The recent case of JXX v Archibald provided the latest update on the (increasingly frequent) topic of whether there should be a breakdown of agency fees when instructing experts.
As the CEO of a medical-legal agency who instruct on thousands of expert reports each year, the topic has come up increasingly frequently in conversation over the past 12 months, and I thought the perspective of an agency might be an interesting one to explore.
First, a whistlestop history lesson on the emergencies of Medical Reporting Organisations (MROs).
When where agencies born?
As with so many things, the advent of the internet played a crucial part in the establishment of medical-legal agencies. Due to restrictions on advertising before 1986, solicitors relied largely on word of mouth to generate business. They would, therefore, only require a pool of local experts whom they would instruct directly.
The combination of this restriction lifting and the internet coming to prominence meant that firms could suddenly advertise for work in a much wider range of areas, hence the need for agencies who could provide access to experts in these locations.
This context is important as it feeds into one of the key points in the ongoing debate – namely that agency fees should not ‘exceed the reasonable and proportionate cost of the work if it had been done by the solicitors’ (Stringer v Copley in 2002).
In the scenario described above, access to experts was no doubt the primary time & cost saver for solicitors who would have very few ways by which to access experts in areas outside of their locality.
Whilst it’s the case that this is much easier in 2025 than in 1986, there is still a significant amount of work undertaken to build & maintain a panel of high-quality experts, in addition to the time spent instructing and liaising with experts and managing the overall complexities of cases that run for years.
Recent developments
Whilst the debate around agency fees has been ongoing for a long time, the past couple of years have seen a proliferation in cases, often with differing takes on the breakdown of agency fees. A few of these are highlighted below.
April 2023 - Sephton v Anchor Hanover Group, the court concluded that a fee for an MRI was ‘reasonable and proportionate’ and so was recoverable without knowing the apportionment between agency and expert.
March 2024 - Amini-Edu -v- Esure Insurance Company Ltd it was determined that agency fees should be disclosed and that “despite protestations to the contrary, medical agencies should be able to provide at least sufficient indicative information as to the proportion of the medical invoice that reflects the true value of their commission”.
June 2024 - Craven -v- Henley, in relation to a composite fee of £750 it was stated that “even if it was all the doctor’s fee, I am satisfied that £750 would be a reasonable and proportionate fee for this report” and so no breakdown was required. However, “if the costs claimed were something in the order of £10,000 or more, I might very well take a different decision.”
July 2024 - Chaudry -v- AXA Insurance Plc it was said that “the court is entitled to require transparency from those whose fees form part of claimed and potentially recoverable costs”
And most recently in January 2025 we have a further update in JXX v Archibald. Exactly how this interpretation plays out only time will tell, but Judge Rowley stated that the claimant could choose between having costs assessed either on the basis that the breakdown is provided and assessment made on both the work of the expert and the MRO, or that no breakdown is provided, and assessment is made on the hypothetical basis that no MRO was involved.
This leans on the Craven v Henley decision in positing that there are situations where the composite fee would be considered proportionate in and of itself, whilst at the same time giving Claimants the option to provide a breakdown where they feel it might add extra weight.
Where does this leave things?
This will no doubt continue to rumble on. For me, it’s clear that there is a balancing act. On the one hand, it is, at best, unrealistic and, at worst, a waste of time to demand every fee is broken down.
On the other, agencies should clearly be a cost-efficient way to outsource specialist skills and to help speed up workflow & remove administrative burden, and transparency should be a key criterion of a successful relationship between MRO and solicitor. At QMGS we make sure that every firm (and expert, should they ask) we work with knows exactly what we are charging from the outset so that when they receive the report they already know the breakdown. This uplift is fixed & reasonable, and we are always comfortable justifying that it costs less (often significantly) than if done by a solicitor.
Additionally, we employ doctors, midwives & nurses who all can provide ‘value-add’ to the firms we work with through pro-bono advice, as well as training for the firms we work with. Whilst it’s not possible to attribute this directly to the fee breakdown, it’s a benefit that should not be ignored.
That said, I know smarter people than me who think this is a slippery slope and could simply open up a race to the bottom, devaluing the service of agencies and, by extension, experts.
I certainly don’t have the answers but am fascinated to see how things unfold this year and always keen to hear perspectives on this, so please don’t hesitate to get in touch with me if you’d like to discuss!
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