Santiago v. Motor Insurers Bureau [2023] EWCA Cib 838 – judgment dated 13/07/2023
The Court of Appeal has allowed the recoverability of an interpreter fee in a personal injury claim to which the current fixed-recoverable cost (FRC) regime applies.
The background was that Mr Santiago, a Brazilian national who speaks Portuguese and has a poor grasp of English, was involved in a road traffic accident in 2018. In 2021 he issued proceedings against two defendants, claiming damages for personal injuries and financial losses. An independent interpreter was booked and attended to provide translation services before the trial began and, as necessary, to interpret during the trial.
In the event, Mr Santiago and the Motor Insurers’ Bureau (MIB) agreed terms before the trial started, and those terms were recorded in a Tomlin Order. The settlement figure was £20,000. Mr Santiago’s solicitors’ recoverable fees were fixed and uncontroversial. It is only the claim for the interpreter’s fees that was resisted.
The Court of Appeal judgment was the outcome of two material developments following the previous Court of Appeal judgment in Aldred v. Cham [2019] EWCA Civ 1780, which had resulted in the very unsatisfactory position of largely preventing the recoverability of interpreter and translator fees within the current personal injury FRC regime.
First, we now have the amendment to the Overriding Objective coupled with the new Practice Direction 1A on vulnerability. The Court of Appeal therefore now recognised that “An inability to speak or understand the language of the proceedings falls squarely within this approach to vulnerability.”
Second, the prospective changes to the Civil Procedure Rules from October 2023 were considered for the new FRC regime, and in particular the express recoverability in the new regime for translator/interpreter fees in the fast track.
As a result of these two key developments in particular, the Court of Appeal ruled that the interpreter’s fees were recoverable. In this very welcome judgment which promotes access to justice, there were several key judicial comments:
Paragraph 57: “There is no basis for a submission that the costs of an interpreter are included in Table 6B”. (Current FRC regime).
Paragraph 58: “I reject the MIB’s submissions that the question of interpreter’s fees does not involve a question of access to justice.”
Paragraph 60: “I would therefore hold that an interpretation of sub-para (h) that precluded the recoverability 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.”
In conclusion, the Court of Appeal ruling confirms that ‘reasonably incurred’ interpreter and translator fees are properly to be regarded as disbursements within rule 45.29I(2)(h) of the Civil Procedure Rules. It is also welcome that the new FRC regime applied from this autumn will include the express recoverability for translator/interpreter fees in the fast track.
Prior to this judgment, ACSO had raised concerns with the Civil Procedure Rules Committee (CPRC) that there was a risk that the recoverability of interpreter/translator fees specifically for personal injury cases that remained within the MOJ claims portal was not express in the new FRC regime (compared to all other fast-track cases), therefore potentially inviting recoverability challenges from paying parties.
ACSO understands that this issue has been considered by the relevant sub-committee of the CPRC, however it has not been felt that the new FRC framework needed revisiting. However, we hope the Court of Appeal judgment from Santiago will now deter paying parties from raising arguments in future as to recoverability of these fees.
Author: John Cuss, ACSO Senior Advisor