Key Point

Key Point Key Point Interpreter's fees are recoverable under SIIIA Santiago v MIB [2023] EWCA Civ 838 Here the Court of Appeal grappled with the problem that interpreter's fees were, prima facie, not recoverable as a disbursement in a case to which SIIIA fixed costs applied. Following Cham v Aldred, it was generally accepted that a disbursement could only be recoverable if it arose because of a particular feature of the dispute. In Cham, the disbursement there arose because of a particular feature of the Claimant, namely that they were a child, and thus needed an opinion on quantum before any settlement could be approved. CPR 45.19(2)(e) stipulated that any disbursement not specified could only be recoverable it is arose because of a particular feature of the dispute. As the disbursement arose because of a particular feature of the Claimant, it was not recoverable. The same would therefore apply to interpreter's fees. However, since Cham had been decided, the Civil Justice Council published a report called 'Vulnerable Witnesses and Parties within the Civil Proceedings/ Current position and Recommendations for Change.' This report was addressing the critical need to ensure fair access to justice, and noted the need for interpreters, and that being unable to understand the proceedings made a person vulnerable, in that they could not participate nor give their best evidence. The court had regard to CPR 1.2(b) which required the court to give effect to the overriding objective when interpreting any rule, to ensure parties are on an equal footing and that the case is dealt with fairly. At [62] the court held: the use of the word “other” in sub-paragraph (h) supports the broader interpretation because it implies that the travel expenses and loss of earnings incurred by a party and allowed under sub-paragraphs (f) and (g) are disbursements that are “due to a particular feature of the dispute.” The common feature of such costs is that they facilitate the attendance of a party or witness and thus put the parties on an equal footing by enabling the party or witness to participate fully in the hearing. That is also a defining feature of the cost of an interpreter, without whom the party or witness cannot participate fully in the hearing and, specifically, cannot give their best evidence. Allowing the interpreter’s fee to be recovered under subparagraph (h) is therefore consistent with the inclusion of the disbursements allowed under sub-paragraphs (f) and (g). I would therefore hold that the application of normal principles of construction does not preclude the interpretation of sub-paragraph (h) for which Mr Williams contends. Far from it: in my judgment, the application of normal principles strongly supports his proposed interpretation. I would have reached this conclusion before the 2021 Amendments. At [59] the court noted that in Cham, the disbursement was only incurred after parties had settled, so had no impact on reaching the settlement concerned, whereas without an interpreter, a Claimant who did not speak English could not even get their claim off the ground. The court also noted that the cost of counsel's advice was deemded to be included in the costs allowed in Table 6B, whereas if an interpreter's fee was not recoverable as a disbursement, it was not remunerated at all, either actually or notionally. Therefore the Court of Appeal held that the cost of translator fees were recoverable. At [64] they concluded: "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)." Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

