I read this morning the report of a Court of Appeal decision on Monday of this week overturning a third party costs order made by a crown court judge.
It’s the latest episode in the now celebrated farce of the provision by private contractors of court interpreters for defendants with insufficient comprehension of English. As in so many cases (but see below) the proceedings had to be adjourned when the Slovak interpreter did not turn up. The judge made an order that the provider should pay half of the prosecuting counsel’s costs wasted on the adjournment.
Now, although the case involved that old Private Eye favourite, “Crapita”, which has been the subject of three critical parliamentary and audit reports over its performance, it was not straightforward on this occasion. Notably, the hearing had been rescheduled only the day before and it is not clear who failed to notify the interpreter.
None of that is remarkable, but this is.
How much was involved here? Answer - the princely sum of £23.25.
The first reaction of most people will be to wonder whether it can be possibly be right that the Court of Appeal is mobilized for the sake of twenty quid that a massive enterprise like Capita has been ordered to pay.
It seems laughable against the background of all that is headed in our direction with effect from Easter Monday, headlined by the fundamental change to the overriding objective of the Civil Procedure Rules.
No longer will it be enough for courts to “deal with cases justly” – they must now do so at proportionate cost. The two requirements sit side by side.
It will be for the Court of Appeal ultimately to give guidance, if necessary, on the impact of this change but I venture to suggest that it means even if you have a good case, you cannot expect to spend disproportionate sums of money pursuing it.
On the face of it you would say that this one would not get off the ground. But of course it would because what people do, and will continue to, forget is that these rules only apply to awards of costs between the parties.
I have yet to see the full report but hazard a guess that Capita won’t have recovered their costs of this litigation, nor would they expect to. There was an important point of principle involved for them, and that’s a right to be preserved subject to the overall debate about who funds the system in austere times.
The same philosophy applies to all those supposedly insignificant claims, albeit for a hundred times and more the value of the initial costs awarded in this case. I’m talking about “small claims”, of all types, that people and businesses want and need to litigate up and down our country everyday.
From 1 April, the no-costs environment will apply to most non-personal injury cases worth less than £10,000. Insurance companies continue to hammer on the door of No. 10 for a rise in the personal injury limit.
The point is that these are claims that depend for their success on the reasonable prospect of securing a costs order against the wrongdoer, when the case succeeds. Whether it’s the litigant themselves or their lawyer taking the risk on what seems to be a meritorious case, there is hope as long as costs-shifting continues.
Unlike Capita, the majority of people for whom relatively small amounts, in litigation terms, are important cannot afford to fund their cases regardless of the outcome.
The government is now promoting contingency fees but of course has it upside down. A percentage of very little is even less. Contingency fees ought to be applied, if anything, to big value cases.
So, expect to see more not less of these anomalies. Whilst our government has decreed that it’s not appropriate for ordinary folk to have a decent chance of pursuing sums of money that might be the best part of year’s net income, its fine if you can afford to do it (Five grand).
Step forward the celebrities, Russian oligarchs, the liability insurers (still raking in the premia) and the PFI outfits scooping millions out of the public purse to provide poor service and trips to the Court of Appeal to defend it.
Oh – and one final thing – who in their right mind thinks that £46.50 is adequate reward for a barrister to turn up anywhere and do anything???