JXX v Archibald: MRO Fees Are Disbursements, Not Outsourced Solicitors' Work, Maximum 25% Markup Recoverable [2026] EWHC 630 (SCCO)
Detailed Assessment — 2026-03-17
Senior Costs Judge Rowley holds MRO fees are disbursements, rejects the Stringer Cap, and sets a maximum 25% markup recoverable between the parties.
Overview
Date: 17 March 2026
Judge: Senior Costs Judge Rowley
Court: Senior Courts Costs Office, Thomas More Building, Royal Courts of Justice
Hearing dates: 17-20 November 2025
Nature of Proceedings: Detailed assessment, conjoined cases concerning the recoverability and quantification of Medical Reporting Organisation (MRO) fees
Key Issues:
- Whether MRO fees are disbursements or outsourced solicitors' profit costs
- Whether the Stringer v Copley approach requiring a quasi-solicitor's breakdown should be followed
- Whether MROs achieve discounted expert fees unavailable to solicitors
- Whether deferred payment and write-off arrangements constitute irrecoverable "funding costs"
- The appropriate percentage markup recoverable between the parties
- Whether the court can and should assess MRO markups
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The Parties and Representation
These conjoined cases brought together:
- JXX v Archibald (Case No: SC-2025-BTP-000325), JXX (a protected party by his litigation friend ABB) v Mr Scott Archibald, with Medical and Professional Services Limited (MAPS) joined as Third Party
- HLA v LXA (Case No: SC-2025-APP-000280), HLA (a protected party by her mother and litigation friend HDA) v (1) LXA and (2) EUI Limited, with Premex Services Limited joined as Third Party
Six members of counsel were instructed: Benjamin Williams KC (instructed by Thompsons) for JXX; Nicholas Bacon KC and Matthew Waszak (instructed by Glaisyers ETL) for MAPS; Robert Marven KC (instructed by Slater & Gordon UK Ltd) for HLA and Premex; and Roger Mallalieu KC and Simon Teasdale (instructed by Horwich Farrelly) for the defendants.
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Procedural History
On 17 January 2025, Senior Costs Judge Rowley handed down a reserved judgment in the JXX proceedings, putting the claimant to an election: provide further information in respect of the medical evidence fees, or have them assessed on the existing material. JXX chose to provide further information with the agreement and support of MAPS, which was joined as a Third Party.
The HLA case was then joined for a combined hearing. Premex (through its parent company Exam Works UK Limited) sought to become involved and was joined to HLA as a Third Party.
The Association of Medical Reporting Organisations (AMRO) applied to join the proceedings in July 2025 but was refused, although the Judge indicated that the application might be renewed to an appeal court should this case be appealed.
By early October 2025, the parties had agreed the JXX bill of costs save for the medical evidence fees. By early November, the same had occurred in HLA. The experts' own fees had also been agreed in both cases. What remained in dispute were solely the MRO fees, the markups charged by MAPS and Premex on top of the experts' fees.
No fewer than 27 witness statements were served, all on behalf of the claimants and third parties. The defendants served no evidence. Six witnesses were cross-examined by Mr Mallalieu KC for the defendants.
The Judge observed in his introduction that this area has been litigated "for more than two decades now without any directly relevant High Court or higher decisions" and that "a determinative authority would be welcome." He expressly anticipated that "one, or possibly both, sides will wish to seek that determinative decision."
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Background: The Stringer Cap and Two Decades of Dispute
The assessment of MRO fees has been contentious since MROs first became involved in personal injury work in the 1990s. The governing authority came from Stringer v Copley (2002), a county court decision of HHJ Cook. Judge Cook held that there was no objection in principle to the recovery of MRO fees, provided their charges did not exceed "the reasonable and proportionate costs of the work if it had been done by the solicitors." He required MRO invoices to distinguish between the medical fee and the agency's own charges, "the latter being sufficiently particularised to enable the costs officer to be satisfied they do not exceed the reasonable and proportionate cost of the solicitors doing the work."
