If like me you have been in a position where your client’s first language is not English and you’ve had to ensure that appropriate steps were taken to translate their evidence as per CPR 32 then you will also know the financial burden of doing so when it is a fixed recoverable costs case.
This is because Defendants would rely on the case of Aldred v Cham [2019] EWCA Civ 1780 to argue that the cost of translation was not recoverable on the basis that the disbursement was not one that fell within the prescribed disbursements in CPR 45.29I and was not a particular feature of the dispute (45.29I(2)(h) of CPR).
I had the same issue in my litigation and advocacy practice.
I could not imagine how discriminating it would have been to say to a prospective client “unless you can cover the cost of translating, which you cannot recover even if you are successful, then I cannot take your case on”. Either the law firm shouldered the cost or the Claimant did. Hardly fair for the latter if they were impecunious.
Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838 was handed down yesterday which turned that approach upside down.
Santiago v MIB – First Instance
Mr Santiago spoke Portuguese and spoke very little English. He was required by CPR PD32 his statement was prepared in Portuguese. Interestingly, an employee of the solicitors prepared his statement in Portuguese (which could have potentially been reconcilable with Correia v Williams [2022] EWHC 2824 (KB) and ended in disaster a trial). The Solicitors were alive to the fact that the directions required a ‘suitability qualified independent interpreter’ at trial. They, as per the Order, arranged for an interpreter.
Given the need for suitability qualified (i.e. able to be fluent in both the language and potential dialect) and independent would mean most who could afford services without cost (friends, family, employees of the firm) would be unfit for such a role. This is of course what many cases, up and down the country, were subject to.
Mr Santiago’s claim settled the morning of trial. The DDJ Sneddon appeared to be inclined to award the costs of the disbursements. She did feel “constrained” by the decision of Aldred which was binding on the Judge, and therefore did not allow the cost..
She granted permission to appeal and the Circuit Judge who considered the appeal, leapfrogged it to the Court of Appeal.
Santiago v MIB – Court of Appeal
The Court of Appeal concluded that:-
- The need for an interpreter is essential if the person or witness did not speak adequate English
- The cost of translation could not form part of the lawyer’s fee and therefore the cost could not form part of the ‘swings and roundabouts’ remuneration of fixed recoverable costs (i.e. x amount of cases would be a windfall and others would not and it would be broadly in favour of Claimants overall).
- There was a clear distinction between Counsels’ fee (which is what was address in (Aldred) and the cost of interpreter in respect of ‘access to justice’
- The above allowed this particular Court of Appeal to not be bound by Aldred and that a particular characteristic of a person or witness would prevent access to justice.
- A translator would enable the dispute to be determined by the Court in accordance with the overriding objective and therefore did meet the definition of a disbursement that was reasonable required due to a particular feature of the dispute.
The Court of Appeal allowed the appeal. Like with any appeal, the Defendant may seek permission to appeal the decision. The MIB would need to seek permission from the Court of Appeal in the first instance.
So what does this mean in practice?
A Defendant may not be able to object to paying the cost of the translation fee but it will be subject to what is reasonably incurred. I anticipate this will be a new battleground for satellite litigation as another means of reducing the liability it must pay when a claim settles, or the Claimant succeeds at trial.
What may go against the Defendant is the decision of Correia. In that High Court appeal, Garnham J refused an appeal on a matter where the Claimant’s witness statement was deemed by the trial Judge as non-compliant. The trial Judge refused to allow the Claimant various options to remedy the defect, including having the English copy at trial translated into Portuguese. Judge Gerald found that to do so would be double translation and would amount to something that is akin to leading questions (asking a witness to agree to a statement prepared for them, rather than asking open questions).
Garnham J agreed that such reasoning was good and was entitled to reject those unsatisfactory or unfair options. Therefore, it would be recommended that when a witness’ evidence is taken it is done so in a contemporaneous and in their own language.
To do this a party ought to:-
- Ask questions of the party/witness via a translator,
- Ask the translator to tell you what the party/witness said.
- If appropriate, ask the translator to write down what the party/witness said, in their own language.
- Instruct someone to put together the witness statement using the content in he party/witness’ own words/language
- Put that statement to the party/witness
- Once approved, ask a translator to prepare a copy of the statement accurately translated into English
- As the translator to prepare a statement to confirm the English copy is an accurate translation of the party/witness’ statement.
This is a lengthy and expensive process, which ensures compliance with CPR PD 32 and can be argued to be reasonably incurred.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.