HHJ Wood QC, Chester CC, 22nd January 2016. Individual heads of loss agreed in the Portal are binding whilst the case remains in the Portal, overturning Bushell v Parry and upholding Bewicke-Copley v Ibeh Key Points Agreements on individual heads of loss are binding at Stage 2 and (Obiter) Portal settlements on complete claims are binding to the World Maddocks v Lyne HHJ Wood QC, Chester CC, 22nd January 2016 Parties agreed some individual heads of loss during Stage 2, but at the Stage 3 hearing the Claimant re-opened them, which the judge allowed. The Defendant appealed, arguing that agreements reached in the Portal on individual heads of were binding. The Defendant argued how the a Stage 3 hearing was defined as a hearing to determine items which remained in dispute. The Claimant argued that the wording of the rules only referred to 'offer' in the singular. The Defendant relied on Bewicke-Copley v Ibeh which said they are, and the Claimant relied on Bushell v Parry which said they were not. Permission to appeal, in some delicious irony, was given to the Defendants by HHJ Gregory, who had decided the Bushell case. In a long and reserved judgment, HHJ Wood QC held that where a claim remained in the Portal, as here, those items agreed at Stage 2 would be binding on both parties except in very exceptional cases. The judge went on to find, obiter, that if the matter left the Portal, then individual heads of loss were not binding, although the judgment notes that no argument was heard on this point. The court also went on to find, again obiter, that if all heads of loss were agreed in the Portal then it was binding on the world. Whilst confirming the original position as found in Bewicke-Copley v Ibeh , this decision also resolved the dispute between the inconsistent decisions of Ullah v Jon and Malak v Nasim , on whether admissions in the Portal are binding outside of that Portal claim where there is no judgment, by confirming that where settlement is reached on all heads of loss that the agreement is binding on the world, it does not require a judgment to be binding. That point was then confirmed, ratio, 10 months later in the appeal decision of Chimel v Chibwana & Williams . Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Tennant v Cottrell DJ Jenkinson, Liverpool CC, 11th December 2014 - you cannot change your reason for breach of Portal after the event, and there can be no 'Retrospective Justification' of an earlier Portal breach by what happened later. Key Points Cannot change reason for breach of Portal and there can be no 'Retrospective Justification' of an earlier Portal breach Tennant v Cottrell DJ Jenkinson, Liverpool CC, 11th December 2014 The Claimant removed this claim from the Portal when the Defendant made an offer of zero for one head of loss. Part 7 proceedings were issued in which the Defendant sought allocation to the fast track, and for the Claimant to attend for cross-examination. Costs went to Detailed Assessment. In Replies to Points of Dispute, the Claimant tried to argue for the first time that the claim had left the Portal because it was too complex, and pointed to the fact that the Defendant had sought to cross-examine the Claimant and allocate the claim. However, DJ Jenkinson found that the reason the Claimant had left the Portal was completely clear. That was set out in their letter at the time they left the Portal, stating they were doing so because the Defendant had offered zero on one head of loss. The judge said that you could not change your reason for leaving the Portal later, and there could be no argument that a claim 'would have left anyway'. o allow such an argument would be to allow a Claimant to 'retrospectively justify' their earlier unreasonable exit. He would not allow this. The Claimant was restricted to Portal costs. Claimants often try to argue that a claim 'would have left the Portal anyway'. However as this case makes clear, a party cannot change their reasons for leaving later, nor can they rely on anything which happened after a breach of the Portal when assessing whether they had acted unreasonably under CPR 45.24(2). Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Purcell v McGarry - HHJ Gore QC, Liverpool CC, Friday 7th December 2012. The court held that the portal offers were still open for acceptance after Stage 2 had ended, despite the portal protocol implying otherwise. Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases. Key Points Contract Law, including offer and acceptance, has no place in MOJ Portal Protocol cases Purcell v McGarry HHJ Gore QC, Liverpool CC, Friday 7th Dec 2012 The issue here on first tier appeal was whether a Defendant could accept an offer after the end of Stage 2. The judge held that a Portal offer remains open for acceptance after the end of Stage 2. Importantly he noted that contract rules such as offer and acceptance have no place in the Portal arena. This case is important as it establishes that a Portal offer does not automatically cease to be open for acceptance. It has been followed by other cases which have held how offers made in the Portal remain open for acceptance even after Part 7 proceedings have been issued. It also makes it clear that the Portal is 'its own man' and thus contract law does not apply. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index

Key Point Where there are two claimants in a SIIIA fixed costs claim, each claimant is entitled to a separate award of fixed costs Melloy & Anor v UK Insurance Ltd [2022] EW Misc 4 (CC) The court had to consider what costs to award two claimants where they had brought separate claims in the portal, but a joint claim in Part 7 proceedings. At [10], HHJ Glen held that 'claim' and 'claimant' refer to the claim started by, and the claimant who submitted the CNF, rather than to the claim or claimant in the proceedings. He derived support for this position from West v Burton [2021] EWCA Civ 1005, where the court found that the executor of a claimant who had died after Portal proceedings had commenced was not 'the claimant' for the purposes of fixed costs on leaving the Portal. Therefore, he concluded that where there were two or more claimants in proceedings for damages that fall within SIIIA of CPR 45, assuming each had submitted a CNF, were separately entitled to all the costs set out in Table 6B. Click here for a copy of the judgment Go back to Main Index Main Index Go back to Topic Index Topic Index