Background:

The case of JXX v Archibald involved the issue of whether MROs were required to provide detailed breakdowns of their fees in the same way as solicitors, and whether the agency element of any such report should be capped.

The Issues:

1. Whether MRO fees should be considered as disbursements, exempting them from breakdown requirements.
2. The appropriateness of the mark-up charged by MROs, with some agencies charging significant percentages (up to 104% in the case of MAPS).
3. Whether a cap on the percentage mark-up of expert fees was necessary and, if so, what would be a reasonable limit.
4. The potential impact of this ruling on the accessibility of medical evidence in personal injury claims, especially for claimants who cannot afford upfront costs.

Held:
Judge Rowley concluded that MRO fees were indeed disbursements and did not require the same detailed breakdown as solicitors’ fees. However, the Judge also imposed a cap on the amount that MROs could charge for their mark-up on expert fees, limiting it to no more than 25%. This was in response to concerns about excessive mark-ups, with some agencies charging up to 104%. Rowley noted that the fees charged by MROs reflected commercial relationships with solicitors rather than being based on case-specific factors, and that even a general range of 30% to 53% was not considered reasonable.

While acknowledging that MROs played a vital role in the personal injury market, Rowley raised concerns about the impact of such a cap, particularly on agencies with business models that rely on higher mark-ups.

Comment:

While the judgment can be seen as a step forward for claimants in terms of recovering MRO fees, it also raised broader questions about the sustainability of the MRO business model and whether the cap will be challenged or lead to changes in the structure of the personal injury claims process. If a 25% markup is insufficient for medical agencies to perform their services as well as granting lengthy credit terms, then part of their overall fee will need to be paid by clients out of damages.

See a copy of the judgment here:

JXX (a Protected Party by his Litigation Friend ABB) v Scott Archibald - Find Case Law - The National Archives

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