WITNESS STATEMENTS AND TRANSLATION: WHY YOU CAN’T RELY ON PD 22 IN RELATION TO WITNESS STATEMENTS

This is the third post on this subject in one day.  Someone responded to the first post on the need to for witness statements to be in the language of the witness by asserting that Practice Direction 22 could relied upon.  Their view was that a statement in a foreign language was not required. The difficulty with this view is that most judges appear to disagree with it.

THE JUDICIAL VIEW

In Re Phoneer [2002] 2 BCLC 241  HHJ Kaye QC (sitting as a Deputy Judge of the High Court) held:

“A witness statement must comply with the relevant Practice Direction: see Rule 32.8. The relevant Practice Direction to Part 32 of the Civil Procedure Rules requires that a witness statement must, if practicable, be in the witness’s own words: see paragraph 18.1. The obvious consequence is that, if the witness does not speak English, the witness statement will be in that person’s own language, which must then be translated and the translation filed and verified in accordance with paragraph 23.”

In Force India Formula One Team v 1 Malaysia Racing Team Sdn Bhd and others [2012] EWHC 616 (Ch), Arnold J.

“In my judgment the correct course would have been for the [foreign] witnesses … to make their statements in Italian, and for the statements then to have been translated in English”.

USEFUL DISCUSSIONS

There is a useful discussion of the rules and relevant case law by Justin Valentine in “Personal Injury Litigation and the Non-English Speaking Client”.

There is also a useful article by Clyde & Co Witness Statements In A Foreign Language  this includes a reference to two unreported cases.

“In Nikhoo v Sodal (unreported) (Watford County Court), HHJ Cryan noted on appeal that the judge sitting in the lower court had been erroneously referred to Practice Direction 22 when he ought to have been referred to Practice Direction 32. In Myftaraja v Pimbley (unreported) (Bolton County Court), Deputy District Judge Stone refused the claimant’s application to allow evidence from a witness because his witness statement had not been prepared in the correct format, i.e. in accordance with Practice Direction 32.”