The fixed recoverable costs regime aims to provide certainty and speed in deciding costs and disbursements. In many cases, especially those under the RTA prescribed disbursement regime, there tend to be minimal disputes. However, certain novel circumstances may lead to disagreements about the amount of costs a claimant can claim. A key driver of fixed recoverable cost hearings involves medical report disbursements that are not capped by a fixed amount and can be substantial, such as reports from pain experts or neurologists.
For many years, the parties involved in those disputes had only non-binding County Court Judgments to rely on. The Practice Direction: Citation of Authorities [2012] states that “An unreported case should not usually be cited unless it contains a relevant statement of legal principle not found in reported authority” [emphasis added].
The issue of the breakdown of disbursement vouchers used to fall within that category of legal principle not found in reported authority until now.
Origin story of disbursement breakdowns
The origins of the point being argued were a county court appeal in May 2002 by the late Judge Michael Cook (of Cook on Costs) in the matter of Stringer v Copley [2012] Lexis Citation 68. The appeal concerned a detailed assessment and the determination of whether the cost of the medical agency’s costs within the disbursement was recoverable.
Judge Cook first identified that using an outside agency to perform work was permitted, and that work carried out by the agency was regarded as if done by the solicitor themselves.
He then determined whether the medical agency’s fee was recoverable in addition to the expert’s own fee:-
“I am satisfied that there is no principle which precludes the fees of a medical agency being recoverable between the parties……..”
He did, however, make it conditional:-
“…. provided it is demonstrated that their charges do not exceed the reasonable and proportionate costs of the work if it had been done by the solicitors”
Therefore, the Claimant would, in essence, be delegating the work they would do themselves to a third-party agency.
Hoskin v Northampton General Hospital NHS Trust [2023] Lexis Citation 871
The principle was still alive twenty-one years later, but still without a binding authority on the point. This was, once again, a county court appeal of a detailed assessment.
In Hoskin, the Claimant had claimed two expert report fees invoiced by Premex, the medical agency instructed, but refused to provide a breakdown showing how much of the fee was the expert’s fee and how much was Premex’s administrative charge.
The Claimant argued that there was no requirement for a breakdown and if there was, it would have been in the PD as a clear and unambiguous requirement. The Defendant argued that the court needs to distinguish between agency fees and expert fees to assess the case properly. PD 47 clearly explains this. Since Premex is not an expert, its invoice cannot be considered an expert fee.
HHJ Bird had considered what Judge Cook had said in Stringer and determined that under CPR PD 47, a receiving party must provide the expert’s fee note, meaning the actual cost charged by the expert must be identifiable. Where a medical reporting organisation is used, the bill must also separately disclose the agency’s charges. He even went so far as to say that, by way of an order, if the breakdown was not disclosed, the disbursements would be assessed at zero.
Whilst permission to appeal to the Court of Appeal was apparently obtained, the appeal was withdrawn and that appeared to be the end.
Fixed recoverable costs cases – a different battlefield
I have been instructed in a number of cases where the argument was relied on by the Defendant paying party, but in cases where the fixed regime costs regime applied. In most cases, the argument that Hoskin and Stringer didn’t apply had significant traction.
The main argument was that the fixed recoverable cost regime operates independently from the summary and detailed cost assessments, as suggested by the obiter comments of the Court of Appeal in Doyle v M&D Foundations [2022] EWCA Civ 927. Consequently, the breakdowns required in Stringer and Hoskin were deemed unnecessary.
My instructing solicitors argued that, regarding medical agency disbursements, CPR 45.29I(2)(a) (or CPR 45.58(a)(ii) after 1st October 2023) implies that the recoverable fee encompasses not only the expert report’s cost but also the ‘cost of obtaining,’ which includes agency fees for arranging the expert’s instruction and report preparation.
The final point was to contend that the Claimant wasn’t receiving a blank cheque, as the Defendant could argue that the total disbursement amount was excessive. However, I would maintain that it was always within the Defendant’s rights to present evidence showing that the total disbursement cost was disproportionate.
Battle of the transcripts
Hearings became increasingly contentious as parties collated first-instance, non-binding decisions to convey that their position was correct.
