The Dekagram: 2nd April 2024

Articles, News

02/04/2024

Rainer Hughes Solicitors v Liverpool Victoria Insurance Co Ltd, Karadag, Ilieva [2024] EWHC 585 (KB)

In a recent case Martin Spencer J dismissed an appeal from His Honour Judge Monty KC, who  (it was held) had been entitled to order a firm of solicitors to pay sums by way of wasted costs in a personal injury claim, and the costs of the wasted costs application, on the basis that their failure to provide properly translated statements for the claimant, their client, was negligent and a breach of its duty to the court.

The facts

The appellant firm of solicitors appealed against an order requiring them to pay the first respondent insurance company (R1) £3,000 by way of wasted costs in a personal injury claim, together with the costs of the wasted costs application.

The second respondent (R2) had been driving a vehicle, in which the third respondent (R3) was a passenger, when she was allegedly involved in a road traffic accident. The other vehicle was driven by an individual insured by R1. R2 and R3 issued proceedings seeking damages for personal injury. R1 subsequently applied to the court for permission to resile from its earlier admission of liability, to plead fraud, and to bring a counterclaim in the tort of deceit against R2 and R3. R2 instructed the appellant to act for her in defending that claim. One of the appellant’s file handlers (B) prepared a witness statement on R2’s behalf which was in English. There was no Turkish version. At the start of the trial, counsel for R2 told the judge that she was unable properly to read her witness statement or the pleadings, which were in English, as she was only proficient in Turkish. R2 had attended court with a Turkish interpreter, but it proved impossible for the statement and the pleadings to be translated into Turkish that day. One can only extend the greatest sympathy for the representative at court on this occasion – it’s happened to us all, albeit not with the consequences which then followed.

The judge struck out R2’s claim on the basis that she had failed to pay the trial fee, and also struck out her defence to the counterclaim. He indicated that the trial could not have gone ahead in any event because of the language issue. R2 and R3 were directed to pay costs, and at R1’s request, given the issues around the translation of the statement and pleadings, the judge ordered the appellant firm to show cause, pursuant to CPR Part 46.8, why they should not be jointly liable for some or all of R2 and R3’s costs, and (in the usual way) gave directions for the service of evidence by the appellant. The appellant’s senior partner provided a witness statement indicating that at the initial meeting between B and R2, the latter had clearly had a good grasp of English, that there had been no indication at any point since instruction that R2 was unable to understand the proceedings, and that her statement had been filed and served in English with her signature without further reference to any translation required.

In reply, R1 asserted that correspondence indicated B’s awareness that R2’s statement required translation, and that the appellant was unable to source her statement in Turkish due to time constraints. R1 therefore asserted that the appellant was well aware of the need to translate the reply to the defence, but had not done so. It is right to note that in the pre trial checklist the appellant had indicated that R2 would require an interpreter at trial, and that as a consequence at the pre trial review HHJ Letham had directed that the appellant take instructions and clarify in writing that the Claimants’ witness statements were compliant with CPR 32 and that the Statements of Truth complied with CPR 22 and indicate in writing the level of her grasp of English.

The judge at the wasted costs hearing stated that if a witness was not sufficiently proficient in English to give evidence at trial in English, their witness statement had to be in their language of choice, with a certified translation, and they would require an interpreter when they gave their oral evidence at trial. He found that it was flagged from the outset that R2 would need a translator, that the appellant should have realised that there was a need for properly translated statements, and that their failure to do so was negligent and a breach of their duty to the court, which had led to costs being wasted. He ordered the appellant to pay wasted costs, which he summarily assessed in the sum of £3,000. He further ordered that the appellant should pay R1’s costs relating to the wasted costs application, which he summarily assessed on the indemnity basis in the sum of £9,500. He also ordered the appellant to pay R2 and R3’s costs of the wasted costs application, summarily assessed in the sum of £4,000.

In what readers may feel was a bold move given the found facts, the appellant contended that the judge had erred procedurally in failing to consider proportionality as a preliminary issue before going on to consider the merits of the application for wasted costs.

The appeal

Perhaps unsurprisingly, Martin Spencer J held that there was a public interest in costs which had been wasted as a result of a solicitor’s negligence or misconduct in the proceedings being visited on the solicitor (rather than his client) in the form of a wasted costs order. First, this encouraged lawyers to comply with the rules of the court. Secondly, it immediately relieved the costs burden from the solicitor’s client, who would otherwise potentially need to take negligence proceedings against the solicitors with all the additional costs that would incur. For those reasons, an appellate court would be very slow to find that a judge had misapplied his or her discretion in allowing a wasted costs order to proceed.

In relation to procedure, there was merit, whenever an application for a wasted costs order was sought, for the judge to consider proportionality and whether, on the information available, (s)he should exercise his or her discretion to allow the application to proceed. There might be cases where the issues of impropriety were so complicated or clearly contestable that a judge could foresee that the costs would far outweigh the sums at stake, so that such a hearing would be disproportionate. On the other hand, there might be other cases where the judge considered that the case was so clearcut and obvious that it was very unlikely that the wasted costs application would be contested, and it would be straightforward. There were, however, cases which fell into a middle ground and in these cases the discretion of the judge was in play. The ambit of this discretion was wide, and would not be lightly interfered with by an appellate court.

The case appealed was such a case: on the basis of the facts as they appeared to the judge, a solicitor had failed to comply with the requirement to have the witness statement and pleadings translated in the claimant’s own language, which was Turkish. The judge had made no procedural error and was entitled, in the exercise of his discretion, to make the order for wasted costs.

Comment

The judgment of Martin Spencer J is a good example of a case where, in the view of the author, the appellant would have been well advised to move on from the judgment at first instance, which was commended by the appeal court in glowing terms:

“…I wish to commend the clarity and careful nature of the Judgment given by HHJ Monty KC in this case which was, as it seems to me, a model of its kind and made this court’s task so much easier in adjudicating upon this appeal.”

This approval of the first instance judgment stands in stark contrast to the view taken by Martin Spencer J of the appellant’s conduct of the litigation generally and of the wasted costs litigation in particular. No solicitor wants to be accused of ‘defending the indefensible’, and particularly not when the indefensible conduct in question is his or her own.

The case is also a reminder that courts are becoming less and less sympathetic to solicitors apparently unaware of their clients’ linguistic parameters; it is imperative that litigators ascertain that their clients can read and write the language in which their witness statements are made, and if not, that they are translated or read to them appropriately and that this process is properly documented. Gone are the days when lax judges would allow ad hoc translation at court (in one memorable case, from Geordie to High Court Judge English). And this, it is suggested, must be right; it is self-evident that a witness cannot do him- or herself justice, particularly where fraud is alleged, if attempting to give evidence using a witness statement he or she cannot understand.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

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Sarah Prager KC

Call 1997 | Silk 2023

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