Recently on Linkedin I posted a poll in the UK Personal Injury Lawyers group. Some interesting responses and comments were made so I decided to re-post on my blog;
Do you think instructions for medico-legal photography of a claimants injuries can be justified as disbursements? or can only be classed as special damages?
- Disbursements: 16 Votes (100%)
- Special Damages: 0 Votes (0%)
Tim Zoltie • In alot of cases this is often overlooked and any photographer instructed to photograph a claimant is simply put down as a special damage.When undertaken professionally by a specialist clinical photographer, it becomes an expert photographic report used as evidence and can therefore arguably be justified as a disbursement.
Michael Henry • It seems my vote went the same way as everyone else did on this so far. An interesting point comes to mind. If being classified as an expert report and therefore disbursements cost the question that will on any costs assessment or negotiations then arise is whether formal court permission was given by the court for the use of such expert. Could it be argued as incorporated within the permission for say the Orthopedic Consultant or plastic surgery medical expert if for example they make use of the same in considering the matter and preparation of their reports?
I am afraid my own experience on this aspect is modest but simply throw the thought out there. Do such experts routinely sub contract the taking of photographs they incorporate into their reports? which would presumably pick up the cost within their overall fee for the preparation of the report. I suspect the plastic surgeon report I got recently incorporated photographs taken by the plastic surgeon expert himself rather than utilising an expert clinical photographer.
John Wardley • I really don't like the phrase "no brainer" but IMHO it's one of those. If it is part of the evidence gathering process rather than a loss suffered by the claimant then it must form part of the legal costs rather than of the damages and as it's not solicitors' work delegated to an agent it must be a disbursement rather than profit costs. This would be the case whether using a specialist medical photographer or a good professional photographer who knows what is required. Use of lighting properly is essential to obtain the most accurate effect. I have never had such an item challenged on detailed assessment. But as ever happy to hear contrary views.
Robert Godfrey • I agree with John(above) on this. The photographs will be signed by the photographer and if needs be he/she could be called to give evidence like any other expert.
As such it should be a disbursement.
Sue Nash • I too agree with John
Tim Zoltie • In alot of cases this is often overlooked and any photographer instructed to photograph a claimant is simply put down as a special damage.When undertaken professionally by a specialist clinical photographer, it becomes an expert photographic report used as evidence and can therefore arguably be justified as a disbursement.
Michael Henry • It seems my vote went the same way as everyone else did on this so far. An interesting point comes to mind. If being classified as an expert report and therefore disbursements cost the question that will on any costs assessment or negotiations then arise is whether formal court permission was given by the court for the use of such expert. Could it be argued as incorporated within the permission for say the Orthopedic Consultant or plastic surgery medical expert if for example they make use of the same in considering the matter and preparation of their reports?
I am afraid my own experience on this aspect is modest but simply throw the thought out there. Do such experts routinely sub contract the taking of photographs they incorporate into their reports? which would presumably pick up the cost within their overall fee for the preparation of the report. I suspect the plastic surgeon report I got recently incorporated photographs taken by the plastic surgeon expert himself rather than utilising an expert clinical photographer.
John Wardley • I really don't like the phrase "no brainer" but IMHO it's one of those. If it is part of the evidence gathering process rather than a loss suffered by the claimant then it must form part of the legal costs rather than of the damages and as it's not solicitors' work delegated to an agent it must be a disbursement rather than profit costs. This would be the case whether using a specialist medical photographer or a good professional photographer who knows what is required. Use of lighting properly is essential to obtain the most accurate effect. I have never had such an item challenged on detailed assessment. But as ever happy to hear contrary views.
Robert Godfrey • I agree with John(above) on this. The photographs will be signed by the photographer and if needs be he/she could be called to give evidence like any other expert.
As such it should be a disbursement.
Sue Nash • I too agree with John
Andy Shaw • Absolutely agree with John. It is a disbursement as it is evidence not an item of loss. In my experience, such photographs can form part of the plastic surgeons evidence. If he or she takes or recommends that photographs are needed and is prepared to confirm the photographs are an accurate representation of the injury when the report was prepared, they can form part of his or her evidence.
Gary Knight • With John et al on this one
Michael Pace • but if the client had them taken and paid for them before seeing a solicitor then it can go in the specials. it really doesnt matter as one way or the other the defendant has to pay. some solicitors claim travel to see an expert in the specials, some put it in disbursements as a legal cost. only thing that matters is getting it paid for.
Michael Mylonas QC • Definitely a disbursement. Raises interesting questions about the use of photography (and icnreasingly of videos) in cases. Still photos can be edited very easily nowadays to emphasise certain features (reddening/inflammation is an obvioius one). In additon, some of teh more clued up clinicians will take photos during surgeries even if they are not instructed as experts because they realise that contemporaneous evidence of findings in surgery will be useful later. More likely in PI than in clin neg cases.
In the end of life cases we deal with the video evidence of nursing staff and family engaging with patients is often at the very heart of any judgment about treatment and best interests. Apologes for hijacking the thread butthe importance/value of photographic evidence is often overlooked.
Robert Godfrey • Not hijacking at all Michael, as you point out there are wider issues on this which is appropriate.
Pasha Alnadaf • Yes, I agree too. If the photos were taken by the Claimant at a cost then this is a special damage. If the photos were instructed by the solicitors then this is a disbursement.
Ashi Arora • I concur with Pasha.
Andrew Kirkpatrick • Sorry but I don't. No reason at all why it should not be a disbursement even if photos commissioned by claimant. There is caselaw to suggest that the claimant's travel costs to see an expert should be claimed as a disbursement and not as specials and the same applies here.
Tim Zoltie • Thank you for all your comments and good to see a general agreement across the board over this. I completely agree with Michael In that the importance of accurate and fair clinical photography is often overlooked. I'm currently writing an article on the importance of clinical photography in personal injury claims and would love to hear any feedback as to it's impact on cases they have dealt with. Please inbox me.
abdul hafezi • if you are referring to instruction from a lawyer, it is time recoverable and is not a disburtment.
Nik Ellis • We do a great deal of injury photography & it is almost always treated as a disbursement by our instructing solicitors.
Tim Zoltie • I have researched this a little further. For some clarification, The Civil Bill Assessment Manual (October 2003) by the Legal Services Commission (LSC) defines the regulatory framework for assessing fees to make a fair and reasonable assessment of costs claimed. They state there is clearly a varied amount of disbursements that can be made but must be reasonable to incur and must be reasonable in amount. Under section ‘3.17: Disbursements’; ‘authority may be sought to cover the preparation of a plan or photographs of either the injuries or property in connection with the proceedings'.