This limitation, referred to by Mr Mallalieu as the "Stringer Cap", was endorsed by Senior Costs Judge Hurst in the Claims Direct Test Cases (2003) and subsequently followed by HHJ Bird in Northampton General Hospital NHS Trust v Hoskin (2023) and Senior Costs Judge Gordon-Saker in CXR v Dome Holdings Limited (2023).
In practice, as the judgment records, the requirement to produce a Stringer-compliant breakdown was "honoured in the breach." MROs do not time-record in the manner of solicitors. Cases settled by negotiation without breakdowns ever being produced. When defendants raised points of dispute requesting breakdowns, replies typically asserted in generic terms that "medical agencies provide a cheaper service" without producing the comparative evidence required. As the Judge noted, these replies were plainly written by claimant solicitors rather than the MROs themselves.
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Key Holdings
1. MRO Fees Are Disbursements, Not Outsourced Solicitors' Work
The most significant holding is the characterisation of MRO fees as disbursements rather than outsourced solicitors' profit costs. Senior Costs Judge Rowley applied the two-part test from Crane v Canons Leisure Centre [2007] EWCA Civ 1352, which focuses on (a) the nature of the work done (whether it is solicitors' work) and (b) where responsibility for the work lies.
On the nature of the work: The Judge noted that Judge Cook in Stringer had himself described MRO activities as "administrative work." In detailed assessments, paying parties regularly seek to categorise such work as non-fee-earning and therefore not recoverable as solicitors' costs. Much of the perceived value of an MRO, including maintaining expert databases, organising rooms and appointments, and operating deferred payment mechanisms, was not work that solicitors would have done, and therefore could not sensibly be described as outsourced solicitors' work. Furthermore, a breakdown provided under Stringer guidance would be "vulnerable to the challenge that the work was not in fact legal work in any event," leading to the "somewhat surprising conclusion" that nothing was recoverable even though the sum claimed was less than the solicitor would have charged.
On responsibility: The comparison with Crane, where solicitors checked, approved and were accountable for every aspect of their costs draftsman's work, did not hold. Once the MRO received instructions, it was "left to get on with organising the date of examination, the gathering of the medical records etc until such time as the report is provided to the solicitor." Responsibility for the contents of the report lay with the expert, not the solicitor. That point, together with Judge Hurst's observation in Claims Direct that the majority of the MRO fee note is the expert's own fee, "points heavily towards the MRO fee being a disbursement rather than an outsourced solicitors' cost."
The Judge noted that Senior Costs Judge Hurst had reached the same conclusion in the Claims Direct Test Cases (at paragraph 115), and that Judge Cook's own formulation in Stringer, that the fees "could also be treated as though the work had been done by the solicitors and charged accordingly", only made sense if MRO fees were already treated as disbursements.
The practical consequence: "I do not consider the fees are limited by a comparison with a hypothetical solicitor's work in obtaining the medical evidence and as such there is no purpose in requiring an MRO to provide a breakdown equivalent to that produced by solicitors in their bill of costs."
2. Rejection of the Stringer Cap
Having characterised MRO fees as disbursements, the Judge departed from the Stringer approach. The importance of the disbursement characterisation, he held, "is that it leads the assessment away from a comparison of time and effort spent by the MRO with the hypothetical time costs of the non-required solicitor."
Both MROs had nevertheless attempted to produce the sort of comparative evidence contemplated by Stringer:
- Premex produced an appendix to Mr Cutler's witness statement (CEO of Exam Works UK Ltd) estimating time spent across 23 invoices. The Judge found this "falls considerably short" of the comparison contemplated by Stringer. The exercise was retrospective, based on estimated times for activities that were not logged, with gaps that had to be filled. The comparison was undermined by using the same hourly rate as a solicitor (£155) rather than a lower rate reflecting the MRO's actual salary costs. Mr Cutler stated it took over 20 hours to produce, but the Judge did not think "it really assists in contemplating the sort of calculation originally envisaged in Stringer given the uncertain and estimated nature of the time claimed to have been spent."
