“CARE MUST BE TAKEN IN ASSESSING A WITNESS WHO IS REPLYING TO QUESTIONS ASKED THROUGH AN INTERPRETER”: SOME PROBLEMS EXEMPLIFIED

Some of the difficulties a court has when considering witness evidence through a translator are set out in the judgment of Deputy Judge Agnello QC in Jackson v Song [2021] EWHC 1636 (Ch).

“I have considered the evidence of what Ms Song is said to have said at that meeting somewhat unreliable. This is not because I consider she has changed her story, but because having heard her give evidence with the benefit of an interpreter, I am not convinced that she understood the questions being put to her at that meeting with the Trustee. Before me, it appeared that Ms Song struggled to understand some of the questions put to her even with the interpreter.“

THE CASE

The defendant’s former husband went bankrupt. His Trustee in Bankruptcy brought proceedings against the defendant alleging that certain payments to the defendant were transactions at an undervalue.  The defendant comes from Shanghai. She gave evidence through an interpreter.

THE JUDGMENT ON THE LANGUAGE ISSUES

The judge commented on the care that was needed when dealing with evidence where questions were asked through an interpreter.

1. 1. In my judgment, care must be taken in assessing a witness who is replying to questions asked through an interpreter. There was one clear example of the care which needs to be taken when Ms Wang, the interpreter, corrected herself an error in her translation of what Ms Song had said. Ms Wang had translated ‘a Chinese bank’ as ‘the Bank of China’. Mr Brown had started to challenge Ms Song in relation to inconsistencies on the basis that she had said her father opened an account at the Bank of China and later she said she didn’t know at which bank in China her father had opened the account in her name. Ms Wang then intervened and explained that the two phrases were the same in Mandarin Chinese and she believed she had translated a bank in China ( ‘ a Chinese Bank ‘) as ‘the Bank of China’ incorrectly. This is a prime example of the need to be extremely careful in assessing the replies to questions posed and in particular when lengthy questions are being asked. In many instances, Ms Song replied, ‘I don’t understand the question’ or ‘I don’t know’. Whilst Mr Brown asserted this was an example of her lying, in my judgment, that was not the case. Having considered carefully her evidence in the witness box, she appeared to be someone who did not genuinely understand some of the questions being posed. When asked more straightforward questions, she replied. Even then, some of her replies were somewhat unreliable because it would then become clear that she had not really understood some of the words being used. On questioning by Mr Brown relating to whether the sums being transferred to her from her family in China in reality belonged to her, she was, in my judgment, clear that the sums being transferred did not belong to her. Mr Brown’s questions were formulated on the basis that those sums did belong to her. So she replied that they did not. However it was apparent that she appeared a bit confused by the failure of Mr Brown to accept what she had said previously. In my judgment, her evidence was clear when she denied that the flat in China ( located in Shanghai) in which her parents lived, belonged to her. She was also clear that the sum transferred to her by her family, including the sum transferred under her own name did not belong to her. I accept her evidence in this respect. She was clear in her evidence. There was also no evidence produced by the Trustee in opposition to her evidence on this point with the exception of an assertion made by Mr Sheridan which he stated before me was ‘guesswork’. I also accept her evidence that the sums being sent were differing sums and in one instance sums were transferred from an account opened in her name by her father who had her Chinese identity card, because of the currency restrictions in China at that time. Although she was challenged on the currency restrictions and she was unable to say how much could be transferred in a year, the Trustee failed to adduce any evidence relating to the currency restrictions and their existence. I accept the evidence of Ms Song. There was no evidence submitted or relied upon the Trustee to contradict what Ms Song had asserted.

1. 1. Her evidence was somewhat confused and less reliable relating to what she told the Trustee at the meeting. Mr Brown sought to rely upon something which the Trustee asserted Ms Song had informed her at the meeting on 10 May 2016 relating to Mr Sheridan, namely that the separation agreement was in some way part of his plan or design to go bankrupt. When asked during cross examination whether at the time she agreed and entered into the separation agreement in 2012, she understood the word ‘bankrupt’ she replied no. Although the Trustee heavily relied on what Ms Song told her at the meeting, I have considered the evidence of what Ms Song is said to have said at that meeting somewhat unreliable. This is not because I consider she has changed her story, but because having heard her give evidence with the benefit of an interpreter, I am not convinced that she understood the questions being put to her at that meeting with the Trustee. Before me, it appeared that Ms Song struggled to understand some of the questions put to her even with the interpreter.

1. In reply to many questions, she gave, in my judgment, truthful replies. When the questions were complicated, I did feel sometimes she simply said ‘I don’t understand the question’ or ‘I don’t know’ rather than trying to understand or grapple with what was being asked. Her evidence of what she said or did not say at the meeting with the Trustee is to be treated with caution. Her evidence relating to what was happening at the time of her separation in relation to what she did or didn’t know about Mr Sheridan’s finances was given somewhat emotionally by her. I am not persuaded that Ms Song really knew much, if anything, about Mr Sheridan’s finances at that stage. So I have treated her evidence in this respect with a certain amount of caution. Having said that, I am not prepared to reject her evidence and do not do so on the issues which I have highlighted in this judgment. It was also clear when giving her evidence, Ms Song still found the break up of her marriage a painful subject. She was clearly distressed about having to deal with questions relating to the break up, what she knew, whether she was aware of mortgage arrears, her husband’s drinking, his affair and his mistress and other subjects along these lines. I accept her evidence that at the time of her separation and the signing of the separation agreement, she was unaware that it was possible for Mr Sheridan to go bankrupt. The Trustee relied heavily on her recollection and record of the meeting with Ms Song whereby the Trustee asserted that Ms Song stated or agreed that the intention of Mr Sheridan when he entered into the separation agreement was for him to go bankrupt. As I have already stated, I reject the evidence presented by the Trustee in this regard. In my judgment, the evidence presented in this regard by the Trustee is unreliable for the following reasons. Firstly, I accept the evidence of Ms Song that in 2012, she was unaware that Mr Sheridan could go bankrupt. She stated in replying to a question from me that she did not know in 2012 what ‘bankrupt’ meant in 2012. I believe her evidence in this respect. It also fits in with her understanding at the time of what was happening but also importantly it also fits in with her lack of knowledge relating to Mr Sheridan’s finances. Whilst married to Mr Sheridan and before their separation, she received sums paid into their joint account and she used those sums. She had no access to Mr Sheridan’s bank account and she stated she was not aware of the amount of mortgage arrears. Secondly, as I deal with below, I accept the evidence of Mr Sheridan who stated that as at the time that he and Ms Song separated and entered into the separation agreement, he had not formed any intention or had any plan to go bankrupt. However, even if Mr Sheridan did have in 2012 some design or plan to go bankrupt, this is, in my judgement, irrelevant to the case. The Trustee has not issued proceedings based upon section 423. Section 239 sets out an objective test and the desire or design of a debtor to go bankrupt is therefore irrelevant to what the Trustee needs to establish relating to consideration. It is the issue of consideration which forms a large part of this judgment.