PD 47 para.5.2(c) requires a party commencing detailed assessment proceedings to serve with the Bill of Costs “copies of the fee notes of … any expert in respect of fees claimed in the bill”.
Many solicitors use medical agencies to obtain medical reports. The invoices provided by such agencies rarely provide any breakdown between the actual cost of the medical expert and the charges of the medical agency.
More to the point, do these invoices comply with the rules?
As per HHJ Bird in Northampton General Hospital NHS Trust v Hoskin (County Court at Manchester, 22/5/23):
“In my judgment the language of PD 47 is very clear and admits of no doubt. Paragraph 5.2 applies if the receiving party is asking the paying party to pay for the cost of an expert. If that is the case, then the receiving party is required to provide a copy of the expert’s fee note(s). The effect is that the precise cost charged by the expert (recorded in the fee note) is known.
If, as here, the paying party seeks to recover the fees of a medical reporting organisation in addition, it seems to me the same points apply. If the paying party (and potentially the court) is to make a decision about MRO fees it needs to understand what they are.
I am satisfied that it is clear that PD 47 imposes a duty on the receiving party to provide the fee note of any expert instructed and, where such costs are claimed details of the costs of any MRO. Premex is not an expert. Its invoice cannot be described in any sensible way as a fee note and is in any event not the fee note of the expert.”
This case itself was concerned with an application by the Defendant paying party for a breakdown of an invoice from the medical agency to show how much related to the medical expert’s fees and how much related to the services provided by medical agency. The judge as first instance refused the application. HHJ Bird allowed the appeal and substituted an order that the receiving party was to provide a breakdown and to provide copies of the experts’ fee notes. That was to be done within 14 days of the date of the order and in default of compliance the fees were be assessed at zero.
Given the nature of the application/appeal, this was a sensible decision. However, surely the default position should be that where a party fails to comply with PD 47 para.5.2(c) the fee is simply disallowed. It should not require an application from the paying party to secure compliance. Service of the actual fee note of the expert is the evidential requirement that PD 47 para.5.2(c) imposes. (The rule makers could, but did not, have adopted the approach that the Bailey presumption would suffice when it came to disbursements and no evidence in support was required.) A failure to meet this requirement means the evidential burden has not been met.