If their aggressive approach to litigation were matched by case merit, one might have some understanding of quite why a “select” group of Defendants solicitors behave in the way which they do.
To be fair to this “select group”, whilst we all love to hate them, they are unlikely to be acting beyond the remit of their instruction and therefore it is the paying parties and/or their insurers who are sanctioning this long-running, unduly expensive and tedious battle. So it is organisations like the NHS (i.e the UK taxpayer) who have opted to embark on this pointless pursuit. One might have thought that the NHS would have better things to spend our money on…
The story so far.
When Claimant’s medical experts are instructed via a medical agency, it has long been established that the fees of the latter combined with the fees of the former are recoverable between the parties subject to the usual rules on R & P.
In the last few years, paying parties have developed an appetite to take issue with these combined fees and have used various means by which to articulate their challenges. They have had some minor victories*, albeit nothing particularly definitive nor binding and these minor victories have served to feed their appetite for more costly battles.
There has been success on both sides yet whilst the Claimants have humbly taken their victories without shouting from the rooftops it is notable that the moment a paying party achieves a minor victory, off it runs to their favourite legal blogger to tell the world of their huge* success !
*very minor
The latest in this long running saga is the ruling in the case of JXX -v- Archibold wherein senior Costs Judge Rowley concluded that a receiving party is not obliged to dance to the tune of the paying party. The receiving party can rely on whatever medical fees notes it chooses, the paying party can respond however it chooses and the Court shall assess accordingly. The Court is not there to spoon-feed the parties by telling them what the medical fee notes should include / what a paying party might evidence in return.
In summary, the JXX decision doesn’t change anything. However, it does send a loud and clear message to paying parties representatives ie stop seeking a binding authority and concentrate on adducing evidence to support your point!
Unfortunately, history has taught us that paying parties will not take the hint and they will continue to waste our money in pointless pursuits.