Jake Richards on 'Translating Bundles: Who pays the bill?'

19 Apr, 2017

In public family proceedings, it is often necessary for numerous documents to be translated. This can produce significant costs for local authorities, privately funded respondent parties and the Legal Aid Agency. Until now, there has been some confusion about who should foot the bill. Should the burden of paying for the translation of documents always fall on the party who produces it? In Z (A Child) [2017] EWCA Civ 157, a case where the cost of translating documents was over £14,000, the Court of Appeal attempt to clarify the issue.

This appeal followed an order of His Honour Judge Oliver, sitting in the High Court, that Reading Borough Council should be responsible for the cost of translating any documents it served on parents (who did not speak or read English) in care proceedings, provided that the material to be translated is confined to that which is necessary to translate in order to resolve the proceedings justly. HHJ Oliver dismissed the local authority's application to vary the case management order regarding costs, maintaining that the party 'relying on' the original document 'in support of their case' should bear the burden of its translation.

This was in contrast to R (A Child) (Translation of Documents in Proceedings) [2015] EWFC B112 that decided the costs of document translation should be paid by the party that required the translation (i.e. the parents who did not speak English). HHJ Oliver sat as a Deputy High Court Judge in order that his judgment provided a 'higher level of authority' for review by the Court of Appeal to 'hopefully draw a line under this difficult issue'.

At the appeal, representations were made by the Local Authority and the Legal Aid Agency (as an Intervener and on behalf of Lord Chancellor). Neither the parents nor the child was represented.

The Court of Appeal was clear to segregate the issues not before it. Interpretation in court was the responsibility of HMCTS and out-of-court oral interpretations fall to an individual party's public funding certificate, as in Re C (Care Proceedings: Parents with Disabilities) [2015] 1 FLR 52). The cost of translating pre-proceedings documents would, naturally, fall with the local authority in any event.

Lady Justice Macur, giving judgment, agreed with the two parties that the European Directive on Legal Aid 13385/02 and Article 6 ECHR were irrelevant to the point in issue. Instead, it was important to distinguish between 'threshold' and 'welfare' decisions in public family law cases. In doing so, she cited the President of the Family Division, Sir James Munby, in In the Matter of TG (A Child) [2013] 1 F.L.R. 1250, extensively:

"It is a truism that family proceedings are essentially inquisitorial. But in certain respects, they are inevitably and necessarily adversarial. Human nature being what it is, parents will fight for their children; so in care cases where the State is threatening to remove children permanently from the care of their parents, the process will inevitably be highly charged. But care cases are not merely adversarial in the colloquial sense; since the local authority has to establish 'threshold' they are also necessarily adversarial in the technical sense. If, as typically, the local authority seeks to establish threshold on the basis of what it asserts are events which happened in the past, then the burden is on the local authority to prove on a balance of probabilities that those events did indeed happen".

There were, therefore, documents in family care proceedings that could be classified as benefitting one party in a traditionally adversarial sense. However, there were also documents produced in such proceedings that solely concerned the welfare of the child. Such documents are not 'for the benefit' of the party that produced them. Further, there may be other documents which support the local authority in one respect, but the parent in the other. Therefore, HHJ Oliver had erred in making an assumption that the translation of documents should be paid for by the party that produced the document.

Macur LJ went on to re-emphasise the clear statutory provisions for the assessment of costs in family proceedings. Section 51(1) Senior Courts Act 1981 provides that:

"subject to the provisions of this or any other enactment and to the rules of court, the costs of and incidental to all proceedings in…the family court…shall be at the discretion of the court."

Section 51(3) provides that:

"the court shall have full power to determine by whom and to what extent the costs are to be paid".

Section 36(1) Legal Aid, Sentencing and Punishment of Offenders Act 2012 states:

"Costs ordered against an individual in relevant civil proceedings must not exceed the amount (if any) which it is reasonable for the individual to pay to have regard to all the circumstances".

Macur LJ decided that, due to the inquisitorial nature and child-focused approach of family proceedings, it can be difficult for a court to discern which party 'benefits' from certain documents. Considering the widespread discretion given to the courts regarding costs, each case can therefore only be judged on its circumstances:

"To deal with an issue of translation costs devoid of context does not connote a reasonable exercise of judicial discretion. Whilst the promulgation of a court's usual practice on the question creates certainty and may save some court time, it could also lead to unfair demands upon either public (local authority and legal aid) or private financial resources".

Therefore, the appeal was allowed. Although, on these facts, the order below was reaffirmed, as it would have been disproportionate to remit the case to a lower court, considering the effect this would have upon the listing of other court business.

Macur LJ did also re-emphasise the application of Family Procedure rules 2010, r1.1(2) and (3) that require collaboration between parties to avoid the prospect of time-consuming satellite litigation on the issue of identifying which documents require translating and who should absorb the cost. Ideally, these issues could be decided between the parties.

In conclusion, the Court of Appeal was unable to offer a straight-jacketed clarification of the rules on this issue. However, the judgment offers valuable guidance when applying for the costs of translating documents, or when attempting to agree with the costs between parties.

 

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