McCaughie: Helpful statement from rule committee
By Eden McCaughie, associate solicitor at Legal Futures Associate Express Solicitors
According to a report in the Migration Observatory, the number of foreign workers in the UK has steadily increased since 2004, and in 2021 made up an estimated 18% of the employed population (5.9m).
With such a diverse workforce, the aim of the amendments to PD 32 was to remove uncertainty as to the requirements for CPR compliant foreign language witness statements, and to provide further guidance on this matter, so that we are all ‘singing from the same hymn sheet’, so to speak.
Some of the amendments made within PD32 are as follows:
- 18.1 The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language.
- 23.2 Where a witness statement is in a foreign language—
(a) the party wishing to rely on it must—
(i) have it translated; and
(ii) file the foreign language witness statement with the court; and
(b) the translator must sign the original statement and must certify that the translation is accurate.
- 17.2 At the top right hand corner of the first page the date of translation should be clearly written.
Although the intention of the amendments was to remove any uncertainty – and to some extent they have – complexities begin to arise if we delve a little deeper and question whether these rules apply to not only those who cannot speak English, but to everyone whose first language is not English, even if they have a reasonable command of it.
Arguably, these cases are more common, and in a way more troublesome, because if a witness doesn’t speak English at all, then it is already clear that the whole of the statement must be translated.
This is the situation that was considered within the case of Muhammad v Liverpool Victoria Insurance Company Limited (unreported, Manchester County Court, HHJ Evans, 1 April 2022).
Her Honour Judge Evans considered PD 22 and 32 when making her decision and held the claimant’s witness statement to be inadmissible because, although the claimant spoke reasonable English, she took the view that the statement put forward was not in the claimant’s own language, Urdu.
Briefly, the key elements of the ruling were:
- The judge was preoccupied by what she saw as a regular failure of solicitors on both sides (but predominantly the claimant’s) to comply with PD 32, which provides for statements to be given in the witness’s own language.
- Unless a witness gave evidence in their own language, they would not have access to all of the vocabulary they would otherwise have and the evidence would lose value, because it was impossible to express nuance in one’s own language.
- It was in fact safeguarding the interests of witnesses to make sure they gave evidence in their own language. The judge commented that, even for someone who spoke good English day to day, that would never be the same as expressing oneself in one’s own language.
- The only way of enforcing compliance with PD 32 was to impose a strict sanction. Therefore, she went on to exclude the witness’s evidence altogether, dismissed the claim and awarded costs against the claimant. She then and made a ‘show cause’ order against his solicitors as to why they should not pay the costs of the action.
Although this is a first-instance decision, it is persuasive, and it is important for claimant solicitors to consider how to tackle this decision, to avoid falling foul of the issues it raises.
A good starting point is to consider PD 57. Strictly speaking, this applies to the Business and Property Courts, but there is a good argument to be had that it would be appropriate to apply the same rule in all civil courts.
PD 57 states that a witness’s own language includes any language in which they are “sufficiently fluent”. This is helpful to fall back on when arguing that it may be appropriate for a witness to give evidence in English.
This is echoed in section 10.61 of the King’s Bench Guide, where it is stated that a trial witness statement must comply with paragraphs 18.1 and 18.2 of PD 32 and 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 next point of call should be the exchange of correspondence between the Association of Consumer Support Organisations (ACSO) and the Civil Procedure Rule Committee in October 2022. Following the decision in Muhammad, ASCO sought clarification on the rules on witness statements for non-native English speakers and PD 22 and 32.
The committee responded by saying that “the purpose of those amendments were intended to allow a witness to use a language in which they are fluent, even if that is not their mother tongue”.
Although the decision in Muhammad was very unhelpful to claimants and their solicitors, Chris Middleton from Oriel Chambers, who represented the defendant in the matter, advises defendants (but this could also helpfully be applied to claimants) that “a judge may not be sympathetic to the overtly tactical behaviour of a party which waits until trial before raising issues about the linguistic competence of another party’s witness, if it is felt that the issue could and should have been raised before…
“A party who suspects that linguistic issues arise with an opponent’s witness may be best advised to raise these at the appropriate stage in proceedings, in particular after exchange of witness statements, rather than placing all their hopes on a successful ambush at trial.”
It is important not to get ambushed if you disclose a statement that makes it obvious that the witness was not born and raised in the UK and there is a risk that the defendant will seek to rely upon the decision of Muhammad. Instead at an appropriate stage (probably after witness exchange), it is important to ask the defendant outright what their position on this is.
The above considerations came to fruition more recently in the case of Afzal v UK Insurance Ltd [2023] EWHC 1730 (KB), where the King’s Bench Division overturned a trial judge’s decision that the claimant was in breach of PD 32, because his evidence was not in his own language, given that it was in English, rather than Urdu.
The High Court specifically referred to sections from the Business and Property Guide, highlighting the use of the words “sufficiently fluent to give oral evidence”, rather than a witness being limited to their native language.
Furthermore, the importance of access to justice played a part in the decision, and the consequences that could arise if a claimant were required by law to provide a witness statement in their first language, notwithstanding their sufficiency in English.
In conclusion, the above are practical arguments that could be deployed if you are relying on the witness’s good sense of the English language when serving a witness statement that is in English.
