WITNESS STATEMENTS AND LANGUAGE DIFFICULTIES: JUDGE EXAMINES THE “MINEFIELD” FOR THE LITIGANT

In Bahia v Sidhu & Anor [2022] EWHC 875 (Ch) Mrs Justice Joanna Smith considered the problems that arose when a witness provided a statement in English but was not totally proficient in that language.  The decision to provide the statement in English was found to be the correct one.  There are potential difficulties with the rules.  Also some of the principles set out in the Equal Treatment Bench book was employed by the Claimant’s advocate, with some degree of success.

 

“I accept that in the particular circumstances of this case there has been no serious breach of the relevant practice directions. Mr Bahia’s solicitors were faced with a difficult decision over the language to use in the preparation of his statements and, on balance, their decision to prepare them in English is not open to criticism. Mr Bahia’s statements clearly set out how they were prepared and, notwithstanding Mr Clarke’s suggestions to the contrary, there is no evidence that any pressure was put on Mr Bahia to say anything in particular about his evidence and no evidence that he was “led” during the preparation of his statements. I am inclined to agree with Mr Temmink that the relevant Practice Directions could perhaps be rather clearer as to the approach to be adopted in a situation of this sort.”

THE CASE

The judge was giving judgment in an issue in relation to partnership assets. One of the witnesses, Mr Bahia, provided two witness statements in English.  Issues arose at trial as to whether this witness could properly give evidence in English and whether he understood the statements. The judge found that, on the facts of this case, the statements in English were appropriate.  The statements were “over-lawyered” to some degree but the evidence of the witness still carried weight. Indeed the evidence of that witness was preferred.

