WITNESS STATEMENTS IN FOREIGN LANGUAGES: THE APPROPRIATE PROCEDURE

If a witness cannot speak English and a witness statement is required what needs to be done? Some guidance can be found in the rules and in a recent case in the Family Division.

GUIDANCE IN PRACTICE DIRECTION 32

23.2

Where the court has directed that a witness statement in a foreign language is to be filed:

(1) the party wishing to rely on it must –

(a) have it translated, and

(b) file the foreign language witness statement with the court, and

(2) the translator must make and file with the court an affidavit verifying the translation and exhibiting both the translation and a copy of the foreign language witness statement.

GUIDANCE IN THE CIVIL CASES

The courts have considered the issue of the best language for a statement to be drafted in on several occasions. in  Force India Formula One Team v 1 Malaysia Racing Team Sdn Bhd and others [2012] EWHC 616 (Ch) Arnold J. observed:-

1. All of these witnesses signed witness statements in English. Many of their statements contained statements to the effect that the witness had some knowledge of English, that the witness had been interviewed by Italian-speaking lawyers who had drafted the statement in English based on his answers and that the witness considered that his knowledge of English was sufficient to allow him to give the statement in English, but might require the assistance of an interpreter to give evidence in court. A smaller number said that the statement had been translated into Italian for him (as I understand it, orally) before he signed it. In the event, all of these witnesses except Mr Crosetta, Mr Migeot and Mr Neira gave their evidence through interpreters. While I appreciate that many people can read English with greater proficiency than they can speak it, particularly in the context of cross-examination, it does not necessarily follow that it is appropriate for them to make witness statements in English, particularly in a highly technical case involving many points of detail such as this one. It was clear that at least one of the witnesses had not correctly understood part of his statement when he signed it, and I suspect that this problem may have been more widespread. In my judgment the correct course would have been for the witnesses other than Mr Crosetta, Mr Migeot and Mr Neira to make their statements in Italian, and for the statements then to have been translated in English.

GUIDANCE FROM THE FAMILY DIVISION

However the real point of this post is to look at comments that could bypass civil litigators since they come from the Family Division. This relates to the process of preparing the witness statements.  In NN -v- ZZ(1)GA(2) IZ(3)  [2013] EWHC 2261 (Fam) Peter Jackson J considered the question of witness statements in the virtually identically worded Practice Direction in the Family Procedure Rules. It is difficult to envisage different principles applying in civil proceedings.

60. At my invitation , counsel made submissions about the way in which evidence from witnesses who do not speak English should be prepared. In the light of those submissions, I record the following basic principles:

(1) An affidavit or statement by a non-English-speaking witness must be prepared in the witness’s own language before being translated into English. This is implicit from Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2 of which states that:

Where the affidavit/statement is in a foreign language –

(a) the party wishing to rely on it must –

(i) have it translated; and

(ii) must file the foreign language affidavit/statement with the court; and

(b) the translator must sign the translation to certify that it is accurate.

(2) There must be clarity about the process by which a statement has been created. In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness’s own language.

(3) If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.

(4) If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.

(5) The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.

(6) A litigant in person should where possible use a certified interpreter when preparing a witness statement.

(7) If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator’sjurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.

(8) Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.

(9) If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness’s own language and the English translation should be provided to them well in advance of the hearing.

(10) If a statement has been obtained and prepared abroad in compliance with the relevant country’s laws, a certified translation of that statement must be filed together with the original document.

1. In this case, these basic steps were not observed. As a result, some time was needlessly spent exploring the process by which the statements had been taken, and the court’s task in assessing the witnesses’ evidence was made more difficult, to their disadvantage and that of the party calling them.”