http://www.lawgazette.co.uk/law/law-reports/costs/5047398.fullarticle
10 March 2015
Costs
Capita Translation and Interpreting Ltd had a
contract with the secretary of state to provide interpreters for court and
tribunal hearings. The court had booked two interpreters for an application for
leave to oppose an adoption, but the interpreters were not provided and the
hearing was adjourned. The local authority sought recovery of its costs of that
hearing against Capita.
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.
