Fixed costs and translation fees

Fixed costs cases tend to resemble London omnibuses, in that after a period of time waiting that seems measured in months, three arrive together.

The case of Aldred v Master Tyreese Sulay Alieu Cham [2019] EWCA Civ 1780. forms part of the trinity. The case is concerned with the interpretation of section IIIA of part 45 CPR and in particular terms whether counsel’s fee for an advice in a personal injury case involving a child’s claim was recoverable from the paying party or not.

The actual significance of the case is wider: in particular it raises serious questions about the recovery of translators/interpreters fees, and thus a clear point as to whether the rules as drafted have an indirectly discriminatory effect, against litigants who don’t have English as a first language.

3. The issue that arises in the present case concerns the recoverability of the cost of counsel’s advice as to the quantum of the proposed settlement of the RTA claim, in a case where the claimant is a child. The question for this court is whether that is a claim for a disbursement which should be allowed (in addition to the fixed recoverable costs) because, in the words of the relevant rule, it was “reasonably incurred due to a particular feature of the dispute”. That simple question is then said to raise other issues, some arising out of the use of similar wording in other parts of the fixed recoverable costs regime.

The defendant lost before District Judge Hale (the regional costs judge) who ruled the fee was recoverable:

9. There was an oral assessment on 10 August 2018. District Judge Hale did not change his view that the cost of the advice was recoverable in addition to the fixed costs. This was principally because the relevant rules (noted in paragraph 6 above) required an advice to be obtained for the purposes of a settlement involving a child. He said at paragraph 34:

“This is a particular situation where the rules require a particular piece of work to be done. There is no discretion about it. It can be done by solicitor or counsel, but the solicitor is not bound to take one course or the other. It seems to me that the fact the claimant is a child is a particular feature of the dispute which entitles and indeed requires the court to look to the exception to decide whether or not it is recoverable.”

The defendant then lost on appeal before HH Judge Owen QC:

10. The appellant appealed. The appeal was heard by HHJ Owen QC at Nottingham County Court on 21 December 2018. Judge Owen came to the same view as District Judge Hale. The heart of his decision is paragraph 21, which was in the following terms:

“Since an advice on valuation in certain cases is required there must be provision within section 111A which allows for the recovery of such fees. I am not persuaded that it would be permissible to draw the inference, which underpins the Defendant’s argument, to the effect that such fees are implicitly provided for within the fixed recoverable costs allowed under this section. I do not consider that rule 45.291(2)(h) refers to a disbursement other than counsel’s (or as appropriate, a solicitor’s) fee for an advice on valuation. Not all cases under section 111A will concern child claimants. If the claimant is a child, the need to obtain counsel’s advice on valuation would constitute a particular feature of the dispute. There is no justification for implying that those fees, when incurred, are already provided for within the fixed recoverable costs. The fact that counsel’s fees are expressly provided for under sections II and III in addition to the provision for any other disbursement(s) does not of itself admit to the inference argued for by the defendant. On the contrary, it seems to me that the absence of such express reference within section IIIA to these fees support the District Judge’s conclusion. Clearly, where reasonably incurred there must be provision for the recovery of those fees. Since they are not otherwise expressly provided for or referred to it is clear, in my judgment that the provision for “any other disbursement reasonably incurred due to a particular feature of the dispute” under rule 45.291(2)(h) must include the fee in question. There is no need or room within the structure or content of section IIIA to infer that that fee is provided for within the fixed costs identified in Table 6B.”

The defendant then went on to obtain vindication in the Court of Appeal. The actual provision in play was then set out by Coulson LJ in his judgment:

29. The provisions in respect of disbursements is at rule 45.29I(1) and (2). The rules are as follows:

“45.29I
(1) Subject to paragraphs (2A) to (2E), the court—

(a) may allow a claim for a disbursement of a type mentioned in
paragraphs (2) or (3); but

(b) will not allow a claim for any other type of disbursement.

(2) In a claim started under the RTA Protocol, the EL/PL Protocol or the Pre-Action Protocol for Resolution of Package Travel Claims, the
disbursements referred to in paragraph (1) are—

(a) the cost of obtaining medical records and expert medical reports as provided for in the relevant Protocol;

(b) the cost of any non-medical expert reports as provided for in the relevant Protocol;

(c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;

(d) court fees;

(e) any expert’s fee for attending the trial where the court has given permission for the expert to attend;

(f) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of
attending a hearing;

(g) a sum not exceeding the amount specified in Practice Direction 45 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purpose of attending a hearing; and

(h) any other disbursement reasonably incurred due to a particular feature of the dispute.” (Emphasis supplied)

30. Both District Judge Hale and HHJ Owen QC allowed counsel’s fee for the advice on settlement under r.45.29I(2)(h), on the basis that it was a disbursement “reasonably incurred due to a particular feature of the dispute”. Although that wording is slightly different to the wording of the catch-all at r.45.12(2)(c) and r.45.19(2)(e) set out above (as Lady Justice Nicola Davies pointed out during the hearing), it does not seem to me that, on analysis, the slight alteration to the wording makes any difference to the issues before this court. The earlier iterations omit the words “reasonably incurred”, but a disbursement which had not been reasonably incurred ought not to be allowed by the court in any event.

He continued after discussing some conflicting judgments from HH Judge Wood QC and Master Campbell on the correct approach:

35. Having considered these careful judgments, I prefer the approach of HHJ Wood QC. 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.

