By Oliver White, Underwriter.
Estimated Reading Time – 3 minutes 21 seconds
The recovery of expert fees remains one of the most contested aspects of costs in clinical negligence cases. At a recent webinar hosted by Kings Chambers in conjunction with Temple Legal Protection, Fraser Barnstaple (barrister at Kings Chambers), examined the latest case law and practical strategies for claimant solicitors. The discussion covered guideline hourly rates, the ongoing uncertainty around expert agency fees and forthcoming changes to fixed costs.
Click here to listen to the webinar https://www.temple-legal.co.uk/news/webinars/
Departing from guideline hourly rates
Guideline hourly rates (GHRs) are a starting point, but not the end of the discussion. Paying parties frequently cite the Court of Appeal decision in Samsung to argue that any departure requires clear and compelling justification. However, as Fraser highlighted, this authority was given in the context of summary assessments. In detailed assessments the position is more flexible, with the Senior Costs Judge in Various Claimants v News Group Newspapers emphasising that GHRs are primarily a tool for judges unfamiliar with costs.
For claimant solicitors, the practical takeaway is the importance of providing a strong narrative in the bill of costs. Complexity is often inherent in clinical negligence – from analysis of voluminous medical records to disentangling pre-existing conditions – and this should be explained clearly.
The impact of client vulnerabilities should also be quantified wherever possible, for example by showing how additional time was required to accommodate disabilities, communication difficulties or the needs of protected parties.
Delegation between fee earners should be recorded carefully, as judges increasingly expect to see proportionate distribution of work across grades.
Expert agency fees and the case law divide
Expert reports are central to clinical negligence litigation and their cost is frequently challenged. The use of agencies adds a further layer of dispute, with conflicting case law on whether invoices must be broken down to separate the expert’s own fee from the agency’s charges.
Earlier decisions such as Stringer v Copley and Hoskin suggested that a breakdown could be required, while Sefton took the opposite approach in summary assessments. More recently, CRX v Dents Holdings and JXX have provided contrasting guidance, with the latter now often preferred by district judges as a balanced “halfway house”. Under JXX, if no breakdown is provided, the court may treat the entire invoice as the expert’s fee alone, potentially reducing recovery significantly.
Fraser’s advice was pragmatic: receiving parties should be prepared for challenges, anticipate requests for breakdowns and rely on JXX where necessary. Paying parties, meanwhile, are likely to continue pressing the point, sometimes in the hope of forcing application hearings.
Fixed costs and the new protocol
The government’s fixed costs reforms are set to change the way many lower-value clinical negligence cases are conducted. The proposed “standard track” within the new pre-action protocol will include staged costs, beginning with £5,750 plus 30% of damages at stage one, and limited uplifts for protected parties or children. Additional provision is made for cases progressing to early neutral evaluation, which is expected to become a key stage in encouraging settlement.
While the timetable for implementation remains uncertain, claimant solicitors should be aware that expert report fees will remain recoverable, albeit under greater scrutiny. Disputes about reasonableness are likely to continue, particularly where agency fees are involved.
Practical implications for claimant solicitors
The message from the webinar was clear: success in recovering expert fees and higher hourly rates depends on preparation and detail. Solicitors should:
- Build a comprehensive narrative into the bill of costs, highlighting complexity and vulnerability.
- Keep records that allow quantification of additional time or costs arising from client needs.
- Anticipate defendant arguments on agency fees and be ready to rely on recent authorities.
- Follow developments on fixed costs closely, as these will shape case preparation and budgeting.
Clinical negligence litigation is becoming more tightly controlled by costs rules and case law. By adopting a proactive approach and paying close attention to detail, claimant solicitors can put themselves in the strongest position to recover the costs legitimately incurred in pursuing justice for their clients.
If you would like to discuss any of the details raised in the webinar further, please call 01483 577877 or send an email to
Oliver White
Underwriter
Oliver White
Oliver is an Underwriter who joined Temple in 2022 as an Underwriting Support Assistant. He became a Trainee Underwriter in September 2023 and completed his training in August 2024. Oliver holds an LLB in Law from the University of Exeter, having graduated in 2020. His legal background equips him with a strong understanding of the legal issues relevant to cases referred to Temple, enabling him to make efficient and accurate underwriting decisions.
Oliver works across both the Clinical Negligence & Personal Injury and Commercial teams, reviewing referred cases and determining coverage. He also manages delegated authority schemes, acting as the primary point of contact for these firms and ensuring that Temple continues to meet their ATE insurance needs.
In 2024, Oliver took leadership of the Northern Ireland project, taking on full responsibility for its management and direction.
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