PI Brief Update

Interpreters’ fees can be recoverable under the fixed costs regime - Anisa Kassamali, Temple Garden Chambers

30/07/23. The fixed costs regime pursuant to CPR r.45 is very familiar territory to personal injury practitioners. In Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838, the Court of Appeal considered whether an individual can recover the costs of interpreters’ fees under that regime.

Background

The appellant had issued personal injury proceedings against an uninsured driver and the Motor Insurers’ Bureau (the “MIB”) following a road traffic accident. He spoke Portuguese and had a poor grasp of English. His witness statement was prepared in Portuguese and translated into English by his solicitors’ employee. The solicitors booked the services of an independent interpreter for the trial, but a settlement was reached in advance of this.

The appellant’s solicitors’ fees were fixed and calculated in accordance with CPR r.45 (and included the cost of translating the statement). The deputy district judge disallowed the interpreter’s fees as a disbursement on the basis that a person’s lack of linguistic ability did not fall within CPR r.45.29I(h). CPR r.45.29I(h) provides that claims for disbursements are allowed where they are ‘reasonably incurred due to a particular feature of the dispute’. That decision was, in her view, the application of the binding authority of Aldred v Cham [2019] EWCA Civ 1780).

The appellant appealed this decision.

Decision

The Court of Appeal allowed the appeal. It considered a number of factors when reaching its decision, including the following:

· Vulnerable witnesses: A party’s inability to speak or understand the language of proceedings fell within the approach to vulnerability as provided for in the report of the Civil Justice Council (the “CJC”) entitled “Vulnerable Witnesses and Parties within Civil Proceedings/Current Position and Recommendations for Change” (published after the decision in Aldred v Cham). It followed that the appellant was a “paradigm example of someone who should be treated as vulnerable (as that term is used in the CJC Report) and for whom steps would need to be taken to enable him to have effective access to justice” [36].

· Overriding objective: The Court of Appeal held that it was “clear beyond argument to the contrary” that an interpreter was required to assist a person who did not speak adequate English to participate fully in the proceedings or to give their best evidence at [56]: “By CPR r.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 principle: does the overriding objective affect the interpretation that we should place upon sub-paragraph (h)? In my judgment it is clear that it does. Even before its amendment, rule 1.1(2)(a) and (d) established the objective of ensuring that the parties are on an equal footing and that the case is dealt with fairly. Now there is the added express obligation on the court to deal with a case, so far as practicable, so as to ensure that “the parties can participate fully in proceedings, and that parties and witnesses can give their best evidence”. It follows that the Court is obliged to seek to give effect to that objective when interpreting sub-paragraph (h). Subject to the MIB’s submission that the costs of the interpreter are included within the allowance made by Table 6B, 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.”

· Access to justice: The fees of an independent interpreter were an additional expense that fell upon the vulnerable party or their solicitor and so acted as a financial disincentive to bringing proceedings. A witness who did not speak English well was precluded from having access to the court that would permit them to participate fully on an equal footing and to give their best evidence. The position had different in Aldred v Cham as the child’s access to justice was secured by the fact that they had the option of adopting or repudiating the settlement on attaining their majority.

· Statutory interpretation / effect of Aldred v Cham: The Court of Appeal observed that the conclusion that CPR r.45.29I(h) should not be interpreted so as to preclude the recovery of reasonably incurred interpreter's fees in this case would not justify allowing the appeal if the application of the normal principles of interpretation precluded it or the court was bound by Cham to take a different view. However, neither of those were the case ([61 – 64]).

Image ©iStockphoto.com/sodafish