Applied Language Solutions Ltd, R v

For a third-party costs order, negligence can amount to misconduct, but a single isolated administrative failure will not ordinarily be serious misconduct. Seriousness requires clear evidence of a repeated interpreter failure or an unremedied systemic defect, save for unusual circumstances. A contractor that assumes the State’s interpreter function must meet the responsibility defined by its contract. A performance indicator and service-credit mechanism do not dilute an otherwise absolute duty to supply an interpreter when required.

The appellant contracted with the Ministry of Justice to provide interpreters for courts. A Crown Court sentencing hearing was brought forward, but the appellant failed to notify the Slovak interpreter of the revised time. The hearing was adjourned, although the interpreter shortly arrived expecting the original time.

His Honour Judge Kelson QC found negligent performance by the appellant to be serious misconduct and ordered it to pay £23.25 of the prosecution’s wasted costs. The appellant appealed. The Court of Appeal considered the extent of the appellant’s contractual responsibility and whether the isolated failure established serious misconduct for a third-party costs order.

Appeal allowed; third-party costs order quashed.

1. Section 19B of the Prosecution of Offences Act 1985 requires serious misconduct before a third-party costs order may be made. The court accepted the approach in R v Ahmati [2006] EWCA Crim 1826: misconduct may include a deliberate or negligent failure to perform duties or meet a proper standard. The statutory requirement is nevertheless one of serious misconduct.

2. The appellant’s failure to notify the interpreter of the revised time was an isolated administrative error. There was no evidence of repeated failures by the interpreter or of recurring defects in the appellant’s systems. The error therefore did not, viewed on its own, amount to serious misconduct.

3. The appellant was not merely a booking intermediary. Construing the agreement purposively, in its factual setting and according to its order of precedence, it had undertaken to provide an appropriately qualified interpreter for every assignment. The 98% key performance indicator and service-credit provisions governed financial adjustment only. They did not reduce that obligation. Non-attendance by an interpreter did not excuse the appellant unless force majeure applied.

4. Repeated non-attendance by an interpreter, or a failure to correct an administrative defect known to have caused earlier non-attendance, could amount to serious misconduct for which the contractor was responsible. In future, a court should generally require clear evidence of such serious misconduct before considering an order under section 19B, unless unusual circumstances justify doing so.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the third-party costs order: [2013] EWCA Crim 326.
• Crown Court at Sheffield: His Honour Judge Kelson QC found serious misconduct and ordered the appellant to pay £23.25 under section 19B of the Prosecution of Offences Act 1985.