WITNESS STATEMENTS WHEN THE WITNESS CANNOT READ ENGLISH: NOT GROUNDS FOR STRIKING OUT, RELIEF FROM SANCTIONS MAY NOT BE REQUIRED

April 26, 2019 · by · in Applications, Civil evidence, Relief from sanctions, Witness statements

In Waraich & Anor v Ansari Solicitors (A firm) [2019] EWHC 1038 (Comm) HHJ Pearce (sitting as a High Court Judge) considered the issues that arose when a point arose at the beginning of a trial in relation to signature on a witness statement when the witness could not read English.  The judge concluded that this was not grounds to strike out a claim, rather it went to matters relating to credibility. It is another case that highlights the importance of taking care when a witness does not have a good understanding of English.  It is also shows a proportionate response to the issue, in that the action was not struck out.  The issue went to credibility rather than the striking out of action.

“I indicated that I was not satisfied that relief from sanction was required, since the extent of the Claimants’ understanding of English was unclear and therefore I could not conclude whether the statements could properly be said to be in their own words so far as practicable and/or whether they could read the statements. I gave relief from sanction in so far as it is might have been required and I declined to strike out any statement of case”

THE CASE

The claimants brought a professional negligence action against the solicitors alleging negligence in failing to pursue a negligence claim against another firm of solicitors.

THE JUDGMENT IN RELATION TO SIGNATURE OF THE WITNESS STATEMENTS

    1. At the beginning of the trial, the Defendant raised an issue as to the statements of truth on the Claimants’ statements of case and witness statements. Each statement of case had been signed by both Claimants and each Claimant had signed their witness statements. The First Claimant’s first witness statement dated 12 March 2018 asserted, “My spoken English language is not as good as my written English and this is why I can sign documents in English, but I struggle with the spoken English. I have time to read the documents in English and therefore do not require an interpreter for reading.” In her first witness statement of the same date, the Second Claimant said, “I confirm that I cannot speak fluent English and need an interpreter for spoken English. I have time to read documents in English and do not require the assistance of an interpreter for written English. This is the reason why I can sign documents in English.”
    2. However, shortly before the trial, the Claimants served 14 statements from an interpreter, Mr Syed Haider Ali Shah, stating that he had translated into Urdu[2] each of the 7 statements that each Claimant had signed, stating in each case that the Claimant “confirmed that the contents are true and correct and she was made aware of the consequences of making false statements in court.”
    3. The statements from Mr Shah raised questions as to the compliance by the Claimants with Rules and Practice Directions:
a. Were either or both Claimants unable to read the documents (both statements of case and witness statements) that had been verified by a statement of truth, such that Paragraph 3A.1 of PD22 to the CPR applied?
b. Were the witness statements expressed in the witness’ own words in accordance with Paragraph 18.1 of PD32?
  1. In so far as the putative non-compliance related to the statements of case, this did not of itself render it ineffective, though gave rise to the possibility of it being struck out (see CPR22.2(1)); in so far as it related to witness statements, it gave rise to the possibility that the Claimants had not served witness statements in compliance with the rules and that CPR32.10 debarred them from relying on the evidence without relief from sanction.
  2. To deal with this issue, the Claimants sought an adjournment overnight on the first day of trial with a view to making an application for relief from sanction and made such an application, relying on two witness statements from their solicitor, Mr Khalid Mahmood[3], both dated 13 March 2019. The application sought relief from sanction for failing to comply with PD22. In his third statement, Mr Mahmood explains at paragraph 6 that he had translated the statements of case into Punjabi for the Claimants and explained the contents of the documents. He followed the same process with the witness statements and list of documents.
  3. As to the need for the statements from Mr Shah, Mr Mahmood stated that, “during the trial preparation, it transpired that the Claimants may not fully appreciate and comprehend the contents of the documents … in order to make sure that that Claimants fully appreciate all of the documents listed above, I requested Mr Syed Haider Ali Shah to translate their witness statements to both Claimants.” Mr Mahmood identified that Mr Shah is both a qualified interpreter and a practising solicitor (therefore able to sign a certificate in accordance with PD22).
  4. For reasons given at the time, I indicated that I was not satisfied that relief from sanction was required, since the extent of the Claimants’ understanding of English was unclear and therefore I could not conclude whether the statements could properly be said to be in their own words so far as practicable and/or whether they could read the statements. I gave relief from sanction in so far as it is might have been required and I declined to strike out any statement of case. However I expressed concern that there may be an underlying issue as to reliance on the statements that would be more apparent after the Claimants had given evidence.
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