[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.
- 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)  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  EWHC 3088 (Admin),  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.