​WHO PAYS THE COSTS OF TRANSLATION? THE COURT OF APPEAL SAY – “IT DEPENDS”

Rosemary Exall

The question of who pays for the costs of translating documents in childcare proceedings is an important practical issue.  In Re Z (A Child) [2017] EWCA Civ 157 the Court of Appeal recognised this as an issue that is increasingly important.

BACKGROUND TO THE APPEAL

In a case management order the circuit judge ordered that the local authority pay the costs of translating documents.   The local authority applied to vary this order when it authority became aware that, in another case, a judge had ordered that the parents pay the costs of translation (R(A Child) (Translation of Documents in Proceedings) [2015] EWFC B112 on the grounds that the parents were the parties requiring the translation.  The judge refused to vary his order, the local authority appealed.

THE DECISION OF THE COURT OF APPEAL

• In childcare proceedings it was inappropriate to consider documents being produced as being for the “benefit” of any particular party.                       

“These reports are not “for the benefit” of the party that produces it/ them. Other documents may support the local authority in one respect but the parent in another. There may be a “shared forensic interest” as identified in Calderdale Metropolitan Borough Council v S and the Legal Services Commission [2005] 1 FLR 751. That is, it is impossible to state authoritatively that any documents produced by one party or another at whatever stage in the proceedings, will be in support of their case”

• Section 51(1) of the Senior Courts Act 1981 gives the court full power to determine by whom and to what extent costs should be paid.
• The question of who pays for translation costs is similar to the issue of who pays for expert evidence.

“Black LJ, in JG v The Lord Chancellor and Others …analysed previous pertinent authorities and concluded at paragraph 90 that:

 “the court has a discretion as to what order is made as to the costs of instructing experts in family proceedings and that that discretion must be exercised bearing in mind all the circumstances of the particular case…The careful examination of Bodey J and Ryder J of the various factors in play in the Calderdale case and the Lambeth case shows the importance of tailoring the order to the facts….”

• The question of who pays the costs is a matter of discretion for the judge depending on the circumstances of each case.

“36. There can be no criticism of any judge who determines that, bearing in mind the circumstances of a particular case, the party bearing the burden of proof shall be responsible for translation costs of a relevant document. The circumstances of other cases may reasonably inform a view that the party which requires the translation should bear the cost. Both of these views may be reasonable in the context of the case in hand, but cannot be considered as determinative of the issue across all cases.

37. 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.”

• The parties are under a duty to co-operate in considering what documents should be translated and who pays the costs.

“The application of Family Procedure Rules 2010, r 1.1 (2) and (3) require collaboration between parties to avoid the prospect of time consuming satellite litigation on the issue of identification of which documents, or parts of the same, it is necessary to translate and in summary or full, together with a non-partisan appraisal of which party it would be reasonable to invite the judge to order to pay, or contribute towards, the costs of the same”

THE RESULT OF THE APPEAL

The Court of Appeal held:

• That the judge’s general approach that the paying party should be the party who “relied” on the documents was the wrong test.
• The counsel in the appeal were not able to assist with the details of the case nor with the substance of the documents.
• The costs of remitting the issue would exceed the translation costs (£14,119.75) and adversely impact upon other more pressing family court matters.
• Although the judge exercised his discretion on the wrong basis the Court of Appeal did not have sufficient information to exercise its own discretion. It, therefore, affirmed the judge’s order.

COMMENT

This represents the extent of the guidance given. There is little, if anything, that deals with the particular matters that the judge must consider when exercising their discretion.