Re Capita Translation and Interpreting Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 2015 |
| Neutral Citation | [2015] EWFC 5 |
| Date | 2015 |
| Year | 2015 |
| Court | Family Court |
Costs – Adverse order for costs – Costs order against non-party – Public family law proceedings – Local authority seeking adoption orders in respect of children of Slovak parents – Court booking interpreters for hearings through company contracted to provide interpreters – Company failing to secure attendance of interpreters on several occasions – Proceedings repeatedly adjourned for want of interpreters – Local authority seeking order for costs of adjourned hearing against company – Whether company in breach of obligations under contract with Secretary of State for Justice – Whether company liable for costs – Senior Courts Act 1981, s 51.
A couple from the Slovak Republic applied under s 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of adoption orders in respect of two of their children. They required the assistance of Slovak interpreters. Under a contract with the Secretary of State for Justice, interpreters were provided to the courts by Capita Translation and Interpreting Ltd (‘Capita’) via its subsidiary Applied Language Solutions Ltd. Capita retained interpreters as independent contractors rather than as employees, meaning that they were permitted to refuse or cancel engagements offered to them by Capita without Capita having any means of enforcing their engagement. The proceedings had been adjourned on a number of occasions because Capita had been unable to secure the attendance of Slovak interpreters. The hearing of the applications for leave under the 2002 Act on 7 May 2014 was also adjourned for want of suitable interpreters, with the matter finally being heard a week later on 15 May 2014. The local authority subsequently applied for a non-party costs order against Capita for the costs arising from the adjournment of the 7 May hearing. That application was heard on 14 November 2014. The local authority submitted, inter alia, that Capita’s failure to provide the interpreters on 7 May was a breach of its agreement with the Secretary of State and that Capita was in principle amenable to the court’s jurisdiction under s 51 of the Senior Courts Act 1981 to order a non-party to pay costs. Capita argued that it should not be made the subject of a non-party costs order because any failure by it to provide interpreters should be dealt with as a matter of contract between Capita and the Secretary of State, and not by the court. It argued that in a commercial arrangement such as theirs there should be no obligations over and above those which existed under the contract. Otherwise, Capita submitted, one arm of the state justice system would be able to supplement unilaterally the contractual arrangements that
had been carefully negotiated with another arm of the state justice system and, moreover, to do that without the ability to take proper account of all relevant economic and commercial actors that existed on both sides of the contract.
Held – Authority established that the provision of an interpreter for a witness or a defendant in a criminal case was an obligation of the state which was regarded as an integral part of its obligations to provide a fair and just system of criminal justice. If a private company took on the discharge of an obligation of the state, it assumed the responsibility to do so in accordance with the terms that it had agreed. It therefore became important to examine the role played by the company in the provision of the state’s obligation to provide interpreter services, not only to determine the extent of its responsibility for providing interpreter services on behalf of the state as an essential part of the justice system upon which the courts were bound to rely, but also to determine what its obligations were for the purpose of seeing whether there had been a deliberate or negligent failure to perform those obligations. Those propositions regarding the criminal justice system manifestly applied with equal force in relation to public law family proceedings where, as in the present case, the state was seeking to intrude into the life of a family. Authority established that it was no use to a court to have an interpreter in attendance on 98% of occasions when interpreters were required; if an interpreter was required, justice could not be done without one and a case could not proceed. An interpreter was therefore required on 100% of such occasions. Any non-performance resulting from a failure by an interpreter to attend was not excused unless that interpreter’s failure was caused by force majeure. There was no suggestion that a force majeure had arisen in the present case. It followed that, by failing to provide interpreters at the hearing on 7 May 2014, Capita had failed to discharge its obligations under its agreement with the Secretary of State. That failure in principle exposed Capita to the making of a non-party adverse costs order. On the evidence, there had been serial failures by Capita against a background of wider systemic problems. Applying the standard established by the relevant authorities and having regard to the principles of general application, it was just in all the circumstances to make the order sought by the local authority. The failures on the part of Capita were not minor but extensive and, at two different stages of the litigation, had had a profound effect on the conduct of the proceedings. That was not to suggest that Capita would be liable for each and every failure to provide an interpreter; everything would depend upon the precise circumstances of the particular case. It followed that Capita would be ordered to pay the costs incurred by the local authority in relation to the hearing on 7 May 2014, excluding those costs which would have had to be incurred in any event for the hearing which eventually took place on 15 May 2014 (see [23]–[29], [40]–[41], [53], below); Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232, R v Applied Language Solutions Ltd [2013] 1 WLR 3820 and HB v PB[2013] 3 FCR 318 applied.
