Costs

Re Capita Translation and Interpreting Limited: Family Court: 2 February 2015

Payment of costs by non-party – Company being under contract to Ministry of Justice to provide interpreters at court and tribunal proceedings – Booking for interpreters to attend hearing for leave to oppose adoption order

A mother and father, who were Roma from the Slovak Republic, had applied for leave to oppose the making of adoption orders in relation to two of their children. The parents required the assistance of interpreters. A judge ordered that Her Majesty’s Court Service provide two interpreters for the final hearing.

That hearing was unable to proceed as, although the court had followed the appropriate procedures with the translation and interpreting company (Capita) to book the interpreters, none were present. Consequently, the hearing was adjourned. That was against a background of multiple occasions when Capita had failed to provide an interpreter in the present case.

The court directed that Capita’s relationship director (SF) file a written statement, with statement of truth, explaining why no interpreters had been provided. The costs of the hearing were reserved to the adjourned date for consideration of whether Capita should be liable. SF filed her witness statement which explained that Capita did not employ interpreters, but that they were self-employed contractors who were free to accept or reject bookings and there was no way to compel them to accept an assignment or to honour an engagement that they had accepted.

At the adjourned hearing, the interpreters were present but Capita was not represented. Both the local authority and the children’s solicitor indicated that they sought orders that Capita pay them their costs of the abortive hearing. Those applications were adjourned, to enable Capita to consider the case against it, with a direction that the costs of the two hearings were reserved for determination.

The present proceedings concerned the applications for costs. As the children’s solicitor had not pursued the application due to the limits of the legal aid certificate, but had not abandoned the application either, the court declined to make an order.

The authority submitted: (i) that Capita’s failure to provide the interpreters at the first hearing had been a breach of its agreement with the secretary of state; (ii) Capita was, in principle, amenable to the court’s jurisdiction under section 51 of the Senior Courts Act 1981 to order a non-party to pay costs; and (iii) on a proper application of established principles, the order sought should be made.

Consideration was given to the decision of the Court of Appeal, Criminal Division, in R v Applied Language Solutions Ltd [2013] All ER (D) 239 (Mar) (ALS) and to the wider context of Capita’s overall ‘success rate’ in providing interpreters requested by courts and tribunals as published by the Ministry of Justice in ‘Statistics on the use of language services in courts and tribunals: Statistical bulletin, 30 January 2012 to 31 December 2013’ (for an overview of the statistics in respect of Slovak interpreters when compared with other language requests see [14] of the judgment).

The application would be allowed.

It was established in ALS that Capita had undertaken far more than a booking facility. It was bound to provide interpreters on each occasion unless there was a force majeure that affected the company. A failure by an interpreter to attend did not avail the company unless that interpreter had been prevented by force majeure; if there was no force majeure on which the interpreter could rely, Capita had failed to discharge its obligation.

That decision was clear authority for the proposition that a failure by Capita to discharge its obligations under its agreement with the secretary of state exposed it, in principle, to the making of a non-party adverse costs order (see [26], [29] of the judgment).

By having failed to provide interpreters at the first hearing, Capita had failed to discharge its obligations under its agreement with the secretary of state. There had been serial failures by Capita in the present case against a background of wider systemic problems. Applying established principles, it was just in all the circumstances to make the order sought.

The failures had been, not minor but extensive, and, at two different stages of the litigation they had had a profound effect on the conduct of the proceedings. That was a decision on the particular facts of the present case and was not to be taken as suggesting that Capita would be liable for each and every failure to provide an interpreter or, more specifically, a Slovak interpreter.

It was just, on the facts, for Capita to pay the costs incurred by the local authority in relation to the first hearing excluding those costs which would have had to be incurred in any event for the hearing that did eventually take place (see [28], [40], [41], [53] of the judgment).

Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232 applied; R v Applied Language Solutions Ltd [2013] All ER (D) 239 (Mar) applied; HB v PB [2013] 3 FCR 318 applied.

Charles Howard QC (instructed by Kent County Council) for the local authority; James Turner QC (instructed by Freeths LLP) for Capita.