee allowed for an Orthopaedic report. 

  • Conclusion

It was determined that the medical agency fees are recoverable as a disbursement; but a reasonable and proportionate sum needed to be assessed. DJ Phillips concluded; ‘I come to the conclusion that when drafting this particular Rule, “the cost of obtaining a medical report” does include the cost of any medical agency fees incurred in the obtaining of such report’.

Reliance was placed on Woolard v Fowler with reference specifically to the comment within that judgment; ‘there is nothing in the protocol that discourages the use of medical agencies by solicitors’ (para 12). DJ Phillips accepted Woolard pre-dated CPR 45.19 and proceeded to consider this in conjunction with more recent development, notably the Report of LJ Jackson, commenting that the Rule Committee would have been well aware of the report when approving CPR 45.19.

In respect of the MRO agreement advanced by the Claimant, and accepted that signing up to the same (as the Defendant had done), ‘demonstrate[s an almost invariable practice of medical agency fees being paid as a disbursement’.

DJ Phillips, in considering of Beardmore, was accepting of the persuasiveness of the case, however did not seek to rely on the decision given it’s inapplicability to this case. 

Finally, the most recent case of Powles v Hemmings was considered; it was commented that many of the arguments raised at this hearing, were not advanced in Powles. The former hearing seemed to hang on arguments following Beardmore for the Claimant, and Aldred for the Defendant ultimately determining agency fees were not a recoverable disbursement. 

The Judge was critical of there being no breakdown of the expert fee and agency fees, and further suggested that it would assist if the experts’ were to provide a breakdown of their time spent, e.g. Reviewing records, attending the Claimant, writing the report. Reference was made to CPR 44.3 and 44.4 for the basis of the amounts awarded.

With regard to the court fees, no award was made for the initial fee on the basis that it was evident there was no order as to costs. In relation to the application, the Claimant’s argument under CPR 45.19(2)(c) was accepted and costs awarded.

For any further advice please contact the office to speak to one of our experts, or contact Kate Benn at 01480 220808

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