Cases referred toAiden Shipping Co Ltd v Interbulk Ltd, The Vimeira [1986] 2 All ER 409, [1986] 1 AC 965, [1986] 2 WLR 1051, HL.
Dolphin Quays Developments Ltd v Mills [2007] EWHC 1180 (Ch), [2007] 4 All ER 503.
Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232, CA.
Goodwood Recoveries Ltd v Breen[2005] EWCA Civ 414, [2006] 2 All ER 533, [2006] 1 WLR 2723.
HB v PB[2013] EWHC 1956 (Fam), [2013] 3 FCR 318.
J and S (children) (adoption proceedings: opposition), Re [2014] EWFC 4, [2014] All ER (D) 211 (May).
Jones v Kaney[2011] UKSC 13, [2012] 2 FCR 372, [2011] 2 All ER 671, [2011] 2 AC 398, [2011] 2 WLR 823, [2011] 2 FLR 312.
Kelly v South Manchester Health Authority [1997] 3 All ER 274, [1998] 1 WLR 244.
Metalloy Supplies Ltd (in liq) v MA (UK) Ltd [1997] 1 All ER 418, [1997] 1 WLR 1613, CA.
North West Holdings plc, Re, Secretary of State for Trade and Industry v Backhouse[2001] EWCA Civ 67, [2001] 1 BCLC 468.
Northampton Area Health Authority v Official Solicitor and Governors of St Andrews Hospital[1994] 2 FCR 206, [1994] 1 FLR 162, CA.
Palmer v Palmer[2008] EWCA Civ 46, [2008] Lloyd’s Rep IR 535.
Phillips v Symes [2004] EWHC 2330 (Ch), [2005] 4 All ER 519, [2005] 1 WLR 2043.
Providence Capitol Trustees Ltd v Ayres [1996] 4 All ER 760.
R v Applied Language Solutions Ltd [2013] EWCA Crim 326, [2013] 1 WLR 3820.
Symphony Group plc v Hodgson [1993] 4 All ER 143, [1994] QB 179, [1993] 3 WLR 830, CA.
X Local Authority v Trimega Laboratories [2013] EWCC 6 (Fam), [2014] 2 FLR 232.
ApplicationIn the course of public law family proceedings concerning two children of parents from the Slovak Republic, Kent County Council applied under s 51 of the Senior Courts Act 1981 for a non-party costs order against Capita Translation and Interpreting Ltd in respect of costs arising from a hearing on 7 May 2014 which had been adjourned because of Capita’s failure to provide suitable interpreters. The facts are set out in the judgment.
Charles Howard QC (instructed by Kent CC) for the applicant.
James Turner QC (instructed by Freeths LLP) for the respondent.
2 February 2015. The following judgment was delivered.
SIR JAMES MUNBY P.[1] On 7 May 2014 there were listed before me at the Royal Courts of Justice applications by a father and a mother for leave pursuant to s 47(5) of
the Adoption and Children Act 2002 to oppose the making of adoption orders in relation to two of their children, J and S, boys born respectively in 2010 and 2012. The parents were Roma from the Slovak Republic. They required the assistance of interpreters in Slovak. The hearing had been listed in accordance with an order made by Judge Murdoch QC in the Canterbury County Court on 11 April 2014. So far as material for present purposes, his order provided that ‘HMCTS do provide 2 Slovak interpreters for the hearing on 7 May 2014’.
[2] I can pick up the story by referring to what I said in the judgment I subsequently handed down on 23 May 2014: Re J and S (children) (adoption proceedings: opposition) [2014] EWFC 4, [2014] All ER (D) 211 (May) (at [9]–[10]):
‘[9] The hearing before me on 7 May 2014 was unable to proceed. Despite the order made by Judge Murdoch, and although HMCTS had, as was subsequently conceded by it, gone through the appropriate procedures with Capita Translation and Interpreting Ltd (Capita) to book two interpreters, no interpreter was present at court. I had no choice but to adjourn the hearing. How could I do otherwise? It would have been unjust, indeed inhumane, to continue with the final hearing of applications as significant as those before me—this, after all, was their final opportunity to prevent the adoption of their children—if the parents were unable to understand what was being said. Anyone tempted to suggest that an adjournment was not necessary might care to consider what our reaction would be if an English parent before a foreign court in similar circumstances was not provided with an interpreter.
[10] I accordingly adjourned...
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...time, of the relevant contractor to provide interpreters for the final hearing arranged for 22 September 2014: compare Re Capita Translation and Interpreting Ltd [2015] EWFC 5. But it is two other matters which I need to focus on. Other matters: section 20 of the 1989 Act 157 The first rel......