Deputy District Judge Akers, sitting in the County Court at St. Helens, has given a judgment in a fixed costs case, Powles v Hemmings F20YM309 (23rd April 2021) that cut the costs claimed in respect of medical evidence by the Claimant by more than half.
The Claimant and the Defendant had resolved most of the issues between them, the Court identifying that:
“the sole issue for the court to determine today is whether or not agency fees attached or claimed as part and parcel of an overall claim for a psychological report sought in this case, in the sum of £900 inclusive of VAT, are recoverable in this case.”
On being presented with the claim for £900 for the psychological report, the Defendant sought a breakdown of how that figure had been arrived at. The Claimant produced a document providing the breakdown.
“The psychological report itself is claimed as invoiced at £900 inclusive of VAT. The defendant requested a breakdown as to how that £900 was arrived at. That breakdown document is before the court and I see from that, that £350 represents the fee for consultation, examination and production of the actual report. The remaining £400 goes to items such as issuing a consent form; chasing and retrieving the completed form; issuing an instruction letter and supporting details to the expert; quality checking the medical report before sending to claimant representatives; collection and query resolution with a costs draftsman and third parties; considering claimant’s expert’s dates of availability and preparing correspondence to a solicitor, and so on…” [DDJ Akers]
The Defendant’s contention was a simple one: the sum claimable for a medical report under the fixed costs regime is set at £350 and all the matters that made up the remainder of the amount claimed were agency fees and, as such, were irrecoverable.
In reaching a decision DDJ Akers carefully considered and then applied the reasoning of the Court of Appeal in Aldred v Cham [2019] EWCA Civ 1780. In Aldred, the issue had been one of the recoverability, as a disbursement, of counsel’s fees in relation to an advice on quantum in an infant settlement approval application. The approach adopted by the Court of Appeal was a simple one: it looked at whether the sum being claimed related to an item of work already allowed for by the fixed costs regime. If it was then it could not be claimed on top of the fixed amount. The Court of Appeal concluded that the work undertaken by counsel was already provided for within the fixed costs and the disbursement was therefore disallowed.
The Defendant's argument was, in effect, that claiming these other items would amount to claiming twice for work which should be claimed within profit costs. This approach found favour with the judge:
“I have heard and the authorities that I have been referred to, for the reasons that I have set out, I find are not recoverable in this case. They are items which, in my judgment, fall fairly and squarely within the analysis of their Lordships in Aldred v Chan as being items which are part and parcel of the fixed recoverable costs within table 6B of CPR 45.29C, so as a consequence, the psychological report in this case will be limited to the figure set out in the claimant’s own breakdown which is £350 plus VAT.”
This very clear decision, entirely supported by the relevant authorities will be welcomed by all defendants and their insurers, albeit the judgment is one of a Deputy District Judge and is not a binding authority for other courts. Where the fixed costs regime applies the rules are clear: the base cost of the medical report is a disbursement which can be claimed but the work peripheral to it, such as the administrative tasks surrounding that report which may have been undertaken by a medical agency in providing that report to a Claimant’s solicitors cannot.
Defendants dealing with claims for costs in any matter covered by the fixed costs regime are well advised to give careful consideration to any sums claimed as disbursements. Any items or parts of items that can be said to relate to work already allowed for need to be weeded out and challenged. If any encouragement to do so is required, Powles should provide it.
For more information or advice, please contact one of our experts in the costs team.
