INTERPRETERS, REMOTE HEARINGS AND A FAIR TRIAL: HIGH COURT APPEAL DECISION

In Gholizadeh v Sarfraz [2021] EWHC 2814 (Ch) Mr Justice Miles considered the issue of fairness when witnesses, giving evidence remotely, did not use a translator.   We have a situation where the defendant’s representatives stated, openly, prior to trial that translators were not needed, however it transpired, during the trial, that assistance was needed.

“I consider that the Judge should have allowed the witnesses who wanted to do so to have the assistance of an interpreter. There was an interpreter present with the witnesses. As a general principle, it is important that witnesses should be able to give evidence through an interpreter if English is not their first language. It is not a complete answer to the need for procedural fairness say that the witness is able to cope reasonably well in English.”

THE CASE

There was a three day trial in relation to a contractual dispute.  It was heard remotely.  The defendant served witness statements in English.  During the trial the defendant’s counsel asked that one witness give evidence through a translator. That was not allowed, primarily because of the technical difficulties of using a translator.  The trial judge found for the claimant.  The defendant appealed on the grounds that the judge’s failure to allow a translator to be used was a serious procedural error.  The judge found that the failure to allow a translator to be used did amount to a procedural error, but had no impact on the outcome of the trial.

PAUSING HERE

The appeal judgment does not look at the requirements for witness statements in the rules.

PD 32.18.1 states that a witness statement must be drafted in a witness’s “own language”

PD 32 19.1(8) also states that a witness statement should “be drafted in the witness’s own language”.

CPR 23 states

“23.2 Where a witness statement is in a foreign language—
(a) the party wishing to rely on it must—
(i) have it translated; and
(ii) file the foreign language witness statement with the court; and
(b) the translator must sign the original statement and must certify that the
translation is accurate.”

We appear to have a difficult situation in the current case where the statement was made in English, with any evidence of the use of an interpreter, in circumstances where the maker of the statement required an interpreter to be cross-examined on the statement.  It is difficult to see where this fits in with the rules.

THE FACTS IN THIS CASE

The need for an interpreter was not apparent prior to trial.

1. The witness statements of all the witnesses were made in English and did not record that they had been translated from any other language. Neither party made any application at the CMC on 23 January 2020 for the assistance of an interpreter. The trial date of 6 July 2020 was notified to the parties on 7 April 2020. On 16 June 2020, counsel for the defendant objected to the hearing being remote. He referred to the parties having English as their second language and pointed out the particular need for the court when assessing the demeanour of witnesses who did not speak English as their first language to be able to see them in person. In the same email, however, counsel stated that there were no translators required.

DURING THE TRIAL

The need for an interpreter became apparent during the trial.

1. 1. 1. Counsel for the claimant then suggested that he understood that there might be need for an interpreter for one of the defendant’s witnesses. An interpreter was available and, indeed, all of the defendant’s witnesses gave evidence from the same room, where the interpreter was also present. The Judge said that the use of an interpreter was not a process by which Skype for Business trials worked and it would not be possible to use an interpreter. He said it had not been possible to use interpreters on Skype for Business in the County Court’s Business and Property work for some time. He said there were two options. The relevant witness statement could be treated as hearsay evidence or the witness in question should give evidence as best he could and the Judge would form a view as to whether he was fairly answering questions and would deal with it in that way.

1. 1. Counsel for the defendant then said he would wish to take instructions but appears to have been minded to deal with the trial in the second way. The Judge then repeated his wish to get through all the evidence in one day if possible. The witnesses for the claimant were then examined and cross-examined. The defendant was called and cross-examined. Mr Ardekani was then called and cross-examination (his evidence covering about three pages of the transcript). There was no request for an interpreter in respect of his evidence.

