The Court of Appeal ruling in Aldred v Cham [2019] EWCA Civ 1780, is often relied upon by defendants in road traffic accident claims that cease to continue under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents 2013 (RTA Protocol) – specifically, as to the recoverability of disbursements pursuant to CPR r.45.29I(2)(h).

CPR 45.29I(2)(h) provides the court discretion within the fixed costs regime to allow a claim for “any other disbursement reasonably incurred due to a particular feature of the dispute”. In Aldred, the costs of counsel’s advice on quantum – despite being mandatory in most circumstances pursuant to CPR r.21.10(1) – were found not to fall within CPR 45.29I(2)(h), because the Claimant being a child was a particular feature of the Claimant, not of the dispute itself. Some defendants have since cited the narrow interpretation encouraged within Aldred to oppose any disbursement that cannot strictly be interpreted as arising from a particular feature of the dispute – including interpreters’ fees incurred by a claimant or witness at trial.

In relation to such fees, obiter remarks by Coulson LJ in Aldred, were to the effect that “the fact that, in a particular case, a claimant is a child, or someone who cannot speak English, or who requires an intermediary, is nothing whatever to do with the dispute itself. Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute” (para 35).

It was precisely this suggestion that put the court in some difficulty in Raphael DE Lima Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838. Mr Santiago was a Brazilian national with a weak grasp of the English language. He sustained injuries in a road traffic accident against an uninsured driver and brought a claim against both them and the Motor Insurers’ Bureau. For the purposes of his claim, a witness statement was prepared in Portuguese and translated to English, in compliance with CPR PD32, in-house by his solicitors. In accordance with the directions issued by the court, an independent interpreter was arranged by the Claimant’s solicitors to assist him at trial. However, after Mr Santiago’s claim settled on the morning of the trial, DDJ Sneddon held that whilst her instinct was to allow as a disbursement the costs of the interpreter who had attended, she felt constrained by the decision in Aldred to find that such a disbursement could not be recovered under CPR 45.29I(2)(h) as having arisen “due to a particular feature of the dispute”.

On this occasion, the lead judgment in the Court of Appeal was given by Stuart-Smith LJ and agreed without qualification by Snowden LJ and Whipple LJ. The learned judge began by setting out how although the relevant provisions of the RTA Protocol and CPR 45.29 remained unchanged – the context for their interpretation had changed since the decision in Aldred.

Primarily, by the CPR amendments that followed the February 2020 report of the Civil Justice Council entitled ‘Vulnerable Witnesses and Parties within Civil Proceedings – Current Position and Recommendations for Change’. These changes, which came into force on 6^th April 2021:

• Firstly, amended r.1.1(2(a) to provide that dealing with a case justly and at proportionate costs includes, so far as is practicable “ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence“.
• Secondly, introduced CPR PD1A titled ‘Vulnerability’ which sets out that “vulnerability of a party or witness may impede participation and also diminish the quality of evidence. The court should take all proportionate measures to address these issues in every case” (para 2) and confirms that “factors which may cause vulnerability in a party or witness include (but are not limited to)… (b) communication or language difficulties” (para 4).
• Thirdly, amended the general costs provision under CPR r.44 to the effect that costs will be proportionate if they bear a reasonable relationship to any additional work undertaken, or expense incurred, due to the vulnerability of a party or witness – although the learned judge noted that no changes were made as to the wording or interpretation of the fixed costs regime under CPR r.45.

Stuart-Smith LJ accepted the Claimant’s submission that these amendments obliged the court to give effect to the amended overriding objective when interpreting CPR 45.29I(2)(h), such as to ensure that a linguistically vulnerable person such as Mr Santiago “can participate fully in proceedings” and “give their best evidence”. The court in fact held that any interpretation that precluded the recovery of reasonably incurred interpreters’ fees in such a case would fall foul of the overriding objective by hindering access to justice – unlike in relation to counsel’s fee for an opinion in infant settlement matters – as “without the services of the interpreter the claimant (or witness) who cannot speak or understand English is precluded from having access to the court that will permit them to participate fully on an equal footing and to give their best evidence… [and] if the interpreter’s fee is not recoverable as a disbursement, it is not remunerated at all, either actually or notionally” – given that it is not otherwise provided for within the fixed costs regime.

The court recognised, however, that this conclusion alone would not justify allowing the present appeal, if the court was otherwise precluded in applying the normal principles of interpretation or by the judgment in Aldred. In relation to the former, Stuart-Smith LJ held that in CPR 45.29I(2)(h), the words “the dispute” are capable of bearing a broader construction given their varying use within the CPR, and need not be read simply as the mutually exclusive inverse of “the claimant”. Especially since use of the word “other” within CPR 45.29I(2)(h), indicated that the disbursements listed in sub-paragraphs (a) to (g) were also to be regarded as “disbursements incurred due to a particular feature of the dispute” – and as sub-paragraphs (f) and (g) were intended to facilitate the attendance and equal participation at court of a party or witness – they clearly fell in tandem with allowing recovery of an interpreter’s fee.

The present case was distinguished from Aldred, on the basis that it was not open to the court to find that the costs of an interpreter were not required to allow the Claimant to have access to the court to resolve their claim. Stuart-Smith LJ accordingly 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).”

In so finding, the Court of Appeal has opened a door allowing for broader interpretation of CPR r.45.29I(2)(h) where necessary for due regard to be given to the amended overriding objective and its emphasis upon ensuring equal access to justice. A decision that goes beyond allowing interpreters’ fees and could be construed favourably by claimants in appropriate cases where their access to the courts may otherwise have been prejudiced by the narrower reading of the provision encouraged in Aldred – such as potentially claimants or witnesses requiring the assistance of a professional intermediary.

Although, provided that the intended amendments to the fixed costs regime approved by the Civil Procedure Rule Committee in March 2023, come into force on 1^st October 2023 – for claims issued on or after that date, the specific issue in this case, should no longer arise. The draft amendments provide that for most fast-track claims that began under the relevant protocol, interpreters’ fees shall be permitted as a disbursement (draft paras 45.44 and 45.59(a)(v)) and further that for certain claims under CPR r.8, “any other disbursement reasonably incurred due to a particular feature of the dispute or any requirement of these rules” shall be allowed (draft paras 45.28 and 45.58(f)).

Nonetheless, many cases had been stayed in anticipation of this judgment and its significance for matters issued prior to 1^st October 2023 cannot be understated, nor potentially its broader implications for considerations of access to justice, even after the amendments take effect.

By Nida Ali. For further information about Nida’s practice, or any other members of our Personal Injury team, please contact Tony Atkins, Senior Clerk, or Jonathan Cue, Senior Civil Clerk on 020 7353 0711 or via email: clerks@pumpcourtchambers.com.