JXX v Archibald: senior costs judge rules 25% the recoverable cap on MRO mark-ups

Senior Costs Judge Rowley has handed down a significant judgement on the recoverability of Medical Reporting Organisation (MRO) fees in personal injury and clinical negligence claims, setting a 25% cap on the mark-up recoverable between the parties on expert fees. The decision in JXX (a Protected Party by his Litigation Friend ABB) v Scott Archibald [2026] EWHC 630 (SCCO), heard alongside HLA v LXA and EUI Limited, resolves questions that have circulated in costs litigation for over two decades.

The cases concerned the fee structures of two MROs — Medical and Professional Services Limited (MAPS) and Premex Services Limited — which had applied mark-ups of between 20% and 104% on underlying expert fees. Defendants argued that the Stringer v Copley (2002) approach should apply: MRO fees are only recoverable to the extent they do not exceed the cost of a solicitor carrying out the same work, with a detailed breakdown required to demonstrate this. The claimants and MROs resisted that approach, contending the court should assess the global invoice on ordinary principles of reasonableness.

MRO fees are disbursements

The judge concluded that MRO fees are properly characterised as disbursements rather than outsourced solicitors' profit costs. Applying the Crane v Canons Leisure Centre [2007] EWCA Civ 1352 test — focussing on the nature of the work and where responsibility for it lies — SCJ Rowley found that the administrative character of MRO activities, combined with the minimal supervisory role retained by instructing solicitors, pointed firmly away from the work being "solicitors' work." The expert's own fees plainly cannot constitute profit costs, and the MRO's role in marshalling evidence and managing appointments sits more naturally as a disbursement.

This conclusion carries a practical consequence of some importance: it removes the requirement for MROs to produce a quasi-solicitors' breakdown comparing their time costs against those a solicitor would have incurred. That exercise, the judge found, was artificial — MROs have never time-recorded in the manner of law firms — and the attempts made by both MAPS and Premex to reconstruct retrospective comparisons fell considerably short of what Stringer had envisaged.

No irrecoverable funding element

The defendants argued that the deferred payment and write-off ("waive") facilities built into MRO contracts contained an irrecoverable funding cost, relying on Hunt v R.M. Douglas (Roofing) Limited (1987) and the recent Supreme Court decision in Federal Republic of Nigeria v Process & Industrial Developments Ltd [2025] UKSC 36. SCJ Rowley rejected this. The staggered payment terms simply reflect the commercial reality that income lags expenditure across the personal injury market generally — solicitors operate on the same basis under CFAs — and the arrangement is better understood as a byproduct of the service rather than a credit facility. The waive facility similarly reflects commercial negotiation in an ongoing relationship rather than litigation funding in the Hunt sense.

The 25% cap

Having determined that the fees are not limited by the Stringer solicitor comparator, the judge nonetheless declined to simply allow the invoices as claimed. The tripartite tension inherent in MRO pricing — where those who benefit from the service are not those who pay for it — means competitive pressure between MROs for solicitors' business does not itself validate the percentage charged. Mark-ups of between 20% and 104% were in evidence, with MAPS most commonly claiming 53% and Premex 35% or 45%.

Taking a broad approach consistent with the macro basis on which MROs themselves set their charges, SCJ Rowley assessed 25% as the reasonable and proportionate mark-up recoverable between the parties. Any sum claimed below 25% would be limited to the lower figure. Amounts above 25% remain a matter between the claimant, their solicitor and the MRO. The judge noted that a stated maximum recoverable percentage on the MRO invoice would assist all parties and the court in future assessments.

The judgement expressly anticipates an appeal, having noted the absence of any determinative High Court or appellate authority in this area across more than two decades of litigation.

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