Tuesday 26 March 2013 by Catherine Baksi
The company contracted by the Ministry of Justice to provide court interpreters has won an appeal against a decision to award a third-party costs order after a sentencing hearing was adjourned due an interpreter's non-appearance.
In the Court of Appeal yesterday, the president of the Queen' Bench Division Sir John Thomas ruled that a single 'isolated failure' to provide an interpreter did not amount to 'serious misconduct' and that a third-party costs order of £23.25 by Judge Kelson in the Crown court should not have been made.
The MoJ contract awarded to Applied Language Solutions, now Capita Translation and Interpreting, (CTI) to provide court interpreters began in January last year. It has been the subject of three critical parliamentary and audit reports for its failure to meet performance targets and for failings in the initial procurement process.
The Court of Appeal case concerned a sentencing hearing at Sheffield Crown Court in April last year, which Her Majesty's Courts and Tribunals Service requested a Slovak interpreter to attend.
The day before the hearing, the sentencing was rescheduled to an earlier time, but the interpreter was not told. The hearing was adjourned due to their non-attendance, and Judge Kelson subsequently made a third-party costs order in favour of prosecuting counsel in the sum of half of their hearing fee - £23.25.
Kelson found that CTI did not do its job properly as a result of negligence. He said that the appellant had a major responsibility and that courts should not have their time wasted.
However the Court of Appeal overturned his decision, saying that a 'single failure' cannot, when 'viewed in isolation', amount to 'serious misconduct'.
In this case, it found 'there was no evidence that the failure was anything other than an isolated failure' and that 'there was no evidence of a number of other previous failures by the interpreter in question or failures in the appellant's system'.
But it said that serious misconduct might arise if there was evidence that the non-attendance resulted from a 'failure to remedy a defect in the appellant's administrative systems which had caused non-attendance in the past', or where a particular interpreter had a history of non-attendance.
The court concluded that a court should not generally make an order 'without clear evidence of serious misconduct' or 'unless there are unusual circumstances which justify the making of an order'.
Thomas noted: 'Although the sum in issue in this appeal was only £23.25, it raised an important point as to the circumstances in which a court could exercise its power to make a third-party costs order where a private contractor has been given the responsibility of performing duties hitherto performed by the state.'
In the course of the judgment he observed: 'Having efficient systems and good and reliable interpreters is expensive. A contractor cannot be allowed to maximise its profit or reduce its loss in the context of court proceedings by not having in place the best systems and the best interpreters. It cannot transfer its costs of failing to do so to the CPS or the defence.'
Rejecting CTI's argument that it was obliged to provide interpreters in only 98% of bookings - its contractual performance target - Thomas said CTI is providing 'an integral part of the state's obligations' and it must discharge that duty.
He said: 'The provision of an interpreter where either a witness or a defendant does not speak English (or Welsh), is essential. Without one a case cannot proceed.
'It is simply no use to a court having an interpreter there on 98% of occasions when interpreters are required, because if an interpreter is required justice cannot be done without one and a case cannot proceed. An interpreter is required on 100% of such occasions.'
Read the full judgment.