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Non-party costs order made against Capita

Failure to provide Slovak interpreter ‘lamentable’, says the President

The President has ordered Capita Translation and Interpreting Limited to pay the costs of the local authority, Kent County Council, in public law proceedings in respect of two children of Slovak Roma origin, in which Capita failed to provide an interpreter. The judgment is here.

To take part in the proceedings, the parents required the assistance of Slovak interpreters. By the time the application for costs was made, there had been six previous occasions upon which Capita had failed to provide interpreters (either at all, or on time, or able to interpret the Slovak language). 

On the seventh occasion (7 May 2014) by which time the case had been transferred to the High court and at which the issue was parental opposition to the making of adoption orders, no interpreters attended, despite clear directions having previously been given. Accordingly, the President adjourned the hearing and directed Capita to provide a statement explaining the circumstances of the default.

At the reconvened hearing (which did proceed) the local authority (and, at that stage, those acting for the children) sought costs orders against Capita for the abortive hearing. The President had, by then, received written submissions from those seeking costs and a statement from Capita's Relationship Director. He gave further directions to enable Capita to consider the case against it and the application was subsequently heard on 14 November 2014.

The factual background, including the circumstances of the previous ineffective hearings, was not in dispute. Setting these out in detail, the President noted the repeated failure to provide interpreters and that, in respect of the 7 May hearing, the notification that no interpreters would be available was provided only the day before by way of a "banal and formulaic" email apologising for "any inconvenience caused"; that this apparently complied with an agreed protocol did not affect the President's view of Capita's liability.

The explanations provided by Capita (both in its initial and subsequent statements) for the "lamentable" situation, were that the interpreters (who were self employed) were not its employees and that it could not compel them to take up an assignment nor to honour one once accepted. Moreover, it transpired that there were only 29 Slovak interpreters on Capita's books nationwide. In the view of the President, the contractual arrangements between Capita and individual interpreters were matters for Capita and did not affect the issues he had to decide.

What was of importance was the agreement between Capita and the Secretary of State for Justice, the terms of which had been fully analysed in the case of Re Applied Language Solutions Ltd [2013] EWCA Crim 326, upon which Kent relied.

The argument put forward by the local authority had four stages, namely; (1) that Capita's failure to provide interpreters was a breach of the agreement with the Secretary of State, (2) that this situation came within the ambit of the court's powers to order costs against a non party pursuant to  Section 51 of the Senior Courts Act 1981, (3) that the principles to be applied were those set out in the applicable case law (most recently B v B ( Costs: Order against non party) [2013] EWHC 1956 (Fam) ) and, (4) that a proper application of the relevant principles should result in an order being made.

Quoting at length from passages in the ALS judgment, which set out both the fundamental role of interpreters in the provision of a "fair and just" system and the principle that a private company taking on the obligations of the State, was responsible for carrying out those obligations, the President confirmed that such considerations applied with equal force in public family law proceedings as they did to the criminal justice system.

The obligation on the company was to provide interpreters for 100% of cases in which they were required and, in the absence of a force majeure affecting either the company or interpreter, the company could not rely on the failure of an interpreter as an excuse for non performance.

Accordingly, applying ALS, stage 1 of Kent's argument (the failure of Capita to discharge its obligations under its agreement with the Secretary of State) was made out.

Turning to the second limb (and again relying on ALS), having noted that the failures were repeated and, taking into account the obligations of the state and the wider public interest, that they were capable of amounting to "serious misconduct", the President once again confirmed the applicability of the principles to public family law and indicated that he considered stage 2 (concerning the circumstances in which the court could consider ordering costs against a non party) was also made out.

As to the third issue, that of the principles to be applied when considering non-party costs orders; the President quoted with approval from the applicable case law, including reference to it being the case that, ultimately, the test was whether it was just to exercise the power conferred under S51 SCA 1981 and that "exceptionality" was neither a precondition nor a prerequisite. As Cobb J had held in B v B, the circumstances where an order might be applicable, included those where the failures were "extensive" and had had a "profound effect on the conduct of the proceedings".

Turning to the fourth stage (whether in the current circumstances a cost order should be made), the President agreed that Capita's failures were serious, serial in nature and indicative of systemic problems. They had been extensive and had had a profound effect on the conduct of the proceedings. It was therefore just, in this case, to make an order.

The decision to make an order must be firmly rooted in the precise circumstances of each particular case and it was not to be taken that Capita would be liable for "each and every" failure to provide an interpreter, Slovak or otherwise. Nor should it be taken that similar liability would necessarily extend to other private sector contractors - which might have very different agreements in place - that provided services to the courts.

Dealing with the counter arguments put on behalf of Capita, the submission that any failures were matters of commercial contract and should be dealt with between Capita and the Secretary of State rather than the court, could not "escape" the decision in ALS. The issue considered in that case of whether or not there had been a beach of contract was "quintessentially a function of the court" and there was no question of the court invoking its jurisdiction to make costs orders without such a breach having been first established.

A costs order was to be made against Capita. An application for permission to appeal was made and duly refused.

For the judgment and summary by Katy Rensten of Coram Chambers, from which this item is derived, please click here.