Introduction

Santiago v Motor Insurers' Bureau ([2023] EWCA Civ 838) is a pivotal case adjudicated by the England and Wales Court of Appeal (Civil Division) on July 13, 2023. The case centers around the recoverability of an independent interpreter's fees under the fixed costs regime outlined in the Civil Procedure Rules (CPR) Part 45.29I(h). Mr. Santiago, a Brazilian national with limited proficiency in English, sought to recover the costs of an interpreter necessary for his participation in trial proceedings related to a personal injury claim arising from a road traffic accident.

The key issue addressed was whether the interpreter's reasonable fees could be classified as a disbursement under sub-paragraph (h) of CPR 45.29I, thereby making them recoverable. This determination holds significant implications for claimants requiring interpreters to ensure full and fair participation in legal proceedings, as well as for defendants facing similar circumstances.

Summary of the Judgment

The Court of Appeal delivered a landmark decision affirming that the reasonable fees of an independent interpreter can indeed be recovered as a disbursement under CPR 45.29I(h). The appellant, Mr. Santiago, had engaged an independent interpreter to facilitate his participation in trial after a personal injury claim settlement. Initially, the lower court denied the recovery of these fees, citing the precedent set by Cham (A Child) v Aldred [2019] EWCA Civ 1780.

Upon appeal, the Court of Appeal scrutinized the applicability of the Cham decision to the current case. The appellate court concluded that the need for an interpreter stems from the claimant's vulnerability due to linguistic barriers, rather than a feature intrinsic to the dispute itself. Therefore, the interpreter’s fees should be considered a reasonable disbursement falling within the scope of sub-paragraph (h). Additionally, the recent amendments to the CPR's overriding objective, which emphasize ensuring equal footing and full participation in proceedings, reinforced the recoverability of such fees.

Consequently, the court allowed Mr. Santiago's appeal, setting a new precedent that recognizes the necessity of interpreters in maintaining access to justice for vulnerable parties.

Analysis

Precedents Cited

The primary precedent analyzed was Cham (A Child) v Aldred [2019] EWCA Civ 1780. In Cham, the court addressed whether the cost of counsel's opinion on settlement in a child's case could be recovered as a disbursement. The Court of Appeal in Cham held that such fees were not recoverable under sub-paragraph (h) because they were deemed part of the fixed recoverable costs in Table 6B of CPR Part 45.

However, in the current case, the appellate court distinguished between counsel's opinion fees and interpreter's fees. The court reasoned that while counsel's opinion was tied to the procedure of obtaining approval for a child's settlement, the interpreter's fee directly relates to the claimant's ability to participate and provide evidence, thereby impacting access to justice.

Legal Reasoning

The court's legal reasoning hinged on the interpretation of sub-paragraph (h) of CPR 45.29I, which allows for the recovery of any other disbursement reasonably incurred due to a particular feature of the dispute. The Court of Appeal emphasized the "overriding objective" of the CPR, which mandates that proceedings must be conducted fairly and that parties have equal footing and can participate fully.

Mr. Santiago's inability to speak English was deemed a vulnerability that impeded his full participation in the proceedings. The court reasoned that an interpreter is essential for such claimants to participate fully and provide their best evidence, thereby aligning with the overriding objective. Therefore, the interpreter’s fee satisfies the criteria of a disbursement reasonably incurred due to a particular feature of the dispute, namely the claimant's linguistic vulnerability.

Furthermore, the court acknowledged the amendments to the CPR introduced by the Civil Justice Council's recommendations. These amendments reinforced the importance of ensuring that vulnerable parties can participate fully in legal proceedings, thereby supporting the interpretation that interpreter fees are recoverable.

Impact

This judgment has far-reaching implications for the fixed costs regime in civil litigation, particularly in cases involving vulnerable parties. By affirming the recoverability of interpreter fees, the court has enhanced access to justice for individuals with limited proficiency in English or other languages. Legal representatives must now factor in the potential for disbursement recovery when engaging interpreters, ensuring that clients are not disadvantaged due to language barriers.

Additionally, this decision may prompt further clarifications and amendments to the CPR to explicitly address the recovery of costs associated with accommodating vulnerable parties. It underscores the judiciary's commitment to upholding the principles of fairness and equal participation in the legal system.

Complex Concepts Simplified

Civil Procedure Rules (CPR) Part 45

The CPR Part 45 outlines the framework for the recovery of fixed costs in civil litigation. It distinguishes between "fixed recoverable costs," which cover standard legal fees, and "disbursements," which are additional costs incurred during the legal process.

Fixed Costs vs. Disbursements

• Fixed Costs: These are predetermined fees that cover a solicitor's legal services up to a certain point in the litigation process. They are detailed in tables within the CPR (e.g., Table 6B) and are not typically subject to negotiations based on case complexity.
• Disbursements: These are extra costs that arise due to specific features of a case. Sub-paragraph (h) allows for any other disbursement reasonably incurred due to a particular feature of the dispute, provided it aligns with the case's requirements.

Overriding Objective

The overriding objective of the CPR is to enable the court to deal with cases justly and at proportionate cost. This includes ensuring that all parties can participate fully and that proceedings are conducted fairly, without undue expense or delay.

Sub-paragraph (h) of CPR 45.29I

This provision allows the court to recover "any other disbursement reasonably incurred due to a particular feature of the dispute." In this case, the court interpreted the need for an interpreter as such a feature, given the claimant's linguistic vulnerability.

Conclusion

The decision in Santiago v Motor Insurers' Bureau ([2023] EWCA Civ 838) marks a significant advancement in the interpretation of disbursements under the CPR's fixed costs regime. By recognizing the recoverability of interpreter fees as disbursements necessary for ensuring fair and equal participation in legal proceedings, the court has fortified the principles of access to justice.

This judgment underscores the judiciary's role in adapting procedural rules to accommodate the diverse needs of litigants, particularly those with vulnerabilities such as language barriers. Legal practitioners must now be cognizant of the implications of this ruling, ensuring that their cost recovery strategies align with the enhanced interpretation of disbursements stipulated by the court.

Overall, this case sets a precedent that balances the fixed costs regime's structure with the imperative to maintain fairness and accessibility within the legal system, paving the way for more inclusive and equitable litigation practices.