A private company providing interpreter services on behalf of the State appealed a third party costs order for causing a sentencing hearing to be adjourned on the ground that the judge erred in finding serious misconduct, raising the issue as to the circumstances in which a court may exercise its power under s. 19B, Prosecution of Offences Act 1985 against a private contractor which has assumed responsibility for discharging an obligation of the State.

Appeal allowed and order quashed. Held: Whether there has been a deliberate or negligent failure to perform an obligation of the State requires the court to examine the nature of the contractual obligations a private company has undertaken. In the present case, the obligation to provide interpreter services was absolute. Non-performance resulting from a failure by an interpreter to attend was only excused if it was caused by force majeure. However, a single failure cannot be viewed in isolation. As such, successive non-attendance of an individual interpreter or successive failures in systems may amount to serious misconduct justifying a third party costs order under s. 19B. However, a court should not generally consider making such an order without clear evidence of serious misconduct, unless unusual circumstances justify it. In the present case, there was no evidence of serious misconduct before the judge and the appellant undertook to assist the court on any occasion where an interpreter does not attent by providing an explanation and, if appropriate, to provide necessary disclosure in respect of any failure of systems or any previous failures by that interpreter.