- MAPS produced an estimated table of notional Grade D fee earner work appended to Mr Stothard's (Managing Director) witness statement. Mr Stothard candidly accepted: "I recognise that it is not possible to make an exact like for like comparison between the work we do and the work a notional solicitor would have done in the instant claim."
The Judge concluded that even if the Stringer approach were correct, "the claimants have, in my judgment, failed to put forward any cogent evidence which might remove doubt from the court's mind as to the reasonableness of the fees."
3. No Evidence That MROs Achieve Lower Expert Fees
A common assertion in replies to points of dispute has been that MROs are "able to keep down the fees charged for the actual report" through bulk purchasing power. The Judge found this not made out on the evidence.
Only one expert, Professor Cosker, gave evidence suggesting a differential rate (£250/hour for MROs versus £450/hour for solicitors). The Judge was "not particularly convinced" by this evidence. Professor Cosker's figures appeared "rather off-the-cuff" and when asked further questions, "he retreated to the word 'difference' on two separate occasions rather than reiterating the figures he gave originally." When pressed, his evidence seemed to relate more to the additional time required when instructed directly by solicitors than to a contractually agreed rate differential. The Judge concluded that Professor Cosker was not discounting his fees in favour of MROs, and "it was simply that he was penalising (some) solicitors."
Mr Stothard of MAPS accepted that seeking a commercially lower hourly rate from experts than solicitors could achieve was "not a point which he would make." Mr Medforth of AMRO confirmed that expert fees "tend to be consistent across the market, as no MRO can force any expert to work solely for them." As the Judge observed: "In a market where the MRO places a percentage markup on the expert's fees, it is somewhat self-defeating to seek to reduce the figure on which the markup would be applied."
4. No Irrecoverable Funding Costs Within MRO Fees
The defendants argued that MRO fees contained irrecoverable "funding costs", namely the cost of paying experts promptly while waiting years for reimbursement, and the cost of write-off ("waive") facilities. They relied on Hunt v R.M. Douglas (Roofing) Limited (1987), pointing to the recent Supreme Court confirmation of that principle in Federal Republic of Nigeria v Process & Industrial Developments Ltd [2025] UKSC 36, where the court stated that costs assessment "excludes the costs of funding the litigation, such as the cost of borrowing or the sums paid to commercial litigation funders."
Mr Mallalieu argued that if the funding costs could not be disentangled from the remainder of the MRO fee, then the court would have to disallow everything to avoid allowing an irrecoverable item.
The Judge rejected this. He accepted Mr Marven KC's submission that the MRO's payment arrangements were not "funding costs" in the Hunt sense. Mr Marven drew a comparison with the traditional arrangement whereby solicitors pursue matters on behalf of clients on CFAs without charging until the end of the case, and no one suggests that amounts to the solicitor funding the litigation. Similarly, experts who accepted year-long payment terms were not providing credit; the defendant did not argue otherwise for directly instructed experts but described the same delay as "funding" when a third party was involved.
The Judge held:
> "An MRO is simply factoring into its terms and conditions an expectation that income will lag expenditure by a distance. As with the other participants, cash flow will eventually appear in cases coming to fruition and will pay for expenditure incurred in newer cases. The purpose of the terms and conditions is to provide medical evidence; it is not to provide credit even though that is, in effect, a byproduct of the agreement."
The waive facility and the detailed cash flow arrangements between Thompsons and MAPS (involving regular payments to smooth MAPS' cash flow under a "preferred supplier agreement") were similarly held to reflect ordinary commercial relationships: "They simply reflect a commercial relationship between the MRO and the firm of solicitors."
5. Rejection of the Claimants' Global Comparison Approach
The claimants argued that the court should look at the aggregate MRO invoice, combining the expert's fee and the MRO fee, and assess reasonableness on a global basis by comparing one invoice with another. Benjamin Williams KC asked rhetorically: "Where is the evidence that the MROs are inflating the overall cost of medical evidence?"
