The President making a costs order against Capita for failure to provide a Slovak interpreter for a final hearing.
In the matter of Capita Translation and Interpreting Ltd 2015
You might remember that what used to happen for interpreters is that you would find one, book one, they would turn up and interpret and then you would pay them. That was all far too simple, so the MOJ introduced a helpful layer of complexity and commerciality, by bringing a third party into the process.
Now what happens is you want an interpreter, you ask the Court, the Court ask Capita, Capita find an interpreter, they turn up *(ahem), you ring the Court saying where are they?, the Court say “it’s capita’s fault, not ours”, you try to explain to the client as best you can that nobody has come to interpret, you get shouted at by the Court, you adjourn off and do it all again when this time an interpreter does turn up, you pay Capita, Capita pay the interpreter.
I wrote about the President’s first go at this back in May 2014
When it emerged that Capita don’t employ interpreters, but used freelancers and that they simply didn’t have any control over whether ones they had booked to go to Court actually turned up at that hearing, or chose to do a more lucrative local hearing instead; and moreover that there was a particular systemic problem with Slovak interpreters.
The President said at that time:-
Ms Facchini’s statement is dated 14 May 2014. I need not go into the full details. That is a matter for a future occasion. For immediate purposes there are three points demanding notice. The first is that, according to Ms Facchini, the contractual arrangements between Capita and the interpreters it provides do not give Capita the ability to require that any particular interpreter accepts any particular assignment, or even to honour any engagement which the interpreter has accepted. The consequence, apparently, was that in this case the two interpreters who had accepted the assignment (one on 14 and the other on 17 April 2014) later cancelled (on 5 and 1 May 2014 respectively). The second is that it is only at 2pm on the day before the hearing that Capita notifies the court that there is no interpreter assigned. The third is the revelation that on 7 May 2014 Capita had only 29 suitably qualified Slovak language interpreters on its books (only 13 within a 100 miles radius of the Royal Courts of Justice) whereas it was requested to provide 39 such interpreters for court hearings that day. This is on any view a concerning state of affairs. If the consequence is that a hearing such as that before me on 7 May 2014 has to be abandoned then that is an unacceptable state of affairs. It might be thought that something needs to be done.
12 Whether the underlying causes are to be found in the nature of the contract between the Ministry of Justice and HMCTS or whoever and Capita, or in the nature of the contract between Capita and the interpreters it retains, or in the sums paid respectively to Capita and its interpreters, or in an inadequate supply of interpreters (unlikely one might have thought in a language such as Slovak), I do not know. We need to find out.
This is the judgment about whether Capita should pay the parties wasted costs – relying in part on Cobb J’s decision that costs could be paid by a third party who is not part of the litigation if the fault lay with them.
The particular problem with Slovak interpreters was touched on again – it being a matter of supply and demand
The wider context is illuminated by Statistics on the use of language services in courts and tribunals: Statistical bulletin, 30 January 2012 to 31 December 2013, published by the Ministry of Justice on 17 April 2014. In Q2 2012, Capita’s overall ‘success rate’ in providing interpreters requested by courts and tribunals was 92.4%. After a dip, coinciding with Capita’s reduction in the mileage rate paid to interpreters, the overall success rate had climbed again to 93.4% in Q4 2013. For civil and family cases the success rate in 2013 was lower, at 89.8%. What is striking, however, is the markedly lower success rate in relation to the provision of Slovak interpreters, only 77.7% in 2013, which was “reflected in the complaint rate which is amongst the highest of all language requests.” Indeed, “Of the 10 languages with most complaints in 2013, the language with the highest complaint rate was Slovak (8.7%). The majority of Slovak complaints came from tribunals where there was a 23.6 complaint rate.” In relation to the overall complaint rate, “In 2013, most complaints were in the South East (2,400) – 35.8% of all complaints reported. The South East had a relatively high complaint rate of 5.7%, well above the 4.1% UK average.”
The President ordered that Capita pay the wasted costs, but did not go as far as many of us would hope in saying that this should become commonplace in cases where hearings don’t go ahead because of a cock-up with interpreters
There was a certain amount of discussion before me as to whether Capita’s obligation to provide an interpreter is dependent upon it having been given reasonable notice and, if it is, as to what amounts to reasonable notice. The point does not in fact arise for decision because on any basis Capita was given more than adequate notice of the need for interpreters at the hearing on 7 May 2014. I propose to say only this. It is clear from the analysis in the ALS case that Capita is required to provide interpreters not merely 24 hours a day but also at what may be very short notice. Notice will in the nature of things often be a matter of hours at most rather than days. But there may come a point at which, given the circumstances of the particular assignment, the notice given is so short as to be meaningless. Suppose, for example, that at 10.00am the court at Llangefni (on the Isle of Anglesey) were to inform Capita that it needs an interpreter in Slovak for a hearing starting at 10.30. Would Capita be in breach of its obligations? This is a matter to be decided another day when the point arises. But without, I emphasise, deciding the point one way or the other, I have, as indicated (see paragraph 39 above), given Capita the benefit of the doubt in relation to the 37 minutes’ notice it was given of the hearing on 9 August 2012.
It is refreshing to see a Judge sitting in London who in stretching for a metaphor about somewhere being far away, casts his imagination further than Watford or Preston, and goes for somewhere off the coast of Wales. Hello people of Llangefni. You don’t get much love in law reports, so this is your moment.
The President rather nicely points out that a target of 98% is not really that useful – in every case where you need an interpreter, you actually need one – you don’t need them 98% of the time.
There have been serial failures by Capita in this case against a background of wider systemic problems. Applying the standard identified by Morritt LJ in the Globe case and Cobb J in B v B, and having regard to the principles of general application to be drawn from the ALS case, it is my judgment just in all the circumstances to make the order Mr Howard seeks. In this case, just as in B v B, the failures (here on the part of Capita, there on the part of the local authority) were, to adopt Cobb J’s words, not minor but extensive, and, at two different stages of the litigation, they had a profound effect on the conduct of the proceedings.
- I emphasise that I have reached this decision on the facts of this particular case. I am not to be understood as suggesting that Capita will be liable for each and every failure to provide an interpreter. The ALS case is clear authority against any such proposition. Nor am I to be understood as suggesting that Capita will be liable for each and every failure to provide a Slovak interpreter, lamentable though its failures to provide such interpreters were in this particular case and, seemingly, more generally. Everything will depend upon the precise circumstances of the particular case.
- Nor should it be assumed that a similar liability will extend to other private-sector contractors whose failures can impact adversely upon the court sitting-day, for example, the companies responsible for producing prisoners at court or the companies responsible for the maintenance of court buildings. Much may turn on the precise term of the agreements under which they operate, of which I know nothing and which may, for all I know, be very significantly and materially different from Capita’s agreement with the Secretary of State.
Given the President’s attempt to build bridges between Wales and the Slovak people, I’ll add my own
poď by sem. Nebudem klamať, že je to poriadok rozsudok
[Come over by here, I won’t lie to you, that’s a tidy judgment…]