Medical agencies and claimant firms have won a points victory in a costs battle in the latest instalment of the long-running dispute over fees.
In the costs judgment JXX v Archibald, the claimants and medical agencies were today found to have been the successful parties overall following the High Court’s decision in March on whether they should have to justify their fees.
Senior Costs Judge Rowley said the insurer defendants had effectively had to ‘write a cheque’ in the claimants’ favour and so should be required to pay the costs of the proceedings, which are estimated to run to at least several hundred thousand pounds.
But the decision, handed down today, may in any case be moot, given that all sides have secured permission to appeal the March ruling. The case is likely to be heard in the Court of Appeal next March. Rowley himself had even said the simplest option would have been to reserve costs decisions until after the appeals, but the claimants insisted on securing a ruling now.
The judge acknowledged the difficulty of trying to settle a costs issue where all sides insisted they had been successful. The claimants and medical agencies had indeed seen off the defendants’ argument that they should have to break down their fees on a case-by-case basis. The court had ruled in March that some evidence was required from agencies about how fees were calculated, but this was only on a macro level rather than a solicitor-style analysis of individual files.
Rowley said the only point on which the court had found in favour of the defendants was that the mark-up on expert fees – effectively the agency’s cut – should be limited to no more than 25%.
In today’s judgment, Rowley summed up the difficulties of his task, saying: ‘All parties contended that they had been successful in these proceedings. This is so, notwithstanding the fact that they have all appealed my decision and, as was pointed out at various points in submissions, appeals are not usually the course of action of a party who consider themselves to be successful in the proceedings.’
Rowley also said he was loath to go over his previous decision in case he unwittingly provided ‘some form of ammunition’ for either party to use in the appeal.
Nevertheless, he concluded that the claimants had walked away with an order in their favour for payment of sums by the defendants which they would not have received but for the pursuit of this litigation.
‘Although they had not succeeded on every issue, they have required the defendants to “write a cheque” in their favour and so fall squarely within the definition of a successful party.’
Commenting on the decision, Madelene Holdsworth, managing director at claimant representative firm Slater and Gordon, said: ‘We are pleased that Senior Costs Judge Rowley has confirmed that the claimants and MROs were clearly the successful parties and awarded the claimants and MROs their costs accordingly.
‘Given that the Senior Costs Judge had sided with the claimants and MROs on the key points of law, this outcome is unsurprising. The defendants’ approach to these claims required the claimants and the MROs to pursue lengthy, complex and costly litigation, so it is entirely right that the resultant costs are borne by the defendants.’
Wayne Brannan, commercial director at medical reporting agency Premex, added: ‘This is undoubtably a significant victory for the claimant team and for Premex in particular, who have been successfully awarded costs in all elements of the claim in which they are a named party to the proceedings.
‘This judgment reinforces the strength of the key legal arguments from the claimants and MROs, and reiterates the importance of the collaborative approach taken as we look to the Court of Appeal hearing scheduled for March 2027.’
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