It has long been the case that solicitors involved in PI claims, have instructed agencies to obtain medical notes and records as part of their service when providing medical reports.

It saved the solicitor the time of requesting and obtaining the release of the records, before these are passed on to the nominated medical expert.

The practice of seeking to recover the agency fees recently came under attack from Defendants in the Liverpool County Court in the case of Beardmore v Lancashire CC when HHJ Graham Wood QC was asked to consider the recoverability of agency fees charged for obtaining medical records in employer and public liability cases that have exited the portal process and fall under CPR 45.29L.

The Claimant’s solicitors had sought to recover a total of £96 for each set of notes, inclusive of VAT, with the medical agency having included their mark up.

Although it was believed that the solicitors had a ‘financial interest’ in the agency HHJ Wood QC did not believe that the court should be drawn into direct or indirect criticism of the use of medical agencies. The central issue was whether the fact that rule CPR 45.29L specifically referred to a limit on recovery of agency fees in ‘road traffic accident claims’ also meant that such fees could not be recovered in "EL/PL” cases.

In rejecting the Defendant’s application, the Judge decided to allow recovery of ‘the reasonable and proportionate cost of obtaining the medical records’, which he set at £30 for each of the two sets of records in this case, on top of the direct costs and with VAT to be added.

A sensible decision perhaps. Let’s face it, the solicitors would have incurred charges in obtaining the notes and records in any event, so they will argue no doubt that by outsourcing this task to an agency, the costs will be reduced overall in the long run.

As an After the Event broker, the insurance we arrange does cover the costs of medical notes and medical agency fees under our Claimsafe policy, should the claim fail. Does your ATE insurer do so? These are a common item that we see in claims and make up a large part of the amount of claims that are paid out on.