Woollard v Fowler  EWCH 90051 (Costs)
A decision by Senior Costs Judge Hurst now allows the recovery of medical agency fees as a disbursement in cases covered by the predictive costs regime.
In December 2005 Master Seager-Berry decided in Woollard v Fowler to disallow certain fees charged by Mobile Doctors Limited for obtaining medical reports and medical records in a claim under the fixed costs scheme for road traffic accidents. This decision created a great deal of interest and caused a large amount of concern among medical agencies. However this decision has now been overturned on appeal.
Senior Costs Judge Hurst sat as a Recorder in the Weston Super Mare County Court on 12 April 2006 when he heard the appeal of Master Seager-Berry's decision. In the appealed judgment it had been decided that work done by a medical agency that would otherwise have been done by the solicitor, could not be claimed as a disbursement as it should be subject to the profit costs ceiling as prescribed in CPR 45.9. The medical agency fees were therefore disallowed.
In the judgment dated 24 May 2006 that overturned this decision, Senior Costs Judge Hurst decided that the fixed costs regime did not affect the established custom that reasonable and proportionate medical agency fees are recoverable disbursements in accordance with CPR 45.10 (2). The agency fees were therefore allowed.
Whilst Claimant lawyers and medical agencies greeted the decision as a success, by bringing to end the doubts regarding the recovery of medical agency fees, it has been treated with scepticism by Defendant lawyers who are concerned that it will lead to the recovery of fees for other work sub-contacted to third parties. This would make the predictability of the Claimant’s costs far less certain. If the Defendant lawyers’ concerns are correct we will no doubt see a rise in the number of third party services offered to lawyers in RTA cases.
But does this decision affect other agency fees? For example it is often considered reasonable and proportionate for enquiry agents to attend witnesses to take evidence rather than a solicitor. Are those fees recoverable as a disbursement under CPR 45.10 even though the work would normally be undertaken by a solicitor and subject to the profit costs ceiling? So long as the fee is reasonable and proportionate it must be recoverable as a disbursement, but is that really what was intended when the predictive costs regime was introduced? It is doubtful that we have heard the last from this decision!
Please use the link attached to the case citation above to see the Judgment.