This judgment stems from the case of Santiago -v- Motor Insurer Bureau [2023] EWCA Civ 838. The Claimant retained the services of an interpreter for Trial (which settled on the morning of the hearing). The DJJ in the initial instance felt constrained by the Court of Appeal decision in Cham (A Child) v Aldred [2019] EWCA Civ 1780, [2020] 1 WLR 1276 [“Cham”] in that she had no discretion in the matter and held that a person’s lack of linguistic ability could not be regarded as a “particular feature of the dispute” within the meaning of sub-paragraph (h). However, the DJJ gave permission to appeal on the basis that it was a fairly common issue.
Upon consideration of the issue, the Court placed considerable weight on the overriding objective and the need for the Court to place parties on equal footing and to allow a party to participate fully in proceedings and so that the parties and witness can give their best evidence. The Court stated that, “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.”
The Court rejected the argument that Table 6B included the costs of the interpreter fee and concluded 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…”
The Court also rejected the Defendant’s argument that the case did not involve a question of access to justice as the interpreter fees fall outside of the fixed fee provisions and will therefore be expenses which fall upon the vulnerable party or their solicitor. This is therefore an access to justice issue as, it will therefore act as a financial disincentive to a solicitor who is contemplating whether or not to accept instructions from a party who cannot speak adequate English.
The Court thereafter considered the position of the recovery of Counsel fees in child cases and interpreters fees and stated:
“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”.
In considering the case of Cham, the Court stated that they were surprised there was no mention of the overriding objective, and stated on the facts of that case, the Court may have concluded that an opinion from Counsel was not required in order for the child to have access to justice.
On the basis of the above, and the distinctions between Cham and the current case, the Court conclude that they were not bound by Cham (i.e. to adopt an interpretation which was, in their view, not in accordance with the overriding objective) and, as such, they deemed the costs incurred in respect of the Interpreter Fees recoverable in addition to the Fixed Costs.
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