Medical expert fees – senior costs judge replaces the Stringer Cap with the JXX Cap

The senior costs judge has delivered judgment in the long anticipated JXX litigation concerning the approach that should be taken when assessing the fees sought in respect of medical evidence obtained through a Medical Reporting Organisation 'MRO' (often referred to as a medical agency).

The judge effectively replaced the so-called Stringer Cap with what could be termed the JXX Cap. The approach in the often cited County Court decision from 2002 of Stringer v Copley concerning MRO fees was that any allowance on assessment should be capped at the level that would be charged by a hypothetical solicitor carrying out the work. By determining the MRO fee as a disbursement rather than an outsourced solicitor profit cost, the hypothetical solicitor test is no longer relevant. Instead, the judge ruled that the MRO fee should be capped at 25% of the expert's fee, rather than the usual markup of between 30% and 53%. Further, it is not necessary to deconstruct the MRO fee as there are no irrecoverable elements and it is not relevant how the fee is arrived at. This means a breakdown of the MRO fee is not required only disclosure of the fee charged by the expert and the amount of the separate MRO fee on top.

These detailed assessment proceedings have been the subject of two different judgments which can be summarised as follows:

JXX v Archibald [2025] EWHC 69 (SCCO)

• An application was made to strike out the claimant's bill or assess at nil the claimant's medical evidence unless a breakdown of the medical evidence fees were provided.
• The bill of costs included £120,000 for fees for medical evidence from an MRO called Medical and Professional Services Limited ('MAPS').
• The claimant was put to an election of either disclosing a breakdown of the MRO fees or in the absence of disclosure, the medical evidence fees would be assessed on the hypothetical basis that an MRO was not involved.
• The defendant was permitted to produce any comparative evidence.

JXX v Archibald II and HLA v EUI Ltd [2026] EWHC 630 (SCCO)

• The claimant elected to put forward further information concerning the medical evidence to include disclosure of the fee charged by the expert and the fees of MAPS.
• The ongoing case of HLA v EUI Ltd was joined to the JXX detailed assessment proceedings: HLA featured an MRO called Premex Services Ltd
• Only the MRO element remained outstanding as the expert fees themselves were agreed and not therefore subject to assessment.
• The defendant did not submit evidence of any comparative alternative quotations
• The judge ruled that:
  • An MRO fee is not an outsourced solicitor profit cost but a disbursement and therefore the 'hypothetical solicitor test' is not relevant.
  • MRO fees do not include irrecoverable elements; deferred payments and waivers are a broader commercial feature and not a specific irrecoverable 'funding' element
  • The use of an MRO increases by a percentage the total fee claimed.
  • MRO fees should be subject to a maximum recoverable cap of 25% of the fee charged by the expert and should be stated on the MRO invoice.

JXX: Cautionary points to note on the facts

1. The expert fees themselves in this case were agreed: only the MRO fees were subject to assessment.
2. The claimant was not compelled to provide any breakdown but put to the election set out above and accordingly the evidence provide was done so voluntarily.
3. The defendant did not submit any comparator evidence.
4. One of the experts initially produced evidence directly and the defendant was therefore able to argue that the fees later commissioned through the MRO significantly increased.

Next steps

An appeal seems likely. The senior costs judge made it clear in the first judgment that permission to appeal would be granted and in refusing an application by the Association of Medical Reporting Organisations to be added as a third party, reference was made to the possibility of re-applying should any party appeal. It remains to be seen whether the MROs will take up the invitation to produce fee notes setting out what their fee is.

Comment

Adam Burrell, Head of Costs at DACB commented as follows:

"This is a practical method of dealing with the MRO fee element and will help reduce the ever increasing cost of medical expert evidence. At the very least paying parties will require confirmation that any medical evidence fees obtained by MROs do not exceed the JXX cap. Ideally, fee notes will provide details of the expert fee and the separate MRO fee. It must surely follow that a refusal to supply sufficient information will attract an adverse inference and if faced with a refusal to supply details a paying party will be able to take that refusal into account when making an offer."

For more information or advice, please contact one of our experts in our Costs Team.