INTEPRETERS’ FEES ARE RECOVERABLE IN THE FIXED COSTS REGIME: COURT OF APPEAL DECISION

In Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838 the Court of Appeal held that the costs of interpreters are recoverable under the fixed costs regime.  It is an indictment of the wholly inadequate thought given to the fixed costs provisions that this appeal had to be brought.  It was a result of wholly inadequate drafting.  The desire to ensure that “one size fits all” meant that little (probably no) consideration was given to what was to happen when a litigant required a translator.

“I would therefore hold that an 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. I would go further and say that it would not be in accordance with the objective of ensuring that the parties are on an equal footing, for essentially the same reasons.”

THE CASE

The claimant had been successful in a personal injury case that was subject to the fixed costs regime. The case had settled on the morning of trial. An interpreter had attended trial.  The Deputy District Judge held that her instinct was to allow the costs of the interpreter, however she felt bound to find that a person’s lack of linguistic ability did amount to “a particular feature of the dispute”.

The claimant’s appeal was remitted directly to the Court of Appeal, there being numerous cases that were stayed pending the ruling.

THE COURT OF APPEAL DECISION

Lord Justice Stuart-Smith held that the interpreter’s fees were recoverable under the fixed costs regime.

1. 1. For reasons that I will explain below, I do not accept that Cham was decided per incuriam. It is therefore essential to identify at the outset that the issue in Cham was whether the fee for counsel’s advice on settlement was a recoverable disbursement within the meaning of sub-paragraph (h). As set out above, the Court of Appeal held that it was not (Issue 1) and that, even if it were, it should not be recoverable because it was already included in the fixed recoverable costs provided for in Table 6B (Issue 2). The Court in Cham was not required to rule on the recoverability of interpreter’s fees and, to the extent that [35] of Cham appears to exclude the possibility of an interpreter’s fees being recovered as a disbursement, I consider that it was strictly obiter.

1. 1. 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 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.

1. 1. As I have already indicated at [11] above, there is no basis for a submission that the costs of an interpreter are included in Table 6B. The broad division that permeates CPR Part 45 is between lawyers’ fees, which (subject to specific exceptions) are remunerated by the fixed recoverable costs, and disbursements that are not lawyers’ fees, which must be recovered, if at all, under the provisions for disbursements. 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, if at all, under sub-paragraph (h): see the standard directions set out at [5] above. The question of “swings and roundabouts” under the fixed costs regime therefore does not arise.

1. 1. I reject the MIB’s submission that the question of interpreter’s fees does not involve a question of access to justice. Since the fees of an independent interpreter are not remunerated as part of the fixed fees for the provision of legal services, they are an additional expense that will fall upon the vulnerable party or their solicitor. The MIB is correct to say that we have no evidence of how the question is dealt with in retainers; but it is possible to consider the question in the abstract. If the fees of an independent interpreter fall upon the solicitor, they will act as a financial disincentive to a solicitor who is contemplating whether or not to take on the case of someone who cannot speak adequate English. If they fall upon the vulnerable prospective party, they may have the same disadvantageous effect on her or him, whether they are to be paid up front or from any damages that may be recovered. It is no answer to say that there may be insurance available to the party. We have no evidence about the ease with which or the terms on which such insurance may be available. That being so, the reference to insurance only serves to emphasise the significance of the potential outlay for the individual party.

1. 1. The question then arises: what, if anything, is the difference in terms of access to justice between counsel’s fee for an opinion in a child’s case and the fee of an independent interpreter? To my mind there are two distinctions, which are fine but critical. First, by the time that counsel’s opinion is required, the claim will have settled or settlement will be in the offing, whether proceedings have been issued or not. If there is no opinion the claim can proceed to judgment without impediment and with the parties on an equal footing, or the settlement can be concluded (but not approved by the Court) with the child having the option of adopting or repudiating it on achieving their majority. The child’s access to justice is therefore secured. By contrast, without the services of the interpreter the claimant (or witness) who cannot speak or understand English is precluded from having access to the court that will permit them to participate fully on an equal footing and to give their best evidence. Second, the cost of the opinion is deemed to be remunerated because it is included in Table 6B. By contrast, if the interpreter’s fee is not recoverable as a disbursement, it is not remunerated at all, either actually or notionally.