THE JUDGMENT ON WITNESS EVIDENCE

Mr Bahia
    1. Mr Bahia was the first to give his oral evidence. He was born in India, but has lived in the UK for over 50 years. As at the date of the trial, Mr Bahia was 72 years old. His son, Mr Hardeep Bahia, described his father as “not particularly sophisticated in relation to financial and accounting matters” and I have no doubt that this assessment is correct.
    1. Mr Bahia relied upon two witness statements, dated 2 July 2020 and 17 December 2021. Each statement ran through the Inquiries in considerable detail over the course of 164 and 210 paragraphs respectively. Paragraphs 2 and 3 of Mr Bahia’s second statement said this:
“2. I have had discussions with my solicitors, Teacher Stern LLP, during meetings and by telephone on a number of occasions throughout 2020 and 2021. During the discussions with my solicitors, they made notes of my evidence and showed documents to me that have been provided in this case. This witness statement has been prepared by my solicitors, I have read it and understand its contents, which I confirm are true to the best of my knowledge and belief.
3. English is not my first language, but I have an understanding of it. My usual way communicating is by speaking a mixture of Punjabi and English. The meaning of certain words and phrases used in the case have been explained to me by my solicitors. The discussions I have had with my solicitors for the preparation of this witness statement have mostly been in English.
    1. Although it came to light during the course of his evidence that a Punjabi translation of Mr Bahia’s second statement had been prepared after the date on which he had signed his English statement, it had never been signed or lodged with the court. It was Mr Bahia’s evidence that the Punjabi statement contained words which were out of date and which he did not understand (“[t]he wording they have used in the statement, that is hard for me to understand”) and that a comparison between the Punjabi and the English versions of his statements had left him “stuck” on the difficult words.
    1. When it came to his oral evidence, Mr Bahia was plainly hesitant about speaking in and understanding the English language, confirming on one occasion during his evidence that he had left correspondence to Mr Sidhu because “my English is not very good”. He appeared to understand and speak simple English, but whenever he got stuck with an English answer, he switched to Punjabi. He required an interpreter for the entirety of his evidence, even requesting that paragraphs to which he was taken in his second statement should be translated before he was asked a question about them. Upon being questioned about his grasp of English, Mr Bahia accepted that there were “many” words in his English witness statement which he did not understand. Indeed, when Mr Bahia was asked, during the course of his evidence, to go away and spend time reminding himself of the content of his statement, without discussing it with others, he admitted that it had been necessary for him to seek assistance as to the translation (of “some of the words”) from his son.
    1. This state of affairs led to submissions from Mr Clarke in closing to the effect that Mr Bahia’s statements were in breach of CPR PD32 and CPR PD57AC, on the grounds that (i) they were not in his own words (CPR PD32 §18.1); (ii) they had not been drafted in his own language (i.e. in a language in which he was sufficiently fluent to give oral evidence, including under cross examination see CPR PD32 §18.1, CPR PD57AC §3.3 and the Chancery Guide at §19.13); and (iii) the statement of truth was not in his own language (CPR PD32 §2.4). In addition, Mr Clarke pointed out that, contrary to the Statement of Best Practice at §3.7 contained in the Appendix to CPR PD57AC, Mr Bahia’s statements did not state in his own words how well he recalled key disputed matters of fact.
    1. In the circumstances, Mr Clarke submitted that the court should approach Mr Bahia’s statements “with a considerable degree of caution” on the grounds that the breaches identified above are serious and that they “affect the weight which the court should give to that evidence because they concern the extent to which the court can be sure that the contents of the witness statement truthfully reflect the evidence of non-English speaking witnesses” (see Diamond v Secretary of State for the Home Department [2020] EWHC 3313 (Admin) per Calver J at [49]). Mr Clarke acknowledges that recent authorities on the exercise of the court’s case management powers in relation to deficient witness statements identified in advance of trial are of little assistance where the deficiencies have come to light only during cross examination and he does not suggest that an order striking out Mr Bahia’s statements would be appropriate. However, it is his submission that in the absence of documentary or other satisfactory corroboration, the court should afford Mr Bahia’s statements no weight, certainly in relation to disputed issues.
    1. I am bound to say that having seen Mr Bahia being cross examined over the course of three days in the witness box, I was doubtful as to whether his statements should have been prepared in English. Following some responses he gave to questions about a reconciliation document that had been directly referred to in his second statement but which he did not appear to recognise in cross-examination, I was particularly concerned that a statement prepared in English was incapable of being properly understood by Mr Bahia, or of accurately reflecting the evidence that he could actually give. I was also concerned that his statements had not been prepared in his own words. However, Mr Temmink’s response to these concerns and to Mr Clarke’s submissions is robust.
    1. He submits that the recent proliferation of rules and guidance in relation to the taking of witness statements by solicitors has become “a legal minefield” and a particularly hazardous one in this case where Mr Bahia speaks in a mixture of two languages. He says that the rules do not adequately cater for such a situation.
    1. He refers, in particular, to the following guidance in the Equal Treatment Bench Book:
i) “…it is important to bear in mind that an individual’s communication style will be a result of both cultural patterns and the structure of their mother tongue” (§87);
ii) “…it can be easy to over-estimate an individual’s ability to cope with language as used in court and under the stress of proceedings. The fact that an individual can communicate perfectly well in their work context may not be a reliable guide to how well he or she can communicate in court. Equally, a person may appear entirely fluent at the start of a hearing, but the level of their fluency may reduce when overtaken by emotions or stress, as may happen under cross examination” (§99);
iii) “When giving evidence, people for whom English is not a first language may not always fully understand what they are being asked. It is one thing to know the basics of a language and to be able to communicate when shopping or working. It is quite another matter having to appear in court, understand questions, and give evidence…Judges should therefore be alert to different language needs, and should not assume, simply because a witness has lived in the UK for many years, that he or she does not require an interpreter” (§109);
iv) “some people also ‘code switch’ as they talk, switching unconsciously between languages as they search for the most natural way to express themselves for the point they are making…” (§113);
v) “…Languages do not operate in ways which identically match each other. They can differ in grammatical structure, vocabulary, the meaning of certain abstract concepts, and in how much is directly spoken as opposed to understood between the lines…” (§117);
vi) “Many words in English do not have exact single term equivalents in many other languages…”(§133).
