[See last blog]
An email came to me suggesting that it could be argued that rather than the Legal Aid Agency paying for the intermediary, it could come from HMCTS. I.e the Court pays.
Thinking of it in that way, it occurred to me that the President had floated in Q v Q the idea that HMCTS paying for a lawyer for an unrepresented person was analogous to HMCTS paying for interpreters or intermediaries. But I knew that the final conclusion in Q v Q was appealed when HH J Bellamy made such an order in Re K and H. So, does perhaps the Court of Appeal decision in Re K and H 2015 give us an answer on this?
I think that it does.
http://www.familylawweek.co.uk/site.aspx?i=ed145039
- As we have seen, in reaching his conclusion, the judge was influenced by the fact that HMCTS meets the cost of interpreters, intermediaries and the preparation of court bundles under the Financial Resources Regulations. He said that these are “aspects” of “representation” within the meaning of section 42 of LASPO. Section 42 defines “representation” as meaning “representation for the purposes of proceedings” and includes “the advice and assistance which is usually given by a representative in the steps preliminary or incidental to proceedings”. He considered that by analogy, HMCTS has the power to meet the cost of legal representation.
- I do not accept that interpreters or intermediaries are “representatives” within the meaning of section 42, still less that they provide the services of a legal representative. In In the Matter of D (a child) (No 2) [2015] EWFC 2, Sir James Munby said at para 17:
“The cost of funding an intermediary in court properly falls on Her Majesty’s Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of ‘representation’ but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X, para 37 and C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735, paras 26-27.”
- I agree with this. Nor do I see how the fact that HMCTS funds the preparation of court bundles from time to time sheds any light on whether the court has power to require HMCTS to fund the cost of legal representation.
For me, that seems to settle it. The LAA should not be asked to fund an intermediary, but instead it should fall on HMCTS. Re D is binding on most Courts as a High Court authority, and given that the Court of Appeal looked at it in Re K and H and agreed, it binds just about everyone. The Court of Appeal specifically AGREED that the cost of funding an intermediary in Court properly falls on HMCTS.
So having identified a problem, I’ve accidentally solved it.
What I don’t yet know is whether the Court has a duty to provide the intermediary once a recommendation is made or whether the Court could press on without one. (remembering that whilst an expert recommends something, it is ultimately a matter for the Judge whether to accept that recommendation).
I don’t think that a Judge could say “I agree with Dr Nolan that an intermediary is required, but I am not going to order one because of X” but that a Judge COULD say “Dr Nolan says that an intermediary is required – I have decided that it is not required because of X”. It always makes me a bit uncomfortable the notion that a Judge (who is ultimately employed by HMCTS and to some extent accountable to them) has to decide whether HMCTS should incur expenditure.
suesspiciousminds 
This is going to crop up if Amendment X (for children and vulnerable individuals) is made and incorporated into FPR 2010 in anything like the present draft form (see eg http://www.familylaw.co.uk/system/redactor_assets/documents/3211/Annex_A_Draft_Family_Procedure_Rule_amendment.pdf).
‘Intermediary’ provision is prominent amongst ‘measures’ in draft r 3A.7(1). Translators – yes I can see that; but eg interpretors for the deaf where a charity is already helping; advocates to the court in PII and closed procedure cases (now via At Gen); and help to a judge per MFPA 1984 s 31G(6): I wonder?… What is fairly clear is that the rules committee did not think about any funding issues when they sent out their draft rules for consultation.
PS consultation ends today https://dbfamilylaw.wordpress.com/2015/09/25/d-day-for-submissions-on-vulnerable-individuals/
Yes, those new rules aren’t going to be much help without proper provision for who is to fund these matters (and ideally some form of budgetary provision for it), and whose responsibility it is to set these things up in advance.
Sorry, me again. Re D (which you mention: http://www.bailii.org/ew/cases/EWFC/HCJ/2014/39.html ) is binding on no-one. There was no ratio (resaon for a decision) in Re D (there was no issue before the court). It is just an authoritative harrumph from the eminent Sir MunP – no more… And in K & H comments on re D were not part of the decison-making process: again tehy do not advance the body of the law: no one can be bound by them, least of all teh tax-payer who is being asked to pay. No?
Not ratio, but the principle is there. If we were being strict about ratio, then pretty much everything said in Re B-S is completely academic to the case that the Court of Appeal was deciding since the Judge in the case they were considering had not fallen into any of the errors that they were roundly critiquing and thus only about 2% of the judgment is binding on anyone else.
I agree that there’s a larger issue about how much law is being distributed now via senior Courts making commentary / quasi political decisions rather than on strict ratio principles that are necessary to resolve the instant issue before them, but I think we’d be trying to hold back the tide when the water is already round our waist.
I did wonder whether the C v Sevenoaks Youth Court 2009 might have it as ratio, but looking at it, though the Court did hold that the Court had an inherent duty to provide an intermediary, they also ruled that it flowed from the Criminal Procedure Rules. Also, because the MOJ in that particular case had AGREED to pay, it can be said that it wasn’t an issue that the Court HAD to determine.
Let’s say significantly persuasive, rather than binding.
I can’t track through the reference to the “Financial Resources Regulations” without a year or regulation… I’ve had a look at the Regs that I thought it might be referring to and nothing within it seemed relevant. It might be that the definitive answer is in there.
At some point, David, the taxpayer is going to be paying for the provision of an intermediary – so all we are really arguing about is out of which budget. [Or just not having them, and spending lots more taxpayers money appealing decisions that took place without proper protections for vulnerable witnesses]
And of course, as a taxpayer, what I really want is for this sort of issue to be resolved so that I’m not spending more money in tax funding lawyers to ARGUE about who should pay then I would be spending in actually getting the service provided….
Judges are not employed by HMCTS. They are not answerable to HMCTS. A JUdge is appointed by the Queen, and constitutional are completely independent. The head of the Judiciary is the Lord Chief Justice, not Michael Gove or head of HMCTS.
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