In the recent case of Z (A Child)  EWCA Civ 157, the Court of Appeal handed down guidance as to the exercise of judicial discretion in the matter of apportionment of costs of translation of documents in proceedings. Despite practitioners grappling with this issue on a daily basis in the Family Court and Court of Protection, this is in fact the first occasion on which the Court of Appeal has considered the issue.
The appeal arose from a determination of HHJ Oliver, sitting as a deputy high court judge, in which he directed the local authority to bear all the costs of translation of a number of documents to be provided to the parents in care proceedings. The reasoning behind the Judge’s order was summarised at paragraph 81 of his judgment as follows:
“So, drawing all these points together, I see a clear structure for the costs of interpretation and translation:
a) Interpretation in court is the responsibility of HMCTS
b) Out of court interpretation falls to an individual party’s public funding certificates
c) The cost of translating pre-proceeding documents falls to the local authority in any event (LAA Guidance on Remuneration of Expert Witnesses paragraph 6.21)
d) Only those documents which are necessary should be translated (Re L)
e) Which documents need to be translated is a matter which needs to be determined during the case (and probably done on a Section of the Bundle basis….)
f) The determination of which document should be translated has to be made by the judge
g) Once that decision has been made, the burden of paying for the translation of a document shall fall on the party who produces it.”
Points (a)-(e) were largely uncontroversial. What the Local Authority’s appeal, therefore, focussed on was the judicial justification for point (g) in care proceedings, where the party ‘producing’ the vast majority of documents would almost always be the Local Authority. Finding for the Local Authority on this point, the Court of Appeal concluded:
- HHJ Oliver’s view that the party who bore the burden of proof in relation to a particular issue should translate the documents pertaining to that issue was a view the Court could “well understand”, subject to the forensic need for those documents per Re L above (paragraph 31);
- However, this approach could not withstand those situations in which “documents are produced by one party, against [their] interest, but in observance of the public interest of disclosure in proceedings”. Such documents were not “for the benefit” of the producing parties in a traditional sense; there could well be a “shared forensic interest” in the documents, such as to justify costs sharing (paragraph 32).
- Accordingly, the apportionment of the costs of translation should be approached on a case by case basis, bearing in mind all the circumstances of the case. Consideration of the issue by the Court “devoid of context [did] not connote a reasonable exercise of judicial discretion” (paragraphs 35-37).
- Both the European Directive and Article 6 ECHR were irrelevant to the point in issue. The question was not whether the documents were translated, but how the costs should be apportioned. These frameworks added nothing to the above points (paragraphs 21, 22 and 29).
Though strictly a case involving family proceedings, it is the author’s view that these points are capable of applying equally in the Court of Protection, as the question of apportionment of translation costs is often a fraught one regardless of forum. The increasing costs of translating documents, accompanied by an increase in the sheer numbers of documents requiring translation, have put considerable pressure on local authorities and the legal aid agency alike. In this context, practitioners are likely to welcome the clarification that the Court of Appeal has provided, and to seek to rely on the comments made in this judgment in an appropriate case.