In your own words

Frequently, in overseas injury claims, one (or perhaps both) of the parties seeks to adduce evidence from a witness whose first language is not English.  Before getting to the issue as to whether that witness will be able to give oral evidence at trial by video (a topic for another day), there will need to be a suitable written statement for that witness.  The experience of a witness statement in English put before the court when it becomes quickly apparent that the witness is unable to speak or read English, is not a happy one.  It is important to bear in mind the requirements of the CPR as to how the statements of witnesses in such cases should be prepared. 

The requirements are contained in a number of provisions.  As a starting point, PD 32 should be considered.  Paragraph 18.1 states that a witness statement must, if practicable, be in the witness’s own words “and must in any event be drafted in their own language”.  Paragraph 18.1(5) provides that a witness statement should state the process by which it was made, such as via an interpreter.  Paragraph 19.1(6) again makes the point that the statement should be “drafted in the witness’s own language”.  Finally, paragraph 23.2 states that where a witness statement is in a foreign language then the party wishing to rely on it must have it translated and must file the foreign language statement with the court, and a translator must “sign the original statement and must certify that the translation is accurate”.

Certain High Court practice guides also contain relevant information.  The King’s Bench Guide (2024) states, at paragraph 10.62, that: “If a witness is not sufficiently fluent in English to give their evidence in English, the witness statement should be in the witness’s own language and a translation provided”.   The latest edition of the Chancery Guide (2022; but updated December 2024) refers to paragraph 3.3 of PD 57AC “when considering the language in which to draft any witness statement”.  That Practice Direction emphasises that a witness statement must comply with paragraphs 18.1 and 18.2 of PD 32, but clarifies that “for that purpose a witness’s own language includes any language in which the witness is sufficiently fluent to give oral evidence (including under cross-examination) if required, and is not limited to a witness’s first or native language”.

The wording that is now to be found in the Chancery Guide was found to properly reflect the meaning of paragraph 18.1 of PD 32 in Afzal v. UK Insurance Ltd [2023] EWHC 1730 (KB).  That is to say, the language of a witness statement can be any language in which the witness is sufficiently fluent to give oral evidence.  In Afzal, Freedman J allowed an appeal from a decision in a County Court trial refusing permission to rely on a witness statement drafted in English; although the claimant in that case spoke both English and Urdu, the County Court judge considered that the statement was not drafted in the claimant’s “own language”.  Freedman J held that “the Judge was wrong to reach a conclusion that the language of the witness statement had to be the first language of the claimant, and that it was highly relevant that the claimant read, understood, conversed and gave instructions in English.  If there were doubts about the proficiency of the claimant as to whether the claimant was sufficiently fluent, then that could have been tested with a view to considering whether the evidence should be excluded.  There was no such exercise before the court.”

It is not uncommon for a witness to be able to communicate well in English, and possibly be able to provide the details to form a witness statement in English, yet request an interpreter for the purposes of giving oral evidence at trial.  In those circumstances, it is suggested that it would be a risk to rely on a witness statement drafted in English.  A court may well hold that the statement is not in the witness’s own language if, come trial, the witness gives oral evidence through an interpreter.

If the witness’s own language is not English, then it is important to follow the other requirements of PD 32.  The rules in this regard were held by Garnham J in Correia v. Williams [2022] EWHC 2824 (KB), [2023] 1 WLR 767 to provide “an important discipline for litigants and their advisers and were not lightly to be ignored”.  In that case, the witness statement was in English but the claimant (a Portuguese national) was “not wholly fluent” and relied on the assistance of a translator.  The statement had apparently been read back to the claimant in Portuguese, and a statement to this effect was included along with the statement of truth.  However, there was no witness statement written in Portuguese.  This was held to be a defect of substance with the result that the statement would not be admitted unless the court gave permission.  The High Court found that the trial judge had been entitled to refuse to admit the statement.

One of the reasons for not admitting the witness statement in Correia was that the statement was, in essence, an “account of events drafted by the [claimant’s] solicitor, in a language in which the [claimant] was not fluent”; to admit such a statement would pose difficulties in tying the claimant down to that account of events.  Arguably, there would remain such difficulties if the statement was originally drafted in English, but then translated (in writing) into the witness’s own language for the witness to sign.  The Practice Direction requires the “statement” to be in the witness’s own language.  As seen above, paragraph 23.2 of PD 32 refers to the “original statement” as opposed to the “translation” (although it is perhaps curious why the translator has to sign the original statement, rather than the document which is the result of their translation).  Best practice would be for there to be an original document drafted in the witness’s own language, with the English version being the translation.  It would, however, be a relevant distinction with Correia if there were written statements in both languages, whichever document came first; but it would probably rely on the judge’s discretion as to whether or not the evidence would be admitted.

If there are issues as to compliance with these rules it is undesirable for the point to be left until trial.  Sometimes it is unavoidable: in Afzal, the issue seems to have been raised by the County Court judge herself, although possibly after it had been intimated that counsel for the defendant would ask questions about the claimant’s level of English.  In the recent case of Berresford v. Shah [2024] EWHC 3500 (KB), there was a late application to exclude a witness statement for failure to comply with these rules, the application being made less than 3 clear days before the trial commenced.  The judgment does not go into detailed reasons why the judge had ruled at the start of the trial that permission would be given for the statement to be relied upon, but the judge does note that: “There was no explanation for the application being so very late other than it was a point that had been noted by counsel when she was instructed for the purpose of attending trial”. 

In a case involving not an overseas accident but almost exclusively foreign witnesses, Yordanov v Vasilev & others [2024] EWHC 1496 (KB) the English insurer defendant had served statements in English from two Bulgarian witnesses, both of whom, as it transpired, needed to give their oral evidence via an interpreter.  The statements had been prepared in England and then provided to the witnesses in translation but neither statement gave any details of how they had been taken and the translation was not (originally) certified.  The Bulgarian insurer of the other driver took the point in correspondence that the statements fell foul of the ratio in Correia, making no application itself to exclude.  A couple of days before trial the English insurer made an application denying any lack of compliance but in any event seeking relief under CPR 3.9.  Annabel Darlow KC, sitting as a deputy, accepted the Bulgarian insurer’s point that the statements were not compliant, that the various defects were of substance rather than form, before granting the English insurer relief from sanctions given the importance of their evidence to the court and the prejudice if they were not admitted.

It could well be the case that courts will be alive to parties trying to achieve a tactical advantage by waiting until close to trial to argue that a statement should be excluded, notwithstanding that a failure to comply with the rules would have been apparent for some time (certainly in Yordanov the Judge made a general ‘costs in the case’ order in relation to the evidential improprieties and efforts to regularise them).  Such a factor is likely to be relevant to the court’s discretion.  But it would also be fair to say that parties relying on statements from witnesses whose own language may not be English should be conscious of the rules and the importance of complying with them, rather than taking a chance as to whether an opponent notices any defect and is inclined to take the point.