The Judge rejected this approach. The simple answer to Mr Williams' query was "in fact the MROs' own evidence. According to that evidence, between 20% and 104% increases on the experts' fees have been claimed in the JXX case and generally 35% or 45% mark ups have been claimed on the experts' fees in HLA's case."
The Judge was also unpersuaded that the competitive market between MROs for solicitors' business provided any reliable indicator of reasonableness, because of the "tripartite relationship" as Mr Cutler described it. The party paying for the purchase was not the party choosing the product. As Professor Peysner had memorably put it, the relationship resembled "parents buying training shoes for their children."
6. The 25% Cap: Derivation and Reasoning
Having rejected both the Stringer Cap and the claimants' global comparison approach, the Judge turned to quantification. The evidence showed wide variation in markups actually charged:
- MAPS most commonly charged 53%, but also 30%, with outliers ranging from 20% to 104%
- Premex charged either 35% or 45% for most evidence, having increased from 35% to 45% during the HLA case
These percentages were not set on a case-by-case basis but reflected "macro level" commercial decisions and "ongoing commercial relationships between the solicitors and MROs rather than any case specific factors."
The Judge rejected Mr Bacon KC's invitation to treat MRO markups like ATE premiums (where costs judges were cautioned by the Court of Appeal in Rogers v Merthyr Tydfil against second-guessing underwriting decisions). Unlike ATE insurance, there was no compulsion to use MROs, as "many solicitors instruct experts directly, at least in some cases." Moreover, "costs judges are used to considering the reasonableness of percentages claimed, unlike insurance premiums, and so the task is not a novel one."
The Judge recognised that MRO fees encompassed legitimate costs: the work of obtaining evidence (the Stringer description of MRO activities), the expert database, compliance and onboarding costs, and some element of profit. But the general range of 30% to 53% "plainly reflect variations resulting from ongoing commercial relationships between the solicitors and MROs rather than any case specific factors."
Taking a cautious approach in light of the limitations of the evidence:
> "Having spent a considerable time reviewing the evidence and submissions in this case, both as documentation and in this decision, in my judgment, a mark up figure of 25% between the parties would be a reasonable percentage. More than that would be a matter for the claimants, their solicitors or the MROs. Any mark up claimed of less than 25% would be limited to that percentage."
Important details of the 25% cap:
- It is a maximum, not a floor. If the MRO claims only 20%, only 20% is recoverable, not 25%
- It applies to the entire expert fee including disbursements such as travel, "for reasons of simplicity and practicality"
- It reflects recovery between the parties. Any gap between what is charged and what is recoverable is a matter for the claimant-side participants
As a practical steer, the Judge added: "One advantage of a maximum recoverable percentage fee is that it can easily be stated on the MRO invoice, unlike the quasi-solicitors' breakdown, which might assist all sides as well as the court in the future."
7. The Court Can and Should Assess MRO Fees
The Judge confirmed that the receiving party retains the right to elect what evidence to provide. Where the evidence is limited, the court must adopt a cautious approach. Where there is no evidence at all, the MRO fee should be assessed on the basis of no MRO involvement, i.e. the expert's fee only.
The Judge also confirmed that the adverse impact on MROs was not a matter for a court of first instance. He rejected the argument that a decision against the claimants would "imperil" MROs, noting that similar predictions of doom had been made before the introduction of lower value PI portals at fixed fees and during the "costs wars" involving claims referral agencies, yet the market adapted. Such policy matters "would be for an appellate court."
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The Santiago Postscript
Whilst preparing the judgment, the parties drew the Judge's attention to the decision of Moody J in Motor Insurers' Bureau v Santiago [2026] EWHC 513 (KB) (handed down 19 February 2026), where the court upheld a global assessment of interpreter fees without deconstruction.