    1. Against this background, Mr Temmink points to CPR PD32 §18.1 which provides that “the witness statement must, if practicable, be in the intended witness’s own words” (emphasis added) and he contends that in this case, where Mr Bahia’s usual way of communicating is by speaking in a mixture of Punjabi and English and where the meaning of certain English words needs to be explained to him, it was not practicable to do anything other than prepare his statements in English in words which were not necessarily his own. He says that the fact that certain words and phrases had to be explained to Mr Bahia chimes precisely with the guidance in the Bench Book to which I have referred and he invites me to take judicial notice of the fact that Punjabi was first developed in the 12th Century and is a ‘basic’ language with no exact words for various of the English concepts which arise in this case (such as ‘reconciliation’ and ‘property revenue accounts’), hence Mr Bahia’s difficulties with the Punjabi version of his statement.
    1. Referring to the cross examination of Mr Bahia on the reconciliation document referred to in his statement (mentioned above), Mr Temmink points out that there had been no introduction to the document whatsoever, that it had not been put in context and that Mr Bahia had not been given an opportunity to refresh his memory as to what he had said about the document. He submits that, in the circumstances, it would be unfair to expect an elderly witness operating under the pressure of cross examination immediately to recognise one of many documents he will have been shown in the course of the proceedings. It would certainly not be appropriate to conclude from that incident that Mr Bahia did not understand what was in his witness statement.
    1. Having regard to the submissions from both parties, I accept that in the particular circumstances of this case there has been no serious breach of the relevant practice directions. Mr Bahia’s solicitors were faced with a difficult decision over the language to use in the preparation of his statements and, on balance, their decision to prepare them in English is not open to criticism. Mr Bahia’s statements clearly set out how they were prepared and, notwithstanding Mr Clarke’s suggestions to the contrary, there is no evidence that any pressure was put on Mr Bahia to say anything in particular about his evidence and no evidence that he was “led” during the preparation of his statements. I am inclined to agree with Mr Temmink that the relevant Practice Directions could perhaps be rather clearer as to the approach to be adopted in a situation of this sort.
    1. Having said that, I have little doubt that the statements were overly “lawyered” and that Mr Bahia’s second statement (prepared after CPR PD57AC came into effect, but clearly adopting much of what had been included in the first statement, prepared pre-CPR PD57AC) does not make clear the full extent of Mr Bahia’s recall of key events. However, these features alone do not lead me to determine that it would be appropriate or fair at this stage in the proceedings to afford the statements no weight or probative value. Mr Bahia was asked about his recall in cross examination and he frankly conceded that his memory was “not that sharp”, that he tended to “forget things after a week” and that “any time I can be forgetful”. Mr Bahia’s evidence was also tested directly by reference to his over-engineered statements and I am in a position to form a view on that evidence.
    1. Indeed, Mr Temmink accepts that there were occasions during his cross examination when Mr Bahia gave oral evidence which was not as detailed as the evidence in his statements and also occasions when he gave evidence of extra detail not contained in his statements (to which I shall return in a moment), but he says the court must deal with this in the usual way, having regard to the fact that memory is fluid (see the Statement of Best Practice) and to the guidance given in the Bench Book to which I have already referred. I accept this submission, although I observe that inconsistencies in Mr Bahia’s evidence are obviously capable of going to his credibility as a witness, a topic to which I shall now turn.
    1. Having regard to his oral evidence, I formed the view that Mr Bahia was a straightforward witness who was doing his best over the course of his lengthy cross examination to answer the questions he was asked, whether in English or in Punjabi or in a mixture of the two. He plainly did not always understand the questions that he was being asked and he became confused on more than one occasion, leading me to express concern about his overall understanding of English and prompting the submissions to which I have already referred. However, his explanation of the way in which his statements had been prepared was entirely consistent with the explanation given in those statements and, having regard in particular to the provisions of the Bench Book, I am unsurprised that Mr Bahia found the experience difficult. Importantly, in my judgment, he did not seek at any stage to advocate his case or to argue with Mr Clarke.
    1. In closing, Mr Clarke identified what he described as “glaring examples” of inconsistencies between Mr Bahia’s statements and his oral evidence. I am not at all convinced that he was right about all of these (many of which Mr Temmink was able to address in his closing submissions), but there is no doubt that there were inconsistencies. Thus:
i) Mr Bahia claimed never to have seen and to not agree with the entries in the reconciliation document to which I have already referred which he had said in his statement had been shown to him and prepared by Hardeep. When questioned about this he said he must have missed the document in the bundle of documents he had been sent with his statement.
ii) Mr Bahia was asked about the amount of money that he had contributed to the purchase of 8 King Street in 1972. He gave precise evidence (for the first time) as to the individual members of his family from whom he had borrowed money and the specific sums that he had borrowed from them. When shown his witness statement in which he said that he had no clear recollection of the amounts provided by anyone, he was unable to explain himself.
iii) Mr Bahia’s evidence at para 179 of his statement was that in 2007 he had been provided with some rough calculations by Mr and Mrs Sidhu as to money he owed to the Partnership. His evidence in the witness box was that nothing had been given to him on paper and that, instead, he had given handwritten figures to Mr Sidhu, which Mr Sidhu could not read and so Hardeep Bahia had produced a spreadsheet which was handed over. When asked about his statement, he described it as a “mistake”.
    1. However, having regard to the totality of Mr Bahia’s evidence given over the course of some 3 days in the witness box, on balance I do not consider that these inconsistencies indicate that Mr Bahia was not doing his best to assist the court, much less that he was a dishonest or wholly unreliable witness. He plainly had difficulty understanding detailed and complex questions put to him in cross examination and his memory of the documents to which he had been directed for the purposes of his statement was poor, but that is not indicative of dishonesty. Indeed on various topics (for example payments made in respect of tax), Mr Bahia made appropriate and reasonable concessions. Furthermore, I reject the suggestion made by Mr Clarke in closing that Mr Bahia’s answers were rehearsed – that was not my impression of them and the example on which Mr Clarke relied did not appear to me to make good his point.
  1. Ultimately, I consider Mr Bahia to have been an honest witness, who was from time to time hampered by language difficulties and poor recollection. I accept that this means that I must treat his evidence with caution, particularly where it descended into detail not contained in his witness statements. However, I also observe that (for reasons which will become clear) where his evidence conflicts with that of the Sidhus’ and absent any contemporaneous documents to resolve the matter one way or another, I prefer his evidence.