1. 1. I would therefore hold that an 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. I would go further and say that it would not be in accordance with the objective of ensuring that the parties are on an equal footing, for essentially the same reasons.

1. 1. That conclusion would not justify allowing the present appeal if the application of normal principles of interpretation precluded it or we were bound by Cham to take a different view. I deal with these points in turn.

1. 1. I accept Mr Williams’ submission that the words “the dispute” are capable of bearing the broader construction for which he contends i.e. one which is not simply the mutually exclusive opposite of “the claimant” for the two main reasons he gives, which I have summarised at [46] above. First, analysis of the varying uses of the word “dispute” in the rules lends no support to a single exclusive meaning being attributed to it in the present context. Second, the use of the word “other” in sub-paragraph (h) supports the broader interpretation because it implies that the travel expenses and loss of earnings incurred by a party and allowed under sub-paragraphs (f) and (g) are disbursements that are “due to a particular feature of the dispute.” The common feature of such costs is that they facilitate the attendance of a party or witness and thus put the parties on an equal footing by enabling the party or witness to participate fully in the hearing. That is also a defining feature of the cost of an interpreter, without whom the party or witness cannot participate fully in the hearing and, specifically, cannot give their best evidence. Allowing the interpreter’s fee to be recovered under subparagraph (h) is therefore consistent with the inclusion of the disbursements allowed under sub-paragraphs (f) and (g). I would therefore hold that the application of normal principles of construction does not preclude the interpretation of sub-paragraph (h) for which Mr Williams contends. Far from it: in my judgment, the application of normal principles strongly supports his proposed interpretation. I would have reached this conclusion before the 2021 Amendments. The effect of the 2021 Amendments is to clarify and reinforce the overriding objective and, thereby, to make express the obligation of the Court to interpret the provisions with which we are concerned so as to enable a party or witness to participate fully and to give their best evidence.

1. 1. Turning to Cham, the first and most striking feature of the decision is that there is no mention of the overriding objective which, even then, required the Court so far as possible to put the parties on an equal footing and to deal with the case fairly. Although the terms of the overriding objective have since been clarified and reinforced, it is difficult to accept that the Court in Cham would not have referred to the overriding objective unless it considered that the facts of that case did not engage the principles of access to justice that I have discussed above. I have identified at [59] above what I consider to be the two critical points of distinction between counsel’s opinion and the fees of an interpreter when considered through the prism of access to justice. What appears clear is that the Court in Cham did not have to consider, and did not expressly consider, the implications of disallowing the interpreter’s fee when viewed through that prism; and, for the reasons I have given, counsel’s fee for the opinion did not raise the same issues as those that arise in this case. These points of distinction, to my mind, provide the key to answering the questions (a) whether Cham was decided per incuriam and (b) whether we are bound by Cham to dismiss the present appeal. The Court in Cham may have concluded that an opinion of counsel was not required in order for the child to have access to the Court to resolve their claim. That, in my judgment, is not a conclusion that is open to us in the present case when considering the interpreter’s fee.

1. 1. This distinction permits us to conclude that we are not bound by Cham to adopt an interpretation of sub-paragraph (h) which is not in accordance with the overriding objective on the different facts that are in play in the present appeal. I would accept that the effect of Cham is that a disbursement should ordinarily be held to be “reasonably incurred due to a particular feature of the dispute” within sub-paragraph (h) if it was required to enable the determination by the Court of a particular issue in the case rather than because of a particular characteristic of a party or witness. However, where considerations of access to justice arise, a broader interpretation is necessary to enable the dispute to be determined by the Court in accordance with the overriding objective. It follows, in my judgment, that the independent interpreter’s fee (assuming it to be reasonably incurred) is properly to be regarded as a disbursement falling within sub-paragraph (h).

1. I would allow the appeal on this basis. It follows that it is not necessary to rule on Mr Williams’ submissions on Articles 6 and 14 and I do not do so.