Senior Costs Judge Rowley distinguished Santiago on two grounds: the judges in Santiago had nine alternative quotations for comparison, "an entirely unremarkable fashion" of assessment, whereas no such comparators were available in the MRO cases; and there was no evidence provided to the judges in Santiago about the extent of the fees in the way that evidence of MRO fees had been received in this case. The decision was "interesting and clearly on similar territory" but did not assist and was not binding given the "case specific differences."
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Practical Implications
For Receiving Parties and MROs
1. The 25% cap is the new ceiling. MRO fees will be assessed on the basis that no more than a 25% markup on the expert's fee is recoverable between the parties. Markups of 30%, 45% or 53%, commonplace in the current market, will not be allowed on assessment. The difference falls to be borne by the claimant, the solicitor or the MRO.
2. Invoice presentation should change. The Judge's observation that "one advantage of a maximum recoverable percentage fee is that it can easily be stated on the MRO invoice" is a clear steer. MROs should consider revising their invoicing to show the expert's fee and a separate MRO fee at no more than 25%.
3. No more Stringer breakdowns. The quasi-solicitor's time recording exercise that receiving parties have struggled to produce for over 20 years is no longer required. MRO fees are disbursements and are assessed on a reasonableness basis without comparison to hypothetical solicitors' costs.
4. Funding costs arguments rejected. Deferred payment and write-off arrangements are part of ordinary commercial practice and are not irrecoverable funding costs under Hunt v Douglas Roofing. The comparison with solicitors' own arrangements on CFAs is instructive.
5. Evidence still matters. Where MRO fees are challenged, the court will adopt a cautious approach where evidence is limited. Where there is no evidence at all, the fee should be assessed on the basis of no MRO involvement, i.e. the expert's fee only.
6. The election remains with the receiving party. There is no compulsion to produce a particular form of evidence, but the consequence of providing limited evidence is a cautious assessment.
For Paying Parties
1. The 25% figure provides a clear benchmark for negotiations and points of dispute. Any markup above 25% should be challenged on the authority of this decision.
2. The global comparison argument has been rejected. Paying parties are not required to accept MRO invoices at face value or to compare one aggregate invoice with another.
3. The tripartite tension is recognised. The court has acknowledged that competition between MROs for solicitors' business does not protect the interests of paying parties, who have no say in which MRO is used or on what terms.
4. No evidence of MRO cost savings. The assertion that MROs achieve lower expert fees than directly instructing solicitors has been rejected on the evidence.
5. The Stringer Cap has gone. Paying parties lose the argument that MRO fees should be assessed by reference to what a hypothetical solicitor would have charged. This cuts both ways, as the quasi-solicitor analysis was sometimes used to disallow fees entirely.
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Conclusion
JXX v Archibald is the most comprehensive judicial treatment of MRO fees to date. After two decades of county court and SCCO decisions circling the same issues without resolution, Senior Costs Judge Rowley has provided authoritative guidance: MRO fees are disbursements, not outsourced solicitors' work; the Stringer Cap is wrong; deferred payment and write-off arrangements are not irrecoverable funding costs; the assertion that MROs secure lower expert fees is not made out; and 25% is the maximum reasonable markup recoverable between the parties.
The financial impact is substantial. MROs whose business models are built on markups of 35% to 53% face a significant reduction in recoverable fees. The Judge was clear that the gap between what is charged and what is recoverable is a matter for the claimant-side participants to resolve between themselves.
Whether the 25% figure survives appeal remains to be seen. The Judge himself anticipated further proceedings, and AMRO's refused joinder application, with an express indication it could be renewed on appeal, suggests the groundwork has been laid. An appeal may now be the only route to genuine finality on the recoverability and quantification of MRO fees.
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Citation: JXX (a Protected Party by his Litigation Friend ABB) v (1) Archibald (2) Medical and Professional Services Limited; HLA (a Protected Party by her mother and Litigation Friend HDA) v (1) LXA (2) EUI Limited (3) Premex Services Limited [2026] EWHC 630 (SCCO)
Full judgment available at: BAILII
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