Recent Medical Negligence Cases and Their Impact on Case Law: The Expert Witness Charging Revolution

The landscape of medical negligence litigation in England and Wales is undergoing significant change. A series of recent court decisions — culminating in the landmark ruling in JXX v Archibald [2026] EWHC 630 (SCCO) — are reshaping how expert witnesses are instructed, how their fees are charged, and what costs are recoverable between parties. This article examines the most significant recent cases and their implications for medico-legal practice.

The Current Landscape: NHS Clinical Negligence Claims in 2024–25

NHS Resolution received 14,428 new clinical negligence claims in 2024/25 — a 4.7% increase year on year. Despite this rise, 83% of claims were resolved without court proceedings, up from 81% the previous year. Total compensation payments against NHS clinical negligence schemes reached £3.09 billion in 2024/25. Obstetrics, emergency medicine, and orthopaedics remain the largest claim categories.

While the majority of claims settle before trial, the cases that do reach the courts are setting important precedents — particularly around expert evidence, causation, and the costs of obtaining medical reports.

JXX v Archibald [2026] EWHC 630 (SCCO): A Watershed Moment for Expert Witness Charging

The most significant recent development for medico-legal practitioners is the judgment handed down by Senior Costs Judge Rowley on 17 March 2026 in JXX v Archibald. This case — heard together with HLA v LXA(1), EUI(2), Premex Services Limited — directly addresses the fees charged by Medical Reporting Organisations (MROs) when arranging expert medical evidence in personal injury and clinical negligence claims.

What Are MROs and Why Do They Matter?

Medical Reporting Organisations act as intermediaries between solicitors and medical experts. They arrange reports, handle logistics, and invoice on behalf of experts — typically charging a composite fee that bundles the expert's own fee with an administrative mark-up. For years, the level of this mark-up has been opaque and, in many cases, substantial. MAPS (Medical and Professional Services Limited) was found to be charging mark-ups of 53% on expert fees, with some outliers reaching 104%. Premex Services Limited was charging between 35% and 45%.

The Key Findings in JXX v Archibald [2026]

Senior Costs Judge Rowley made three critical findings:

1. MRO fees are a disbursement, not outsourced solicitors' work. The work of MROs is largely administrative and, if carried out by a solicitor's firm, would not be performed by fee-earning staff. Responsibility for producing the medical report lies with the expert, not the solicitor.

2. Departure from the Stringer Cap. The previous benchmark — set in Stringer v Copley [2002] — required MRO fees to be assessed against what a solicitor would charge for equivalent work. Judge Rowley departed from this approach, finding it no longer fit for purpose given the nature of MRO activities.

3. A new 25% cap on recoverable MRO mark-up. The maximum recoverable mark-up on expert fees — including travel time and other disbursements — is now capped at 25% of the expert's total invoice. This applies to the whole of the expert's invoice, not just the report preparation fee.

Practical Impact on Legal Agencies and Expert Witnesses

The practical consequences of this ruling are already being felt across the medico-legal sector. Premex has responded by introducing a 15% service charge on expert invoices, citing the judgment directly. Defendants now have a clear and straightforward basis on which to challenge MRO fees at detailed assessment — the question is simply whether the mark-up exceeds 25%, removing the burden of the complex Stringer breakdown argument.

It is important to note that this is a first instance decision and is not strictly binding. However, it carries significant persuasive authority and is likely to be treated with considerable weight in detailed assessment proceedings across the jurisdiction. An appeal is anticipated, and the profession awaits a Court of Appeal ruling to settle the matter definitively.

The Earlier JXX v Archibald [2025] EWHC 69 (SCCO): Transparency First

The 2026 ruling builds on an earlier judgment in the same case, handed down on 17 January 2025. In that decision, Costs Judge Rowley ruled that where a claimant refuses to disclose a breakdown of expert and agency fees, the entire composite fee should be assessed as if the MRO were not involved — effectively capping it at the expert's direct rate. This established the principle that claimants must provide a full breakdown of the expert's fee and the MRO's charges, and that failure to do so carries significant costs consequences.

Other Significant Recent Cases

CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5

On 18 February 2026, the Supreme Court handed down a landmark ruling on lost years damages for infant claimants. By a majority of four to one, the Court overruled Croke v Wiseman [1982] 1 WLR 71 — a Court of Appeal authority that had, for forty-four years, barred lost years damages for young children. The case has significant implications for the quantum of damages in catastrophic injury cases involving children, and will require practitioners to revisit their approach to future loss calculations in such claims.

Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1: Secondary Victims

The Supreme Court's ruling in Paul v Royal Wolverhampton NHS Trust fundamentally reshaped the law on secondary victim claims in clinical negligence. The Court clarified the threshold criteria for secondary victims, doing away with several long-standing requirements that had been misunderstood since Alcock, McLoughlin, and Frost. The decision opens the door to a broader class of secondary victim claims in clinical negligence, particularly in cases involving delayed diagnosis where a family member witnesses the consequences of negligent treatment.

Read v North Middlesex Hospital Trust [2025] EWHC 1603 (KB): A Warning to Practitioners

In Read v North Middlesex Hospital Trust, Master Thornett delivered a judgment that serves as a triple warning for clinical negligence practitioners. The case illustrates how failures at every stage — from expert instruction to pleading to compliance with unless orders — can culminate in both strike out and the disapplication of Qualified One-Way Costs Shifting (QOCS), exposing claimants to adverse costs orders. Key lessons include: claims must be adequately particularised with a clear counterfactual causation case; expert evidence must come from the right disciplines and be obtained before serving pleadings; and QOCS protection is no shield for substantively unviable claims.

The Broader Trend: Transparency, Proportionality, and Reform

Taken together, these cases reflect a clear judicial and regulatory direction of travel: greater transparency, proportionality, and accountability in clinical negligence litigation. The courts are increasingly unwilling to allow unrevealed mark-ups on expert fees, inadequately particularised claims, or opaque cost structures. The Ministry of Justice's 2025 Fixed Recoverable Costs review is expected to introduce mandatory breakdowns of MRO invoices or hard fee caps, further entrenching these principles.

For medico-legal experts, the message is clear: the era of opaque composite invoicing is ending. Experts and the agencies that represent them must be prepared to justify their fees with full transparency. Those who adapt to this new environment — by offering clear, itemised billing and demonstrating the genuine value of their services — will be best placed to thrive as the regulatory landscape continues to evolve.

Key Takeaways for Sheffield MedicoLegal Practitioners

• MRO mark-ups are now capped at 25% of the expert's total invoice following JXX v Archibald [2026].

• Full fee breakdowns — separating expert fees from agency charges — are now expected by the courts and should be provided as a matter of course.

• Secondary victim claims in clinical negligence have been broadened following Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1.

• Lost years damages for infant claimants are now recoverable following CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5.

• Expert evidence must be obtained from the correct disciplines before pleadings are served — Read v North Middlesex Hospital Trust [2025] confirms that procedural failures can result in strike out and loss of QOCS protection.

• An appeal in JXX v Archibald is anticipated — practitioners should monitor developments closely as a Court of Appeal ruling could further reshape the costs landscape.

This content was generated by AI. It is intended for informational purposes only and does not constitute legal advice. Always consult a qualified legal professional for advice specific to your circumstances.