Court interpreters win £23.25 misconduct appeal

The company appointed by the Government to handle court translation services, Applied Language Solutions (ALS, now Capita Translation and Interpreting) has won an appeal against a third-party costs order and a finding of serious misconduct.

ALS was appointed by the Ministry of Justice (MoJ) to provide translation and interpretation services to the courts. In April last year Her Majesty’s Courts and Tribunals Service (HMCTS), on behalf of Sheffield Crown Court, asked for a Slovakian interpreter to attend court for a sentencing hearing.

The time of the hearing was subsequently changed, but a chain of errors meant that the interpreter was not told of the time change. His Honour Judge Kelson QC, in charge of the hearing, subsequently made a third-party costs order requiring ALS to pay half of the counsel for the prosecution’s fee for the hearing of £46.50 – £23.25- finding that the company had been negligent. The amount was reduced because HHJ Kelson said there was some force in the contention that HMCTS should have called the company when it found that an interpreter was not present.

In a judgment handed down today the Court of Appeal (CoA) overturned HHJ Kelson’s order. Sir John Thomas, the president of the Queen’s Bench division, sitting with Mrs Justice Smith and Mr Justice Cranston, said the failure that occurred in this case “cannot viewed in isolation amount to serious misconduct”. The CoA added that “there was no evidence that the failure was anything other than an isolated failure. There was no evidence of a number of other previous failures by the interpreter in question or failures in the appellant’s system.”

The judgment said that serious misconduct might arise if there was evidence of a failure to remedy a defect in ALS’s administrative systems that had caused non-attendance of interpreters in the past.

“A court should not generally, in the future, consider making an order under s.19B without clear evidence of serious misconduct,” the CoA said, “unless there are unusual circumstances which justify the making of an order.”

The judgment began by noting: “Although the sum in issue in this appeal was only £23.25, it raised an important point as to the circumstances in which a court could exercise its power to make a third-party costs order where a private contractor has been given the responsibility of performing duties hitherto performed by the state.”

In the past ALS has been criticised for errors, leading to a House of Commons inquiry into the MoJ contract (20 July 2012).

Freeth Cartwright partner Deryck Houghton instructed Five Paper Buildings’ Ian Wade QC and St Johns Buildings’ Laura Marshall for ALS. HMCTS and the MoJ were not represented.