As part of Jenny Kennedy’s catastrophic injury practice, I have had experience of dealing with clients from all over the world, including Europe, South America, North America and Asia. Often our clients and their families understand little or no English which makes communication and providing advice a challenging task.
Jenny is currently acting for a client from China who suffered a serious head injury whilst visiting London in October 2012. She received emergency care at King’s College Hospital and then within a few weeks flew home to be cared for her by her family. She has suffered permanent and life changing injuries. She no longer has the capacity to manage her own affairs and her father acts as her litigation friend.
Our client can speak a little English but her father cannot speak any. It is vitally important that they both understand all the issues in her claim and the advice we are providing. The only way to do this is to ensure that we have access to an interpreter for all client meetings and telephone conversations. All letters of advice and expert reports have to be professionally translated. The costs of translated documents average out at approximately 12p per word. There will be several expert reports in head injury cases most of which will be detailed and of significant length. The majority if not all of the lay witness evidence will require translation. Our experience is that translation costs can run into tens of thousands of pounds.
This matter was issued in court recently and therefore was subject to the usual process of costs budgeting. Predicting and estimating the costs in a complex head injury case is difficult in any event but trying to estimate the potential translation costs was in our view impossible. Whilst there is a provision in the CPR to allow the parties to apply to amend their budgets we considered that this was likely to cause delays to the case. We would constantly have to apply for our budget to be increased before we could do the necessary work which would only increase costs long term.
Therefore, when this matter was listed for a costs case management conference (CCMC) in the High Court we asked the defendant to agree to exclude the costs of translation from the budgeting. The defendant did not agree to this approach so we issued an application to be heard before the Master on the date of the CCMC. The CCMC and our application were listed before the Master Davison on 21 April 2016.
At the hearing, the defendant argued that if translation costs were not included in the budgets then there was a real risk that costs incurred would not be reasonable or appropriate. We argued above that it was not possible to accurately estimate the translation costs and this would likely lead to us applying to amend at a later incurring additional costs and potentially upsetting the court timetable.
The Master allowed our application and excluded the costs of translation from the budgeting exercise. He accepted that it was difficult to estimate translation costs and said that these were unusual circumstances. He did stipulate that the claimant was to keep the defendant regularly updated as to the ongoing translation costs every quarter day.
Ultimately we believe this decision will reduce costs overall as it will avoid several applications to amend our budget. The defendant will also have a clear idea of the ongoing costs as the case progresses.
This decision will be helpful to all practitioners acting for clients in serious injury cases when interpreting and translation costs are likely to be significant.