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New Civil Procedure Rules on translating witness statements catch claimant out


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In April 2020, the Civil Procedure Rules were updated with significant changes made to the rules about witness statements filed by non-English speakers. The new rules are of obvious interest to immigration lawyers and Diamond v Secretary of State for the Home Department [2020] EWHC 3313 (Admin) is an early example of the consequences of non-compliance.

The new rules are contained in CPR Practice Directions 22 and 32. They impose several requirements on witness statements filed by non-English speakers:

  • The witness statement must be drafted in the witness’s own language rather than English (PD 32 Para 19.1(8))
  • The statement of truth must be in the witness’s own language (PD 22 Para 2.4)
  • The party relying on the witness statement must file a certified English translation of the statement (PD 32 Para 23.2)

Practice Direction 32 Para 18.1 also states that witness statements should be in the witness’s own intended words. The rules are intended to remove the risk of witnesses signing witness statements that do not reflect what they will actually say and without understanding the significance of the statement of truth.

The Diamond case was a challenge to the Home Office’s decision to revoke and refuse to renew the claimant’s British passport. Mr Diamond’s entitlement to the passport depended on whether he was born before or after his father acquired British nationality. On an application for judicial review, the court reviews the claimant’s nationality as a matter of “precedent fact”; in other words, it assesses the evidence like it would in a civil claim. Hence the relevance of the Civil Procedure Rules.

Mr Diamond’s case was ultimately undermined by the fact that his mother had apparently sent a letter to the Home Office as part of an earlier application for entry clearance which contradicted his account, but Mr Justice Calver also applied the new rules on witness statements. Two statements had been provided from witnesses who did not speak English. The statements were in English and the statements of truth were also in English. The statements had been read to the witnesses’ in their own language, but the judge was not impressed:

I consider the failings under PD 32 and 22 to be significant failings in this case which significantly affect the weight that I should give to these written statements which have not been tested in cross-examination. The breaches of the CPR and its Practice Directions referred to above are not mere technical breaches. They affect the weight which the court should give to that evidence because they concern the extent to which the court can be sure that the contents of the witness statement truthfully reflect the evidence of non-English speaking witnesses.

A clear illustration of the importance of complying with the new rules.

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Alex Schymyck

Alex is a barrister at Garden Court Chambers