In a significant ruling for litigators who deal with cases captured by the current fixed costs regimes, the Court of Appeal in Santiago v Motor Insurers’ Bureau  EWCA Civ 838 has ruled that the fees of a translator or interpreter were recoverable in a case which settled on the morning of Trial.
The dispute regarding the recoverability of the fees was one which arose following a successful personal injury claim brought by Mr Santiago, a Brazilian national who spoke Portuguese. His claim had been brought under Section IIIA of CPR 45 (those falling outside of the Pre-Action Protocol). At first instance, Deputy District Judge Sneddon, felt constrained by the Court’s previous decision in Cham (A Child) v Aldred  EWCA Civ 1780,  1 WLR 1276, and disallowed the fees, whilst acknowledging that her instinct told her otherwise. Permission to appeal was subsequently granted.
The Court in Cham, a case in which the central issue was the recoverability of Counsel fees for advice, had determined that in cases progressing under Section IIIA of CPR Part 45, those advice fees were not recoverable as a disbursement under CPR45.29I(h), which permits recovery of a disbursement which is “reasonably incurred due to a particular feature of the dispute.” Lord Justice Coulson, sitting in that matter, had went on to summarise that whether the Claimant was a child, or an individual who could not speak English, then those features were a characteristic of the Claimant, not the dispute, and therefore any provision for recovery of such fees were accounted for in the sums allowed for fixed profit costs, and no additional sums should be allowed as a disbursement.
Lord Justice Stuart-Smith determined that the comments by Lord Justice Coulson in Cham’ were strictly obiter, with the case determining the position in relation to Counsel fees for advice, and not fees of translators and interpreters. Therefore, the decision was not binding upon him.
He went on to determine that “by CPR 1.2(b), the Court “must” seek to give effect to the overriding objective when it interprets any rule. The first issue, therefore, is one of principal………it seems to me to be clear beyond argument to the contrary that an interpreter is essential if a person or witness who does not speak adequate English is to participate fully in proceedings or give their best evidence.”
LJ Stuart Smith went on to confirm that despite arguments on behalf of the paying party to the contrary, the fees of translators were not encompassed within Table 6B of CPR 45, which contains the specific provisions for recoverable Solicitor’s fees for cases under Section IIIA, and that “the fact that the provision of independent interpreting services will not be provided by a party’s solicitors or counsel as part of the provision of their legal services provides strong support for the submission that they must be recovered”.
The need for advice in cases involving minors or protected parties was distinguished from the need for an interpreter, on the basis that cases involving minors can still proceed to a settlement without the advice, and can still be endorsed by the individuals when they reach the age of majority, whereas “interpretation of sub-paragraph (h) that precluded the recovery of reasonably incurred interpreter’s fees in a case such as the present would not be in accordance with the overriding objective because it would tend to hinder access to justice by preventing a vulnerable party or witness from participating fully in proceedings and giving their best evidence.”
Whilst this ruling is one which will no longer be relevant to cases with a date of incident on or after 1 October 2023, and the new CPR 45.59 expressly permitting recovery of these fees, it will no doubt be most welcomed by litigators dealing with the runoff of cases still captured by the current regime.
It will also be interesting to see if the strong views on access to justice lead to a review of the recovery of translator fees in cases which proceed under the various Pre-Action Protocols, and in which these types of disbursements are currently not recoverable. No variations to this approach are encompassed within the new rules either.
Disbursement disputes on new fixed costs regime is one of the topics which will be discussed at our seminar on 6 September. The seminar will focus key issues in relation to the new rules, including practical guidance on the new banding and allocation rules. Click here for more information and to register to attend.
For further information on this decision, please contact Daniel Murray, who is an Associate in Clarion’s Costs and Litigation Funding Department and can be contacted at firstname.lastname@example.org.