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Judge deplores lack of assistance from Legal Aid Agency

Court considers costs of translation of documents in care proceedings

In R (Translation of Documents in Proceedings) [2015] EWFC B112, HHJ Lynn Roberts has criticised the lack of assistance provided by the Legal Aid Agency which, despite her invitation, had declined to intervene in proceedings in relation to the cost of translating documents created or obtained in care proceedings.

The mother and father in the proceedings were Polish. It was agreed that documents generated by the local authority at the outset of proceedings should be translated by the local authority, and that the costs of translation of those documents should be borne by the local authority. The judge was asked to determine who should bear the costs of the translation of other documents created or obtained during care proceedings.

The Legal Aid Agency (the 'LAA') was invited to intervene in the proceedings, and attempts were made to procure a clear view from the LAA as to their position on the issue and the reasoning for any position adopted. The matter was adjourned to give the LAA the opportunity to intervene. In a telephone call to the LAA, the judge explained the purpose of the invitation to intervene.

By a subsequent email, and after having read the skeleton argument on behalf of the parties, the LAA declined the invitation to intervene. In the said email, the LAA invited the court to order that the costs of translation be shared equally between the parties. It was further said that as the costs of translation in this case were within the LAA approved limits for the Remuneration of Expert Witnesses, the costs could be paid without the necessity to obtain prior authority.

HHJ Lynn Roberts deplored the lack of assistance on the wider issue from the LAA and absence of any basis for the stated position as well as any clarification on "whether this is in fact a decision or merely "a suggestion"". Following their failure to respond to further correspondence from the judge, she found that the LAA had had every opportunity to participate fully in the hearing but had failed to assist the court or the parties by clarifying their position or the legal basis for it.

In conclusion, the judge found that "it is not right for the costs of the translation of documents produced in the proceedings to be shared equally,...". Further, she considered that the party "who needs the documents translated should bear the costs and in this case that means that the LAA must bear the costs incurred on that party's public funding certificate". The judge's reasons for this decision are that translation of documents cannot be properly described as expert work, the position of translators are comparable to that of interpreters. Following Re L (Procedure: Bundles: Translation) [2015] 1 FLR 1417, "it is clear that it is not right for all documents to be translated for the non-English speaking party. It is for that party's solicitor to consider the documentation carefully and distil what his or her client needs to be aware of for the purpose of giving instructions and understanding the case. It would not be right or practical for all the parties to be involved in this process; it would not be reasonable for another party – who has to pay part of the costs – not to have the right to be involved in the decisions made by that solicitor. It is likely to lead to satellite litigation and delay."

The judgment is intended to deal with the position of publicly-funded parties only. The judge stressed that nothing within it should be taken as affecting the position of family members or interveners who are not publicly-funded.

A Legal Aid Agency spokesperson, subsequently told Family Law Week:

"Legal aid can be provided for translation services where appropriate. We have been in contact with the court in relation to this case and have established that funding can be provided in these particular circumstances."

For the judgment and summary by Katy Chokowry of 1 King's Bench Walk, from which this item is derived, please click here.

23/8/15