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Preparing foreign language witness statements
How should we seek to comply with the rules relating to foreign language witness statements in litigation that are governed by the Civil Procedure Rules, including judicial review proceedings in the Administrative Court, and civil actions in the Kings Bench Division and County Courts?
The relevant rules and guidance relating to foreign language witness statements are listed below. The importance of these are noted in a number of cases since the rules were published.
- On the requirements for witness statements generally, the Civil Procedure Rules Part 32, in particular rules 32.4, 32.5, 32.8, 31.10, 32.14;
- Practice Direction 32 at [17.1-25.1] provides guidance on the requirements applying to the form and contents of witness statements; and
- Practice Direction 22 on statements of truth, in particular [3A]: “Inability of persons, other than by reason of language alone, to read or sign documents to be verified by a statement of truth”.
Civil Procedure Rule 32.8 states that witness statements must comply with the requirements of Practice Direction 32. [18.1] of Practice Direction 32 provides that:
“[t]he witness statement must, if practicable, be in the intended witness’s own words and must, in any event, be drafted in their own language.”
It appears that the “if practicable” part of this sentence applies to the statement being in the witness’s own words while there is no apparent qualification to the requirement for the statement to be drafted in the witness’s own language.
Witness statements must be accurate and address any factual matters that are in dispute between the parties on which evidence from the witness is required. Many witnesses immigration practitioners come across will need assistance from a lawyer to prepare their statements. Interpreters are most likely not legally qualified and the task of preparing the statement cannot, consistent with professional obligations, be delegated to them.
This means that where a witness needs to have their statement prepared in a foreign language, unless a lawyer is available who can draft the statement in the witness’s own language, it will not be possible to comply with the letter of [18.1] of Practice Direction 32. [25.1] of Practice Direction 32 provides that if a witness statement does not comply with Civil Procedure Rule 32 or Practice Direction 32 “in relation to its form, the court may refuse to admit it as evidence and may refuse to allow costs arising from its preparation”. However, [25.1] is discretionary. If a witness statement does not comply with the strict requirements of the rules, the court can still admit it as evidence.
If it is not possible to comply with the strict requirements of Practice Direction 32 [18.1], in order to ensure that the court does not exercise its discretion to the detriment of clients, the solicitor should explain in a witness statement verified by a statement of truth how the statement was taken and why it is not possible to comply with the letter of [18.1] of Practice Direction 32.
In non-urgent situations such as civil claims, the following is suggested best practice.
Instructions should be taken in the usual way with the assistance of an interpreter. A draft of the statement should be prepared in English, being careful to ensure that it accurately reflects what the client has said, in their own words.
Once the draft statement is ready, this should be translated. The client can then attend a read-back appointment with an interpreter, or if preferred they can read the translated statement themselves.
Once approved, the client should sign the translated statement. If attending a read-back appointment, the client should sign the statement of truth on the translation and the interpreter should sign a declaration with the following wording:
“I confirm that I have read this statement to [CLIENT] in [LANGUAGE].”
The Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal confirms the same process should be adhered to. If the client has read the translation themselves, the client should sign the statement of truth on the translation. The interpreter does not need to sign the declaration.
During the read-back or read-through process, if amendments need to be made these should be tracked in the English version, which should then be sent to the translator for the translation to be amended. The client should then sign the amended translation.
As soon as practicable, other parties to the litigation should be alerted to how the witness statement has been prepared and ask that they set out any objections at the earliest opportunity. In a judicial review, this will likely be when the claim is served. In civil claims, it may be worth seeking to agree with the defendant and the court at any case management hearing (usually the Costs and Case Management Conference) that this is how the evidence of the relevant witness will be dealt with.
In urgent cases, when there is not time to follow the best practice set out above, any other ways in which it has not been possible to comply with the requirements of Practice Direction 32 [18.1] will need to be explained in the solicitor’s witness statement. It may be that it is only possible to file an English language version initially, with the best practice approach outlined above to follow as soon as practicable. Or, in especially urgent cases, it may be that the best that can be done is to set out the client’s instructions in a witness statement, signed by the solicitor.
Practice Direction 22 [3A] addresses the practical issues arising where clients are unable to read. An “authorised person” (which include a solicitor) should sign the form of declaration in the annex to Practice Direction 22, which will need to be adapted to reflect the fact that the statement has been read back through an interpreter. The English version of the statement signed by the solicitor should be filed as the witness statement, with a certified translation in the foreign language. The client does not sign either version.
The above is my own views on suggested best practice. Clearly, it is not satisfactory if, as will be the case with many clients, if it is simply impossible to comply with the strict requirements of [18.1] of Practice Direction 32. The Civil Procedure Rules Committee should be invited to review Practice Direction 32 and consider amending it so that the suggested best practice set out here should be incorporated, rather than leaving the issue of whether a client’s evidence will be admitted to judicial discretion.