1. The defendant then called Mr Khameni. Counsel for the defendant did not at that point make any further submissions about the need for an interpreter and or suggest that the matter needed to be adjourned. He introduced the witness and identified the witness statement. The witness then gave the formal parts of his evidence confirming the statement. The Judge then said to counsel for the claimant that he was only to cross-examine on essential matters and said that there was clearly a language barrier. There was then a very short cross-examination, covering about two pages of the transcript. The witness accepted that the original discussions in early November 2018 had been in English. The transcript shows that the witness was able to understand the questions he was being asked. There was no re-examination.

THE SUBMISSIONS ON THE APPEAL

1. 1. The defendant submits, in outline, as follows. The general principle is that any trial must be fair. This applies as much to remote trials as trials in person. This is reflected in the Protocol which says, in terms, that the court must act judicially. Allowances must be made to ensure that remote trials are fair. A witness whose first language is not English should generally be allowed the opportunity of being assisted by an interpreter. An interpreter was available on the day of the trial and the Judge should have allowed Mr Kamanahi to give his evidence through the interpreter. Though that may have been a bit more convoluted, given the remote platform, than simply requiring the witness to give his evidence in English, the Judge ought to have taken that course. The Judge appears to have been more concerned with getting through the process as quickly as possible. The Judge made decisions about the credibility of defendant’s evidence and Mr Khameni’s evidence was capable of corroborating the defendant’s version of events. His evidence was particularly material in relation to the events of 19 November 2018 and the meeting that he referred to that took place shortly afterwards with Ms White. The refusal of the Judge to allow the interpreter was a serious procedural injustice and was unjust. The court should therefore set aside the Judge’s order and remit the matter for a re-trial.

1. 1. The claimant submits in summary as follows. In the run up to the trial, the defendant accepted that no interpreters were required. The defendant’s position was that there should be an in-person trial because of the difficulties of the court in assessing non-verbal features of communication with witnesses who do not speak English as their first language. The court did not take that route and there was no appeal from that decision. Though counsel for the defendant had indicated earlier that a different witness might require the use of an interpreter, this was not raised in the case of Mr Khameni until the day of the trial. The Judge had a discretion whether to allow evidence to be given via an interpreter and he guided himself by the principle that a fair trial was needed. Counsel for the defendant did not suggest to the Judge that he was acting against principle when he had said that he would either treat the evidence as hearsay or take it in English and do the best he could. In any event, if there was a procedural irregularity, it was not serious and it did not lead to the decision of the lower court being unjust.

THE COURT’S REJECTION OF THE APPEAL

The appeal was rejected. The decision not to allow a witness to use an interpreter was unfair, however the judge could not see that it made any difference to the outcome.

Assessment and decision

1. 1. The appeal is brought under CPR 51.21(3)(b). The cases noted in the White Book, including Dunbar Assets PLC v Dorcas Holdings Ltd & Ors [2013] EWCA Civ 864, show that in order to fall within the rule, the appellant must show both a serious irregularity and that the decision was thereby rendered unjust. Each case clearly turns on its own facts and in assessing whether there was a procedural irregularity, the court will consider all the circumstances, including the positions taken by the parties at the hearing.

1. 1. It is clear from the terms of the Protocol that courts are required to conduct trials in accordance with the principles set out in the CPR and elsewhere. I was also referred to the Equal Treatment Bench Book which includes various passages concerning witnesses for whom English is not their first language. In broad terms, that guidance shows that a witness for whom English is not the first language should, where possible, be allowed the assistance of an interpreter.

1. 1. I consider that the position taken by the parties before the trial is of some relevance. Both parties accepted in their communications with the court in advance that an interpreter was not required for the trial and, partly for this reason, it appears the court decided to hear the case remotely. Counsel for the defendant did inform the court about a week before the hearing that Mr Ardekani might require an interpreter (but did not make that point at the trial). However, he did not mention Mr Khameni requiring an interpreter at that stage.

