“[21.] Mr Bilhal Hassan [of MSL] told me, somewhat surprisingly, that there was no direct communication between himself and anyone from [the solicitor] as to the terms on which services would be provided. What happened, virtually ‘out of the blue’, as I think he described it, was that [the solicitor] began to send instructions to his company. This was in 2010. A standard form template letter was used, the terms of which I shall come to in a moment Set out at paragraph 12 below. . On receipt of those standard form instructions, by Bilhal Hassan’s firm [MSL] would make the necessary arrangements for a medical examination and would communicate directly with the injured party to ensure that they attended the appointment with the relevant practitioner. [22.] In order to facilitate this business model, Mr Bilhal Hassan’s business [MSL] obtained the use of a number of premises around the country at which persons could attend, almost back to back, to be seen by an appropriate medical examiner. This business model, in the case of the connection with [the solicitor], was one that seems to have operated successfully and without too much difficulty over a number of years. The modus operandi, as it is described in the claimant’s statement of case, was simply that after having obtained a medical report an invoice would be rendered to the solicitor’s firm for [MSL’s] fees, included in which would be the fee for the medical practitioner. In most cases, in due course that fee was paid and matters proceeded happily.”
“We act on behalf of the above-named client in relation to personal injuries sustained as a result of a road traffic accident. We enclose herewith letter of instruction to the expert which we would ask you to put before the expert in our client’s area. Please find enclosed our client’s Medical Consent Form should you require it. We should be obliged if you could obtain our client’s medical records and forward the same to the expert in order for him to prepare the report only if the expert requires them. We look forward to receiving our client’s medical appointment in a month’s time from the date of instructions. If you are unable to supply an appointment within this period, please telephone us upon receipt of these instructions. When acknowledging these instructions, it would assist if you could give an estimate of the likely time scale for the provision of our report and also an indication as to your fee. We await hearing from you and thank you in anticipation of your assistance. Finally, in compliance with the Law Society’s new Pre-Action Protocol, we attach a notice in relation to Provisional Damage and would ask you to bring this to the expert’s attention. Thank you.”
“We are acting for the above named in connection with injuries sustained as a result of the above accident dated the19th October 2010 . We would be obliged if you could make the necessary arrangements to have our client examined and provide a full and detailed report dealing with any relevant pre-accident medical history, the injuries sustained, treatment received and present condition, dealing in particular with the capacity for work and giving a full prognosis… Please send our client an appointment direct for this purpose. Should you be able to offer a cancellation appointment, please contact our client direct. We confirm we will be responsible for you [sic] reasonable fees which will be settled upon conclusion of our client’s claims. Please also advise of the appointment date. Could you please make arrangements for the release of our client’s GP records should you feel the need to review the same. In order to comply with the rules we would be grateful if the Dr’s would insert there [sic] signature and a statement that the contents of the report are true to the best of his knowledge and believe. In order to avoid further correspondence we can confirm from the information before us that there is no reason to suspect we may be pursuing a claim against the hospital or its staff.”
“[31.] Letters would then be generated to the individual injured party by the claimant service providers [MSL]. The function of those letters was to ensure that the individual injured party actually [attended] the appointment that had been fixed for their medical examination. The wording of those standard letters made it plain that if there was a failure to attend a medical examination which incurred a cost, the individual lay client might in the future expect to see that amount recouped from any damages that they might recover… in the great majority of cases, the procedure worked correctly or as envisaged but sometimes appointments were missed. In those circumstances, [MSL] generated invoices not to the individual lay clients but to [the solicitor]. Many examples of such invoices appear in the documents before me.”
“Please bring a form of photo ID with you. Please be aware that if you fail to attend your appointment then a£150 fee will be deducted from your total compensation amount. In order to avoid any non-attendance fees, please ensure you attend the appointment at the time provided. You must provide [MSL] with 72 hours’ notice should you wish to cancel.”
“Medical legal report compiled by Dr Mukhtar; Claimant name; Mr [GNDA]; Appointment date 28/10/10; Cost of report:£375.00 ; VAT @17.5%: …; Total amount due:£375 . Please send cheques to the below address, complete with covering letter and your reference number. Cheques made payable to Medico Services Ltd.”
