Costs Litigation Blog

In this blog Jeremy McKeown looks at the decision in Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838.

Where an independent interpreter is essential to enable a party or witness to participate fully in proceedings or give their best evidence, the interpreter’s reasonable fee is recoverable as a disbursement under CPR r.45.29I(h) (‘any other disbursement reasonably incurred due to a particular feature of the dispute’). The overriding objective requires such a conclusion.

The Court of Appeal’s decision is important insofar as it distinguishes Cham (A Child) v Aldred [2020] 1 WLR 1276, until now the leading authority relied upon by courts (and Defendant counsel) to deny claimants the ability to recover interpretation and translation fees in cases subject to the fixed costs regime.

CPR Part 45, Section IIIA limits recoverable disbursements in RTAs, employers’ liability and public liability claims which start in the MOJ portal to only those specifically mentioned in CPR 45.29I. Neither interpreters’ nor translation fees are expressly named disbursements so are, without more, irrecoverable.

If a claimant wished to recover a disbursement other than those explicitly mentioned in CPR Part 45.29I they must convince a court that the particular disbursement falls within the ‘catch-all’ provision at sub-paragraph (2)(h): is this a disbursement that was “reasonably incurred due to a particular feature of the dispute”?

Until Santiago, it appeared that the Court of Appeal had excluded interpreters’ fees from the scope of that section, concluding that they were not a ‘particular feature of the dispute’. Why? Because in its earlier case of Cham the Court (per Coulson LJ) had examined what was meant by a ‘particular feature’ of a dispute and concluded the following (paras. 35-36) (emphasis added):

“35. … The fact that, in a particular case, a claimant is a child, or someone who cannot speak English, or who requires an intermediary, is nothing whatever to do with the dispute itself. Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute.

36. The particular features of the dispute in an RTA claim will commonly be matters such as: how the accident happened, whether the defendant was to blame for the accident, the nature, scope and extent of the injuries and their consequences, and other matters of that kind. For example, the particular circumstances of the accident may be sufficiently unusual to require an accident reconstruction expert, or the injuries may be so complex that they require a number of different experts’ reports. Such additional involvement of experts may also require specific advice from counsel. Depending always on the facts, such costs may be said to be a disbursement properly incurred as a result of a particular feature of the dispute.”

In short, the Court of Appeal had drawn a distinction between matters relating to a characteristic peculiar to the dispute (rather than the claimant personally) – for example, how an accident happened, the nature of the injuries etc. – which could fall within CPR Part 45.29I(2)(h) and might be recoverable, versus a characteristic peculiar to the claimant personally – such as whether they were a child or did not speak English.

The latter was not a feature of the dispute but instead was a feature of the claimant, the thinking being that those characteristics would be common to that claimant whether they were fighting this dispute or any other.

The Court of Appeal in Santiago disagreed. In doing so, it all-but reversed (by distinction) the previous decision in Cham. At the very least, this recent decision moves away from how courts and parties have interpreted and applied Cham to the recoverability of interpreters’ fees.

The result? In bad news for defendants, interpreter and translation fees are now evidently recoverable as ‘a particular feature of the dispute’ under CPR Part 45.29I(2)(h).

Decision

On appeal, Stuart-Smith LJ decided:

1. First, the Court in Cham had had to decide only whether counsel’s fee for the advice required for settlement in a case involving a child was a ‘particular feature of the dispute’. It decided it was not. However, the Court’s comments at para. 35 (above) about whether that also applied to those who did not speak English were strictly obiter [at 55].
2. Second, since Cham was decided the CPR has been amended in several places to include language which might have forced the Court to approach the question differently. In particular, the ‘vulnerability’ of a witness who cannot participate meaningfully in proceedings if they cannot speak English [at 39-42]:
   • The 2021 Amendments added to the overriding objective at CPR Rule 1.1(2)(a). It now provides that dealing with a case justly and at proportionate costs includes, so far as is practicable “ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence”;
   • New Practice Direction 1A is headed “Vulnerability” and includes provisions which record that the overriding objective requires consideration of a participant’s vulnerabilities. A person should be considered vulnerable where a factor – which could be personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence. One example given at 1APD 4(b) is “communication or language difficulties (including literacy)”;
   • The 2021 Amendments introduced an amendment to the general costs provisions under CPR Part 44 to the effect that costs are proportionate if they bear a reasonable relationship to any additional work undertaken or expense incurred due to the vulnerability of a party or witness. It should, however, be noted that nothing is said in the 2021 Amendments to change the wording of the fixed costs regimes under CPR Part 45 or about how that Part should be interpreted.
3. Third, in addition to recent changes to the CPR, there is one future proposed amendment. In March 2023, the CPR Committee approved draft amendments for the implementation of an extended fixed recoverable costs regime. Now included are express provisions relating to recovery of interpreters’ fees. Whilst that could not influence how the Court interpreted the rules as they currently are, it means that the decision in Santiago would be somewhat limited and will become redundant if and when those changes are adopted.
4. Fourth, the Court ‘must’ seek to give effect to the overriding objective. Now that the CPR 1.1(2) wording mandates that the court ensure ‘parties can participate fully in proceedings and that parties and witnesses can give their best evidence’, it is “beyond argument… that an interpreter is essential if a person of witness who does not speak adequate English is to participate fully or give their best evidence” [at 56].
5. Fifth, rejecting MIB’s submission to the contrary, if interpreter’s fees are not recoverable, they simply become “an additional expense that will fall upon the vulnerable party or their solicitor”. There will be a financial disincentive to a claimant’s solicitor to take their case if that fee falls to the solicitor and cannot be recovered. If it falls on the vulnerable party it may have the same effect. It is therefore an access to justice question [at 58].
6. Sixth, it is possible – in terms of access to justice – to distinguish Cham (the question of denying counsel’s fee for an advice in a claim involving a child) from this case (the denial of translation or interpretation fees). Where the former counsel’s advice is required, the matter has already settled and the advice is needed for the court to approve the settlement. In the latter, the matter is ongoing and without the services of an interpreter the party who cannot speak English is precluded from having access to the court [at 59].
7. Seventh, it is possible to distinguish Cham further. Are both ‘fees’ (counsel’s fee for an advice versus interpreter’s fees) comparable? No. On the one hand, counsel’s opinion in Cham was said to have been remunerated elsewhere in the fixed costs rules. It was held that counsel’s opinion formed part of the fixed costs in Table 6B (distinct from disbursements in CPR 45.29I) and was therefore not recoverable separately as a disbursement under CPR 45.29I(2)(h). The rationale was that Table 6B costs cover charges for all legal representatives (i.e. solicitors and counsel) [at 11]. By contrast, the interpreter’s fee clearly did not fall within Table 6B – not being legal representative costs – and so if it was not recoverable as a disbursement, it would not be recoverable at all [at 59].
8. Eighth, the “most striking feature” of the decision in Cham is that there is no mention of the overriding objective. The Court “distinguished” the earlier case by speculating that the Court in Cham would surely have referred to it unless it had considered that the facts of that case did not engage the principle of access to justice (the writer makes no comment on the plausibility of that conclusion). In contrast, Santiago required consideration of the overriding objective. Consequently, the conclusion reached in Cham was not “open to [the Court] in the present case” [at 63].
9. Finally, “the 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” [at 64].

Comment

By what might diplomatically be described as a dexterous and skilful contortion, the Court of Appeal in Santiago decided it could distinguish Cham in such a way that counsel’s fees for the mandatory advice (which were disallowed in Cham) differed from interpreters’ fees.

It appears that Cham still stands and counsel’s fees for advice – even advice required under the rules for the approval of an infant settlement – continues to be irrecoverable. That is not a ‘particular feature of the dispute’ but should be considered to fall within the fixed costs at Table 6B, being fixed costs relating to all legal representatives’ costs in the claim.

However, by contrast interpreters’ fees do not form part of Table 6B. In light of the rewritten overriding objective and the new PD 1A defining ‘vulnerability’, and to ensure access to justice, the interpreter’s fee is recoverable pursuant to CPR 45.29I(2)(h) as ‘a disbursement reasonably incurred due to a particular feature of the dispute’.

Practice points

• Defendants can no longer point to Cham at the costs assessment stage of fixed cost trials to deny claimants recovery of interpretation or translation fees.
• There is no suggestion that it is limited fees at trial. The principle will presumably apply to the cost of interpretation of witness evidence and other documents and, where necessary, the interpreter’s attendance at pre-trial conferences.
• Since CPR 45 does not fix the cost of interpretation fees, defendant representatives would be well-advised to concede the point in principle but, where appropriate, challenge the sums claimed.
• Interpreters’ rates can vary wildly so it would be sensible for insurers or solicitors to consider whether the sums claimed are unreasonable. The court is unlikely to accept that argument without hard figures offering a suitable comparison at cheaper cost. A few pages outlining two or three alternative rates for similar work would be especially helpful.
• It may even be possible for defendant representatives and insurers to produce a pro forma document setting out hourly or daily rates by region obtained from several reputable translation agencies. This document would be ‘ready to go’ and could be easily served in advance or – if the statement of costs is not served ahead of time – handed-up during costs assessment to support the submission that the rates claimed are unreasonable.