1. 1. At the trial itself it was counsel for the claimant who first raised the point about the possibility of the need for an interpreter for the defendant’s witness (no doubt having Mr Ardekani in mind). The Judge indicated, as I have said, that he did not allow interpreters on Skype for Business trials because of the instability of the platform and the need to complete the business sufficiently. He set out the two options which I have outlined earlier, namely either to treat the evidence is hearsay or to hear the witness as best he could. There was no application by counsel for the defendant at that stage to adjourn the trial, or any submission that the courses suggested by the Judge would be seriously unfair or unjust. Nor, when it came to tendering the evidence of Mr Khameni did counsel raise the issue again. He had said in the morning that he would take instructions but he did not, at that stage, apply either for an adjournment or submit to the court that the giving of evidence without an interpreter would constitute a serious irregularity or be unfair. When it came to the examination of Mr Khameni, the Judge recognised that there was a language barrier but allowed the cross-examination to carry on without the use of an interpreter.

1. 1. I consider that the Judge should have allowed the witnesses who wanted to do so to have the assistance of an interpreter. There was an interpreter present with the witnesses. As a general principle, it is important that witnesses should be able to give evidence through an interpreter if English is not their first language. It is not a complete answer to the need for procedural fairness say that the witness is able to cope reasonably well in English. It may be different if the witness is truly bilingual but it is not suggested that this was such a case. In this regard, I have taken into account the guidance I have already mentioned in the Equal Treatment Bench Book. I accept that proper allowance must be made for the technical difficulties of interpreters being involved in remote hearings and for the possibility of technological failure but, in the end, it is more important that trials are conducted fairly and that they are seen to be conducted fairly.

1. 1. I do also note that the trial was in the comparatively early days of the Covid-19 pandemic and was conducted over Skype for Business, which was not always a stable platform. However, experience shows that it is possible to use interpreters in remote hearings and I think the Judge erred in suggesting that in the County Court in Business and Property matters had a blanket policy of refusing to allow interpreters to assist. The interpreter was actually present with the witness and it should have been possible to arrange things so that the interpreter could participate while remaining socially distanced from the witness.

1. 1. In my judgment, therefore, the Judge was wrong not to allow the witness the benefit of an interpreter and this was a procedural irregularity.

1. 1. However, I am not persuaded on the facts of this case that the irregularity was a serious one so as to render the decision of the court below unjust. I say this for several reasons.

1. 1. First, there was no application by counsel for the defendant to adjourn the trial on the grounds that it would be unfair, nor did he make a specific application for the evidence of Mr Khameni to be given through the interpreter when he was called, or suggest to the Judge that fairness required that. It appears to me that the Judge may have had the impression that there was a preference for an interpreter but it was not indicated with any clarity that it was essential to the fairness of the trial process. This conclusion is reinforced by the fact that the witness statement had been written in English and there was no indication in it that it was a translation (as required by the rules where that takes place).

1. 1. Second, though the Judge identified that there was a language issue, Mr Khameni was in fact able, in the event, to give his evidence in English without any apparent difficulties. The cross-examination was short. The defendant’s counsel did not suggest either during the evidence or afterwards that the witness had been seriously hampered in giving his evidence. (As already explained the ability of the witness to give evidence is not a complete answer to the appellant’s complaint, but it is relevant to the question whether the irregularity was serious and has led to injustice.)

1. 1. Third, the evidence of Mr Khameni confirmed that of the defendant himself. Mr Khameni did not give independent evidence. Counsel for the claimant chose not to challenge much of Mr Khameni’s evidence or indeed that of the defendant himself. He left some of the main passages of the evidence of both of them entirely unchallenged. For example, he did not challenge the evidence of either the defendant or Mr Khameni about the meeting of 19 November 2018 or the subsequent meeting in Ms White’s offices, or about the defendant’s understanding of where things had got to with the claimant by that stage. The Judge did not base his decisions on a preference for the evidence of the claimant over that of the defendant or rest his decision on the relative credibility of their accounts of the various meetings. Rather, the Judge reached his conclusions on the basis of uncontested facts and their legal consequences.

