District Judge Kramer, Newcastle upon Tyne County Court, 2 December 2014.
Keoghs acted for the defendant in a case which proceeded to an oral Stage 3 hearing for assessment of damages under the Pre-Action Protocol for Low Value Personal Injury Claims in road traffic accidents.
Following the assessment of damages the court was asked to assess costs to include additional fees of the medical agency.
Winns solicitors acted for the claimant and instructed OnMedical Ltd to provide medical evidence on the claimant’s injuries.
The partners of Winns solicitors are the owners and directors of OnMedical Ltd.
OnMedical provided Winns with an experts report and they sought to recover the expert’s fee together with the following additional fees as disbursements:
The claimant advised that the fee for a triage assessment is the fee for an assessment by OnMedical Ltd to see whether the claimant needs to be examined by an appropriate expert.
Where OnMedical conclude that the claimant needs to be seen by an expert then the notes are obtained, copied and sent with the instructions to the expert.
The administration fee is a fee for obtaining the records which are copied to the expert.
The claimant argued that the fees fell within the meaning of CPR 45.19(2):
The defendant disputed the fees arguing that the triage assessment notes had not been disclosed, were not disbursements under CPR 45.19 and were not recoverable from the defendant.
The court questioned whether the triage notes were medical records and disallowed the administration fee, finding that the triage notes had not been obtained.
District Judge Kramer said,
“I cannot really see how OnMedical Ltd could both generate the triage notes and then charge for obtaining it from themselves; this is not obtaining records from some third party.”
The court disallowed the copying charges holding that they did not fall within the ambit of CPR 45.19 and were not recoverable from the defendant.
The court then considered whether the triage fee can be regarded as a disbursement arising from a particular feature of the case under CPR 45.19 (2)(e).
In a strongly worded judgment, the court disallowed the triage fee finding that it had arisen because Winns had deliberately introduced a step into the process that was not needed in order to be able to charge for it as a disbursement. District Judge Kramer said,
“This is a disbursement that has arisen because the solicitor has decided that part of the decision making, the advice process which is for the solicitor to give, will be taken by somebody else. They cannot take both the fixed costs and alleviate themselves or abrogate responsibility for taking that decision as to whether or not somebody should be referred to somebody else.”
Claimants’ solicitors are perfectly capable of obtaining instructions on the injury in respect of which the claimant complains.
What they cannot do is delegate that work in order to increase profitability of the fixed fee and then seek to recover an additional fee for it as a disbursement.
This is yet another example where costs have been layered into the compensation process with absolutely no benefit to the end consumer - but with considerable financial benefit to those that advise them.
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