It is some years ago now that the Government brought in a fixed costs scheme in relation to the fees which could be recovered by solicitors acting for Claimants in low value personal injury claims. “Low value” basically means claims where the compensation does not exceed £25,000.00 which, is the situation in the vast majority of cases.
The days of this scheme are numbered now owing to the Government’s intention to bring in sweeping changes to how these so-called whiplash claims are processed and funded, with the implementation due in May this year.
Putting that issue to one side for a moment, it is clearl that, in the UK, there are thousands of people whose first language is not English and they are unable to read English, even if they speak English as a second language.
In fact, many amongst the older generations, often have never learned to read or write so, no matter what language a document might be drafted in, they would be unable to read it anyway.
It goes without saying that it is a cornerstone of the British justice system that all persons should be able to avail themselves of it as required without discrimination.
Back to the current fixed cost scheme. Not only does it provide for the fixed fees the solicitors charge for their work (if successful), it also provides a list of what are called disbursements. A disbursement basically is an expense which is incurred in order to be able to run the case.
The legal rules of the fixed cost scheme provide a list of what type of disbursements can be recovered and these are the usual things such as the cost of obtaining a medical report, the cost of obtaining an engineer’s report in a road accident case, court fees, witness expenses etc.
Unfortunately, as we shall see, the list does not expressly provide for the recoverability of a translator’s fees.
At the end of the list of the named recoverable disbursements, there is sweep up provision which states that any other disbursement is recoverable if it has been reasonably incurred due to a particular feature of the dispute.
I reckon most of us would regard it as only fair that a translation fee should be regarded as a reasonably incurred disbursement because it is going to be the only way people who cannot read at all or who cannot read and understand English can bring a claim for compensation. How can they be expected to sign documents stating that the contents are true and that it is a contempt of court to sign a document knowing the contents not to be true if they cannot read the document in the first place?
I turn now to quite remarkable claim which was decided back in 2019 and which was decided by The Court of Appeal. What that means is that the decision is binding i.e. it has to be followed by Judges in County Courts and High Courts until and unless either the fixed costs rules change, or The Court of Appeal or a Court above it overturns the decision. Since the Judgment of the Court of Appeal in 2019, the rules were not altered and, as a result of the new rules taking effect in May, they are highly unlikely to be altered now.
The 2019 case in question is called Aldred -v- Master Tyreese Sulay Alieu Cham.
In a nutshell, The Court of Appeal decided that translation fees were not a feature of the dispute –within the express wording of the sweep up clause but, instead, are a feature of the party i.e. the person bringing the claim . As such, because the fixed costs rules do not include translation fees in the list, and because the sweep up disbursement clause does not apply either, it means that translation fees are not recoverable from the losing party.
Consequently, if you are not able to read English or cannot read at all, it means that if you are running a personal injury claim and are successful, you have to pay the translation fees out of the damages you recover. This is on top of the success fee you would have to pay to your solicitor if the solicitor has run a funding of the claim on a no win no fee basis (which is almost all of the time) and the insurance premium you may have incurred in taking out an insurance policy to pay the disbursements should the claim be unsuccessful.
Bearing in mind that translation fees are not cheap – £20.00 per word is not unheard of, if a number of documents have to be prepared, including all the court documents and witness statements, and the translator has to come to court to assist with the trial, it is not uncommon for translation costs to be in the region of £2,000.00 to £2,500.00.
If someone has suffered a typical whiplash injury through no fault of their own, but , for whatever reason liability has not been admitted by the insurance company representing the other driver, the whiplash injury itself is likely to be worth somewhere in the region of £3,000.00 to £4,000.00 or thereabouts.
Basically, because of the non-recoverability of translation fees, it simply it is not economically worth the person who cannot read English, or cannot read at all, bringing the claim because his/her damages will be reduced to nil or virtually nil so, what would be the point in progressing a claim?
There has been a lot of criticism of The Court of Appeal decision in Aldred but it remains law.
Aldred has cast a shadow in my opinion over the last months of the current fixed cost scheme.
To have to explain to a client that they will be responsible for the translation costs along with the other deductions, is not an easy conversation to have. The decision indirectly discriminates on the grounds of (let’s face it) race and that is a poor reflection on the justice system.