It is questionable whether the comments on linguistic ability are part of the ratio of the case: I would suggest they are characterised as obiter dicta, given that there is no suggestion in the case that the issue of language had any role to play in the dispute over fees.

37. In contrast, the cost of counsel’s advice in the present case was not necessitated by any particular feature of the dispute, and was instead required because it is an almost mandatory requirement in all RTA cases where the claimant is a child. It was therefore caused by a characteristic of the claimant himself and does not fall within the exception.

Is this interpretation correct? The short answer is of course it is as the Court of Appeal’s decision and it’s ratio is binding, absent a trip to the Supreme Court. 

Moreover, as the fixed fees are paid to represent the lawyers fee for services rendered, it would circumvent the fixed costs regime, by a solicitor being able to outsource work to counsel, and claim those fees as one of his disbursements.

But the ratio, is in my view flawed.

Let me concentrate on the remarkable conclusion that interpreters fees are to be paid from fixed costs.

First, one notes that if fixed costs are intended to pay for interpretation services, that fits uneasily with the notion that the fixed costs represent lawyers remuneration. Though it does raise the intriguing prospect of solicitors blessed with holiday Spanish and pigeon Portugese, manfully stepping up to the plate to provide the interpretation services as part of a one-stop-shop-swings-and-roundabouts consequence of the judgment. Interpreters services are I think readily conceptually distinct from legal services.

Secondly, I regard the notion that there is a sensible distinction to be drawn between a feature of the claimant and a feature of the dispute as plain wrong.  It is just as logical to suggest that the litigant is perfectly capable of giving evidence in the case and putting forward documents-in his own language-but it is a requirement of the Civil Procedure Rules that the way his dispute must be litigated in an English court, a feature of the dispute if you like, is  that his documents be translated into English and a requirement of English law that he gives his evidence in English to a judge who requires to be addressed in that language.

Thirdly, the conclusion reached in this case, I would suggest, indirectly discriminates on grounds of race, against those litigants who will now presumably have to pay interpreters fees out of their own pocket, and will thus find in consequence that they recover less in net terms, by way of damages, than other litigants who have fluency in English. Although liability under section 29 of the Equality Act 2010 is excluded  for the drafting of a discriminatory statutory instrument by exceptions contained within the Equality Act 2010, it is not necessary to go so far as to argue that the measure itself is unlawful. Rather it seems to me that the better argument is that articles 6 and 13 of the ECHR, require the court under section 3 of the Human Rights Act 1998 to seek for a non-discriminatory construction to be given to these rules; which in this context is easily capable of formulation and would remove the mischief.

Fourthly, the further oddity of this decision is that under section 20 of the Equality Act 2010, I regard it is as reasonably clear law that a statutory duty to make reasonable adjustments is imposed on the Ministry of Justice so that a disabled person attending court with language/speech difficulties is provided with assistance: and thus there is imposed on government a positive obligation to provide and fund interpretation services as required: the most obvious example would be a deaf person who requires an interpreter familiar with British Sign Language (BSL). Why are other litigants to be treated less favourably?

Fifthly, even under the old fixed costs rules, which pertained pre-1999 in my treasured copy of the County Court Practice 1998, rule 16 of the former Order 38 of the County Court Rules 1981 provided that interpreters fees were never regarded as part of the fixed costs:

16(1). Subject to paragraph (2), where on the trial or hearing of an action or matter a person attends the court for the purpose of interpreting evidence, there may be allowed in respect of his attendance such sum as might be allowed if he had attended the court as a witness of fact or, if the judge thinks fit, such sum as might be allowed if he had attended the court as an expert witness.

(2) Nothing in paragraph (1) shall apply to an interpreter who is employed and remunerated in accordance with rules made under section 3 of the Welsh Courts Act 1942.

Sixthly, and drawing from the above rule, the oddity is that Welsh speakers will be better off than English ones.By 1998 the Welsh Courts Act had been long since repealed and replaced by section 24 of the Welsh Language Act 1993 which reads:

24 Provision of interpreters.

(1)The Lord Chancellor may make rules as to the provision and employment of interpreters of the Welsh and English languages for the purposes of proceedings before courts in Wales.

(2)The interpreters shall be paid, out of the same fund as the expenses of the court are payable, such remuneration in respect of their services as the Lord Chancellor may determine.

(3)The Lord Chancellor’s powers under this section shall be exercised with the consent of the Treasury.

The consequence is that a Welsh person, or more accurately someone in Wales who wants their case heard in Welsh, is entitled to have an interpreter present: to translate from Welsh to English for the benefit of the (probably non Welsh-speaking) judge.

The Ministry of Justice correctly notes the position here: https://www.gov.uk/get-interpreter-at-court-or-tribunal.

It accordingly seems strange and anomalous, that a deaf person, or a Welsh person who brings a modestly valued personal injury claim caught by part 45 CPR will benefit from state funded interpretation services and litigate with no liability for interpreters fees, but an indigent non-English speaker who similarly cannot make themselves heard without an interpreter, will not.

It might be thought that leaving aside the dubious construction afforded to the Civil Procedure Rules 1998 , remedial action is promptly required by the Ministry of Justice under the public sector equality duty contained in section 149 of the  Equality Act 2010 to avoid enraged linguistically challenged litigants of varying ethnic backgrounds from taking judicial review proceedings accordingly, or for the matter to be litigated in another case, with Aldred then being distinguished and limited to its facts.

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