Interpreters’ fees are recoverable as a disbursement in personal injury fixed costs cases, without which solicitors may not take on cases for clients who cannot speak English, the Court of Appeal has ruled.
Saying that a claimant needing an interpreter to take part in a trial met the test of vulnerability now in the CPR, Lord Justice Stuart-Smith said many cases had been stayed pending the ruling.
The road traffic claim brought by a Brazilian with “a poor grasp of English” settled for £20,000 but Deputy District Judge Sneddon said she was constrained by the Court of Appeal’s 2019 ruling in Cham (A Child) v Aldred so that she could not allow recovery of the interpreter’s fee of £924.
The judge gave permission to appeal and His Honour Judge Hellman transferred the appeal to the Court of Appeal.
In Cham, which concerned whether a child claimant could recover the cost of counsel’s quantum advice, Lord Justice Coulson held that he could not and that it was included with the fixed costs.
He said that “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” – they were characteristics of the claimant.
Since then, Stuart-Smith LJ observed, the new vulnerability rules had been added to the overriding objective.
He went on: “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)… 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 judge – giving the unanimous ruling of the appeal court – found “no basis for a submission that the costs of an interpreter are included” in the fixed costs for lawyers set out in table 6B of CPR 45.29.
Rather, they were a “disbursement reasonably incurred due to a particular feature of the dispute”, as per CPR 45.29(I)(2)(h).
“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.”
Stuart-Smith J distinguished Cham, saying first that the absence of counsel’s opinion would not affect a child’s access to justice, and second that the cost of the opinion was deemed to be remunerated because it was 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.”
If that were the case, he went on, “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.”
Stuart-Smith added that the court in Cham did not consider the implications of disallowing the interpreter’s fee when viewed through the prism of the overriding objective.
Interpreters’ fees are expressly included as disbursements in the new fixed costs rules coming into force on 1 October.