Raphael De Lima Santiago v Motor Insurers' Bureau

Under CPR 45.29I(2)(h), an independent interpreter’s fee can be recovered as a disbursement where it is reasonably incurred to enable a party or witness who lacks adequate English to participate fully in a hearing and give their best evidence. The phrase particular feature of the dispute is not confined to features generated by the underlying accident or claim. The overriding objective informs interpretation and supports equal footing and access to justice. Cham (A Child) v Aldred [2019] EWCA Civ 1780 was obiter insofar as it addressed interpreter fees and was distinguishable on access-to-justice grounds. The fee is not recoverable as a disbursement if already remunerated within the fixed costs.

Mr Santiago, a Brazilian national with poor English, brought a road traffic accident claim. An independent interpreter was required for the trial. The claim settled before trial for £20,000, but the Motor Insurers’ Bureau resisted recovery of the interpreter’s £924 fee.

Deputy District Judge Sneddon, sitting in the County Court at Mayor’s and City of London, held that the fee was not recoverable, considering herself constrained by Cham (A Child) v Aldred [2019] EWCA Civ 1780. The appeal concerned whether the fee was a disbursement under CPR 45.29I(2)(h), whether it was already covered by fixed costs, and how the overriding objective and vulnerability provisions affected that interpretation.

Disposition. The appeal was allowed on the principle of recoverability. The court did not determine whether the whole fee was reasonable or what amount should ultimately be allowed.

1. Costs structure. Section IIIA of CPR Part 45 distinguishes fixed costs for legal representatives’ services from disbursements for other expenses incurred by or on behalf of a client. There was no basis for treating an independent interpreter’s fee as included in Table 6B. The fixed-costs “swings and roundabouts” argument therefore did not apply.
2. Overriding objective. CPR 1.2(b) required the court to interpret CPR 45.29I consistently with the overriding objective. The objective includes ensuring equal footing, full participation in proceedings and the giving of best evidence. The 2021 amendments and Practice Direction 1A expressly recognise communication and language difficulties as potential vulnerability. An interpreter is essential for a person who cannot adequately speak or understand English to participate fully and give best evidence.
3. Construction. The words “the dispute” are capable of bearing a broader meaning than matters generated by the underlying accident or claim. The word “other” in sub-paragraph (h) supports treating travel expenses and loss of earnings under sub-paragraphs (f) and (g) as participation-facilitating disbursements. Interpreter fees have the same defining feature.
4. Cham. The Court of Appeal in Cham decided issues concerning counsel’s advice in a child settlement case. Its statement that linguistic ability was a claimant characteristic rather than a dispute feature was strictly obiter insofar as it addressed interpreter fees. The present court was not bound to apply that statement on materially different access-to-justice facts. Cham remained ordinarily applicable where expenditure was required to determine a particular issue rather than caused by a party’s characteristic, but a broader interpretation was required where exclusion of the expense would prevent full participation.
5. Application. Assuming the interpreter’s fee was reasonably incurred, it fell within CPR 45.29I(2)(h). The court found it unnecessary to determine the arguments based on Articles 6 and 14.

• Court of Appeal (Civil Division) — in Raphael De Lima Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838, allowed the appeal on the principle that a reasonably incurred independent interpreter’s fee may fall within CPR 45.29I(2)(h).
• County Court at Mayor’s and City of London — Deputy District Judge Sneddon held that the interpreter’s fee was not recoverable, considering herself constrained by Cham (A Child) v Aldred. Permission to appeal was granted and the appeal was transferred to the Court of Appeal.