1. 1. In relation to the three main pleaded defences, which I have already identified above, the Judge decided first that there had been no misrepresentation because on the crucial points, the defendant was aware from documents provided to him at the auctioneer’s office of the matters now complained of before he entered into a contract to purchase the Pub. As to the later events, the claimant did not cross-examine the defendant about the 19 November meeting or the subsequent meeting or agreement. Rather, the claimant argued that, in law, none of those events affected the original finder’s fee agreement and that it remained binding. The claimant succeeded on that basis. It follows from the decision of the claimant not to cross-examine the defendant on these points that the defendant’s own evidence must have been accepted.

1. 1. It also follows that the unchallenged evidence of Mr Khameni, which confirmed the evidence of the defendant himself, did not affect the conclusions of the Judge. More specifically, the Judge concluded that there had, indeed, been further discussions between the claimant and the defendant about an alternative agreement for the purchase of the Pub but that those discussions did not lead to any legally relevant variation or termination of the original agreement. The Judge, as I have said, did not base his findings or conclusions on an assessment of the respective credibility of the defendant and his witnesses and the claimant and his witnesses.

1. 1. Mr Stephens focused in his submissions on the appeal on a particular event, namely an agreement entered into on 21 November 2018 involving an SPV taking over the purchase of the property. He said that the agreement was capable of acting as a novation and that the Judge had failed to deal with this. He said that it was telling that the Judge had not addressed it and may have done so because he had not given proper weight to the evidence of Mr Khameni. However, that submission ignores the defendant’s own defence, which was recorded by the Judge in paragraph 23 of the judgment that the agreement on 21 November 2018 was not enforceable as a contract. Moreover, the defendant gave evidence that there had been no novation. Nothing that Mr Khameni may have said about any such agreement could have affected the outcome in favour of the defendant.

1. 1. For these various reasons, I have concluded that the evidence of Mr Khameni could not, on the Judge’s approach, have affected the outcome in any way. It added nothing of substance to the unchallenged evidence of the defendant himself concerning the key points. The Judge recorded where the evidence of the defendant had not been challenged and clearly understood that the claimant was not contesting that evidence.

1. 1. I do not therefore, after analysis, think there is any realistic basis for suggesting that had Mr Khameni been able to avail himself of the use of an interpreter it would have made any conceivable difference to the outcome of the trial. He was a minor witness. The points now said by Mr Stephens to be of significance were covered by the defendant in his evidence and were unchallenged and were therefore not in issue. The Judge recorded this.

1. 1. For these reasons, I also reject the submission of Mr Stephens that the Judge simply ignored Mr Khameni’s evidence. In his judgment, he recorded that the evidence of Mr Khameni and that of Mr Adakani supported the defendant’s version of events. This shows that he did take into account that evidence. The fact that Mr Khameni did not have the assistance of an interpreter had not influence on the outcome, given the way that the trial went and what was not contested. Counsel for the claimant made a decision to leave large amounts of the evidence unchallenged and took his stance on the legal consequences of that acceptance of the evidence. That approach was successful. I therefore come to the conclusion that the decision was not rendered unjust because of a serious procedural irregularity.

1. 1. Mr Stephens sought to argue that the Judge also went wrong by curtailing the cross-examination of the witnesses and insisted that the case should be heard as quickly as possible because of the instability of the Skype for Business platform. He said that the parties had come to court ready for a three-day trial and that it was ultimately completed in half that time. This point is not within the grounds of appeal but, in any event, there is no indication that counsel who appeared at trial, both experienced barristers, were hampered in conducting the necessary examination of witnesses or making submissions. They did not, as far as I am aware, seek at any time to suggest to the Judge that further time was needed than was allowed.

1. 1. There was also a complaint that the Judge indicated at the outset that he did not think that any issues arose and that this showed he already had a predisposition against the defendant. That was, to my mind, based on a simple misreading of the transcript. The Judge was, as I read the relevant passage, saying that he would conduct the case on the pleadings and that there was no need to use the list of issues which the parties had agreed. That was appropriate and within his case management powers in a case where he considered the issues were sufficiently clearly spelt out in the pleadings.

1. 1. I therefore reject these wider challenges, both because they are not included within the grounds of appeal and on their merits.

1. For all these reasons the appeal is dismissed.