For example, in the case of Aminu-Edu v Esure Insurance Co. Ltd [2024] Lexis Citation 356, where I acted for the Claimant, we had the following first instance decisions in the bundle:-
- Stringer v Copley [2002
- Charman v John Reilly (Civil Engineering) Ltd [2013]
- Bahram v Sheilk [2021]
- Lyons v Esure [2023]
- Fox v Lancashire & South Cumbria NHS Trust [2023]
- Azez v Chan [2020]
- Northampton General Hospital v Hoskin [2023]
HHJ Saggerson alluded to this in his Judgment:-
“I was referred to a number of other non-binding cases in what Mr Hancock described as the “battle of the transcripts” ….”
Aminu-Edu was then added to the list in the ‘Battle of the Transcript’ as a decision in favour of the Defendant paying party, essentially following the principle of Stringer, whilst making significant criticism of Premex for refusing to provide the breakdown. He refused to assess at £0 but he did cap it at £950 in the absence of any breakdown by a certain date. Permission to appeal was refused by Judge Saggerson and permission was not sought from the High Court. Again, no binding authority was secured.
The trend of decision, following Aminu-Edu, began to push back towards the need to have a breakdown of the medical agency fee. Another example was Parsons v Stevens [2024] CC Truro, where DDJ Fentem (as he was then) said that providing this information was necessary so the Defendant could understand and respond to the costs claim. The court stressed that the paying party has the right to know what they are being asked to pay and how the amount was figured. Commercial sensitivity was not accepted as a valid reason to hide the information. DDJ Fentem Ordered the breakdown, or he would cap the report to £1,250 and £250 for the agency’s fee in the alternative.
MIB v Santiago [2026] EWHC 513 (KB)
The origin of MIB v Santiago (now the only binding authority on the need for a breakdown) has its own complicated history.
Mr Santiago brought a personal injury claim for a road traffic accident against the MIB because it involved an uninsured driver. An interpreter was arranged for the trial because Mr Santiago was a Portuguese-speaking Brazilian national with limited English. The claim settled before trial, but there was a dispute as to whether or not his interpreter’s fee was recoverable as a disbursement.
The matter eventually reached the Court of Appeal, where it was determined that Mr Santiago’s limited English was deemed to be a particular feature of the dispute and therefore his interpreter’s fee under CPR 45.29I(2)(h) was recoverable despite not having a particular category of disbursement recoverable under the fixed cost regime.
The Court of Appeal remitted the matter back to the County Court for the determination of the quantum of that interpreter’s fee. The interpreter was arranged through an agency, and therefore, the question of whether there should be a breakdown of the invoice came before a Circuit Judge yet again.
The Circuit Judge allowed the recovery of the interpreter’s fee but reduced it slightly for the purposes of proportionality and rejected the Defendant’s proposition that a breakdown was required. Hoskin and Aminu-Edu were both relied on by the Defendant.
The Defendant appealed and the matter came before Moody J, who handed down his Judgment on 19th February 2026.
It was determined that no rule required a breakdown of interpreters’ fees just because the service was provided via an agency. Moody J recognised that agencies offer practical advantages, like administrative convenience and easy coordination of interpreters. Therefore, it’s proper for a solicitor to obtain interpreter services through an agency rather than hiring directly. This is very much aligned with Judge Cook’s decision.
However, Moody J rejected the proposition that an invoice must be dissected in order to separate the interpreter’s fee, the agency’s profit and the overheads. It was determined that the court may assess the reasonableness and proportionality without a breakdown and should focus on the total fee. He therefore upheld the Circuit Judge’s decision below.
Where do parties stand?
It is fair to say, as a starting point, that this approach has been determined within the confines of the fixed recoverable costs regime. A determination of the fixed recoverable costs and disbursements allowed in fixed-cost cases is an entirely different mechanism and process from the summary and detailed assessments.
Those undertaking detailed cost assessments may very well distinguish their cases from MIB on this basis. It is fair to say that the approach I have adopted on behalf of claimants’ solicitors was correct, insofar as there is no need for a breakdown in order to determine the disbursement. It also did not grant the Claimants carte blanche to recover the cost of disbursement without any scrutiny.
It is entirely within the Defendant’s power to obtain and rely on evidence to demonstrate that the fee note, particularly in the open market, was disproportionate and should be reduced by showing its lack of proportionality and reasonableness.
This decision is likely to cease some of the satellite litigation that has been escalating over the years. Nonetheless, having a clear approach will undoubtedly be appreciated. This is especially important for those involved in setting fixed costs in cases subject to the regime after 1st October 2023, where the costs of determination hearings are based on a fixed fee rather than a summary calculation.