On 13 July, the Court of Appeal handed down Judgment in Santiago v Motor Insurers’ Bureau. The case resulted from a Road Traffic Accident in 2018 involving the Claimant, Mr Santiago, a Brazilian national who spoke Portuguese as his first language and did not speak English well.

 

The Court of Appeal considered the appeal of DJ Sneddon’s Judgment in which she did not allow the recovery of an independent interpreter’s fees. In her original Judgment, DJ Sneddon gave permission to appeal, stating that she felt constrained by the decision in Cham (A Child) v Aldred [2019] EWCA Civ 1780 (“Cham”) where it was argued that a disbursement was recoverable as “any other disbursement reasonably incurred due to a particular feature of the dispute” and she could not find a person’s lack of linguistic ability as a particular feature of the dispute.

 

The relevant law considered here is CPR 45.29I(h) for fixed recoverable costs, specifically disbursements. The court may allow a claim for “any other disbursement reasonably incurred due to a particular feature of the dispute.”

 

Lord Justice Stuart-Smith gave the leading judgment and determined at paragraph 55 that since the Court in Cham was not to rule on the recoverability of interpreter’s fees, the Court’s comments appearing to exclude the recovery of interpreter’s fees as a disbursement were “strictly obiter” and therefore not binding.

 

Lord Justice Stuart-Smith at paragraph 60 stated the following:

 

“I would therefore hold that an interpretation of sub-paragraph (h) that precluded the recovery 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. 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.”

 

As a conclusion, Lord Justice Stuart Smith summarised:

 

“63. Turning to Cham, the first and most striking feature of the decision is that there is no mention of the overriding objective which, even then, required the Court so far as possible to put the parties on an equal footing and to deal with the case fairly. Although the terms of the overriding objective have since been clarified and reinforced, it is difficult to accept that the Court in Cham would not have referred to the overriding objective unless it considered that the facts of that case did not engage the principles of access to justice that I have discussed above. I have identified at [59] above what I consider to be the two critical points of distinction between counsel’s opinion and the fees of an interpreter when considered through the prism of access to justice. What appears clear is that the Court in Cham did not have to consider, and did not expressly consider, the implications of disallowing the interpreter’s fee when viewed through that prism; and, for the reasons I have given, counsel’s fee for the opinion did not raise the same issues as those that arise in this case. These points of distinction, to my mind, provide the key to answering the questions (a) whether Cham was decided per incuriam and (b) whether we are bound by Cham to dismiss the present appeal. The Court in Cham may have concluded that an opinion of counsel was not required in order for the child to have access to the Court to resolve their claim. That, in my judgment, is not a conclusion that is open to us in the present case when considering the interpreter’s fee.

 

64. This 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. It follows, in my judgment, that the independent interpreter’s fee (assuming it to be reasonably incurred) is properly to be regarded as a disbursement falling within sub-paragraph (h).”

 

This is a very useful Judgment as the case does not just tell us that interpreter fees may be recoverable, but will help practitioners decide generally whether a disbursement may be recoverable under CPR 45.29I(h) or not.