The president of the Family Division made a third-party costs order against Capita Translation and Interpreting Ltd on Monday after its failure to provide interpreters forced the adjournment of an adoption hearing last year.
Sir James Munby ordered Capita to pay nearly £13,500 to Kent County Council because it was unfair to continue with the hearing, in which a Slovak couple was opposing the adoption of their children, without the interpreters.
He rejected Capita’s submission that jurisdiction to make an adverse costs order against a non-party is, on the authorities, confined to four classes of case: (a) where the non-party has ‘maintained’ the cause of one of the parties by funding that cause; (b) where the non-party has a direct interest in the subject or object of the litigation; (c) where the non-party is a lawyer to one of the parties who has improperly, unreasonably or negligently caused costs to be wasted; and (d) where there is a direct obligation to the court under legislation.
Capita also argued that, in any event, the jurisdiction can be exercised only if there has been improper, unreasonable or negligent conduct.
However, Sir James said there was nothing in any of the authorities to which he was referred to suggest that this was indeed an “exhaustive” list and, indeed, there were examples of third-party costs orders being made in other circumstances.
But he also emphasised that he had reached his decision on the particular facts. “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 [In re Applied Language Solutions Ltd  EWCA Crim 326] is clear authority against any such proposition…
“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.”
The submissions in favour of the order drew heavily from the ALS case, which he followed even though not bound to as it was a decision of the Court of Appeal’s criminal division.
The case established that Capita’s failure to provide the interpreters was a breach of its agreement with the Ministry of Justice and that Capita is in principle amenable to the court’s jurisdiction under section 51 of the Senior Courts Act 1981 to order a non-party to pay costs.
This article was originally posted by by Association of Costs Lawyers (ACL e-Bulletin) and can be found here.