Santiago v MIB

The Court of Appeal recently determined that interpreter and translation fees are recoverable in the handing down of their judgment in Santiago v MIB [2023] EWCA Civ 838.

The appeal was prompted by the initial ruling of DDJ Sneddon in August 2022. In that ruling, DDJ Sneddon denied the Claimant’s costs claim for interpreter fees, citing the guidance provided by Lord Justice Coulson in the Aldred v Cham [2019] EWCA Civ 1780. Although she acknowledged that the guidance was persuasive rather than legally binding, she granted permission to appeal.

Aldred v Cham

The case of Aldred v Master Tyreese Sulay Alieu Cham was an RTA personal injury claim. The dispute was not in relation to the recoverability of translation fees, but for the recoverability of Counsel fees in a fixed costs case under Part 45 CPR for advising on an infant settlement.

It was determined that the fees for Counsel were not eligible for recovery in addition to fixed fees under the fixed recoverable costs regime. This decision was reached because, the fact that the Claimant was a child was not considered to be a disbursement reasonably incurred due to a particular feature of the claim as required by CPR 45.29I(h), but rather, it was deemed to be a “characteristic of the claimant” according to Lord Justice Coulson.  This led to the rather absurd outcome that Counsel’s advice fees could be recovered if the matter remained on the Portal (which specifically allowed recovery of Counsel’s advice fee in infant cases), but not if it had left the Portal process.

Lord Justice Coulson stated;

“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”.

Under the fixed costs rules in CPR 45.29I(H), claimable disbursements should be:

 “reasonably incurred due to a particular feature of the dispute,”

As a consequence of this case, translator fees are often argued to be unrecoverable as a disbursement as a person’s inability to speak English would be seen as a “characteristic of the claimant” rather than a “feature of the dispute.”

Translation fees Recoverable in Santiago v MIB

In relation to the Judgment in Aldred v Cham, the Court of Appeal held that the decision was strictly obiter, and found that translation fees are recoverable.

The Court of Appeal considered changes made to the overriding objective in the Civil Procedure Rules in 2021. These changes aimed to make sure that cases are handled fairly with proportionate costs, with a focus on ensuring that all parties have an equal chance to participate and present their evidence. They also considered Practice Direction 1A, which includes factors related to vulnerability, such as a person’s ability to understand the legal process, their role in it, and their ability to communicate and present their evidence in court.

Furthermore, the Court examined the distinctions between a Child Settlement Hearing and a Trial. It observed that in the former, a settlement is usually already reached or will be reached soon. However, in the circumstances of a Trial, the Claimant is unable to participate in Court without a translator.

When considering the overriding objective, the Court determined that in the Cham case, the Court must have believed that the principles of access to justice were not applicable since they did not make reference to it.

The Court of Appeal ultimately held that they were not bound by the decision made in Aldred v Cham and deemed translation fees recoverable. They further determined that a broader interpretation should be made of 45.29I(h)to accommodate access to justice and the overriding objective, stating the following:

“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.”

How can ARC Costs Assist?

ARC Costs regularly assist in a wide-array of costs disputes, including those in relation to the recoverability of translation fees or any other type of disbursement in CPR 45 fixed costs disputes.

ARC Costs are a team of highly skilled and experienced Costs Lawyers and Costs Draftsmen who can assist both receiving parties and paying parties in a fixed costs dispute.

Bills of Costs may need to be prepared, and in some cases, a provisional assessment hearing may need to take place. However, the success rates that we have accrued encourage you to place your trust in our skilled team as we regularly demonstrate our ability to succeed on fixed costs disputes.

W can be contacted via email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on legal costs, please find out more about our speciality areas of expertise and our services on our legal costs page.

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