“[33.] In some cases the third-party insurers would not pay all of the sums claimed. But where they would and those sums included the full sum due to [MSL] on the invoice, then the present claimant [MSL] would be paid in full. In other cases, the third-party insurer would offer a lesser amount. There seemed … to be a standard fee that many third-party insurers considered an appropriate fee for obtaining simple medical reports. That would sometimes be short of what [MSL] had invoiced for. In those circumstances Mr Daud (the Accounts Manager for the firm [the solicitor]) told me that the expectation would be that the medico-legal service provider [MSL] would waive the difference or, perhaps, alternatively would raise a dispute with the third party insurer as to the reasonableness or otherwise of what the third party insurer was prepared to pay. [34.] Crucially, for the purposes of the present case, Mr Daud told me that if there remained an unpaid balance in the sense of a shortfall between the invoiced amount from [MSL] and the amount provided through third parties, then the loss represented by that shortfall, would be borne by the service provider [MSL] and not by the firm [the solicitor] which had commissioned the services…”
“We have been instructed by Aviva Insurance UK Limited … We confirm that stage 2 costs are agreed in the sum of£960.00 inclusive of VAT and the success fee is agreed in the sum of£180.00 inclusive of VAT. We consider the medical report fee claimed to be excessive and are instructed to offer the sum of£264.00 as reasonable. A cheque has been requested from our insurer client in the sum of£1404.00 …”
“[49.] I have drawn particular comfort from, firstly, the general and specific factual backgrounds which I have outlined earlier in this judgment. This was an industry standard, operating method. Second, the specific context was one of instruction of engagement of the services of the claimant [MSL] by the defendant [the solicitor]. To suggest, particularly in the context where solicitors are delivering those instructions, that they are doing so on a non-enforceable, non-contractual basis simply flies in the face of reality; all the more so, when the instructions have attached to them yet further subsidiary instructions specifically authorising the engagement of medical practitioner services. [50.] … In this operating scenario, in the great majority of cases it did not become necessary to spell out anything further as to the basis upon which fees would be demanded and paid. [51.] Yes, that left a degree of uncertainty. What would happen if the client disappeared and broken their contractual agreement with the solicitors? What would happen if the insurers paid less than the amount that [MSL] were demanding from the solicitors? The answer to those questions is to be inferred from all the circumstances. There are two possibilities. One is that the claimant [MSL] was agreeing itself to bear the loss. The other is that they were not. [The solicitor], which had the legal right to recover the relevant monies from their own client or the other party, claim that they were not taking any risk as to loss. That seems to me an absurd construction of the relevant underlying relationship. [52.] Accordingly, for all those reasons, I am satisfied that the primary case of the claimant succeeds and that the amounts claimed on the invoices are recoverable.”
“[9.] In breach of contract, [the solicitor] has failed to pay [MSL] the reasonable fees for which they have been invoiced in accordance with the attached Schedule at Appendix 3. [10.] By reason of [the solicitor’s] breach of contract, [MSL] has sustained loss and damage and [the solicitor] is indebted to [MSL]. Particulars of Special Damage (1) Total unpaid fees:£26,069.13 … AND [MSL] claims: (1) Repayment of the debt sum of£26,069.13 ; (2) Interest under theLate Payment of Commercial Debts (Interest) Act 1998 in the sum of£9,949.79 …”
“Most of our experts give no longer than 12 months to settle while exclusive experts whom we have long terms [sic] relations with [sic] agree to take payment on case settlement, though it is rare to find such experts. We have struggled to pay all the experts used for [the solicitor’s] instructions due to cash flow issues. Almost half the expert invoices where we have not been paid by [the solicitor] have been paid without receiving any payment from them, the others remain outstanding as debts to our experts. Some of the experts have permanently left our panel or refused to work with us and have threatened to issue proceedings against [MSL].”
“Where the Court of Appeal hears an appeal against the assessment of damages made by the judge sitting alone, without a jury, it applies similar principles to those followed previously in considering appeals against the award of damages by the verdict of a jury. The court will interfere only if it is convinced that the trial judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of the Court of Appeal, an entirely erroneous estimate of the damages to which the claimant is entitled. Great attention is paid to the opinion of the trial judge and the appellate court should be slow to reverse the judgment of the judge who saw and heard the witnesses. In special situations, the appellate court may take account of circumstances affecting the assessment of damages which arise after the first instance trial, eg if the fresh evidence showed the “basic or fundamental assumption” underlying the judge’s assessment had been “falsified by later events”
“the quantification of economic loss is often relatively straightforward… The court will have to select the method of measuring the loss which is the most apt in the circumstances to secure that the claimant is compensated for the loss which it has sustained …”