WITNESS STATEMENTS WHEN THE WITNESS CANNOT SPEAK ENGLISH: “IT IS DOUBTFUL THAT HE IN FACT SIGNED THE STATEMENT”

In Borra v Commissioners for Her Majesty’s Revenue and Customs & Anor [2022] EWHC 1195 (Ch) ICC Judge Mullen considered the requirements of the Practice Direction in relation to a witness giving evidence in a foreign language.  None of the requirements of the Practice Direction had been complied with.  The judge doubted whether the witness giving evidence was the signatory of the witness statement, or was even who he said he was.

“The difference between the statement and his oral evidence is so striking that the former cannot be his. It is doubtful that he in fact signed the statement.”

THE CASE

The judge was hearing an application in relation to bankruptcy proceedings. One of the witnesses was giving evidence remotely whilst abroad.

THE JUDGE’S COMMENTS ON THE WITNESS STATEMENTS

The judge was sceptical about the evidence of the witness in question.

    1. Mr Gupta gave evidence in the Telugu language via a translator, whose attendance had been arranged by Mr Borra. The translator tended to enter into exchanges with Mr Gupta, rather than simply translating the words he said. Some of this appears to have been a genuine attempt to obtain a “yes or no” answer from Mr Gupta, who seemed to struggle with focussing on and answering the questions put to him but there were a couple of occasions when Mr Borra, though his counsel, objected that the witness’s answers were not being translated accurately. It was apparent that there were occasions when the translator glossed Mr Gupta’s answers, though he was repeatedly reminded, both by counsel and by me that he should do no more than translate the witness’s own words.
    1. Those matters were relatively inconsequential in context however. There were far more fundamental problems with Mr Gupta’s evidence. Practice Direction 32 to the Civil Procedure Rules provides that a witness statement must be drafted in the witness’s own words, in the witness’s own language and it must describe how it has been prepared, whether face-to face or over the telephone for example (paragraph 18.1). The statement of truth must also be in the witness’s own language (paragraph 20.1). The foreign language witness statement must then be translated into English and both the foreign language statement and translation must be filed at court. The translator must certify the accuracy of the translation and sign the original statement (paragraph 23.2).
    1. Mr Gupta said that he could not read English. The only English word that he said he could write was his name. His statements had been prepared by a friend called Srinivas Murthy, whom he had told what to say. Mr Murthy had told him how to send the documents to the court. Mr Murthy was from his village but now lived in Bangalore but Mr Gupta did not know his address or his email address. This was the first time that any of this was mentioned and none of the requirements of the practice direction were followed.
    1. Further, Mr Gupta’s witness statements were plainly not written by him and the matters set out in them in relation to the operation of the loan scheme, the remuneration taxed and the calculation of the tax due set out in them bear no relation to the job or means of payment he described in his oral evidence. He is a man who accepts he is of very limited education. He said that Mr Murthy sent emails for him as his education was “very low”, which he explained meant he had failed the equivalent of GCSEs. He told me that he works as a handy man and in supplies and that he was in the UK doing “odd jobs” between 2009 and 2011. He said that he had heard the name Raingold when he worked in the UK but that he has never worked as a systems developer, which is the occupation of “Ravikanth Gupta” set out in the Raingold loan scheme documentation. He was an office boy, as he put it, doing such things as changing water bottles. He was earning £400 a month and was paid, at least mostly, in cash. He lived in Barking at the time in a small room. This is a million miles from what is said in the statement in his name about “his” employment. He said
“5 In relation to my employment, I had worked as a consultant during the relevant dates between 2009 and 2010 for a company called Raingold UK. The contract of employment for the relevant period is shown to me at ‘RG3’. At that time, the payroll company was using the ‘contractor loan remuneration scheme’ for paying salary and accounting for any allowances.
6 My understanding was that the ‘contractor loan renumerations scheme’ was made taxable in 2013 or some point after that date. I do not know the ins and outs of the change to the law, but I believe that unless it had retrospective effect to cover my two years of working in the UK, such changes would not be relevant to residents outside of the UK. This had happened after I returned to India and outside of the period that appears on the tax assessment.
7 During the relevant period (2009-2010), my gross earnings were £42,000, so I cannot see how the assessment for 2009-2010 can possible be £49,726.00 as this sum is over and above the amount that I had earned in total for the same period.
8. During the period 2010-2011 my gross earnings were £41,500 and it would be incorrect to have a tax calculation of £27,225 as there would be no allowances being made been given. There is now produced and shown to me at ‘RG4’ the evidence of my earnings for the relevant periods.”
These are not the words of Mr Gupta, at least not the Mr Gupta that I saw give evidence by video. He is unsophisticated in matters such as this. He was unable to comment on the tax due. In contrast to the considered account of earnings and tax due given in his statements, he said in his oral evidence that he was told to pay tax and agreed to pay it. When asked whether he agreed that he owed tax at the level claimed he replied, “You tell me”. His evidence was confused, halting and unfocused. I cannot accept that he would have been able to dictate the words in his statements in Telugu to Mr Murthy. The difference between the statement and his oral evidence is so striking that the former cannot be his. It is doubtful that he in fact signed the statement. He was asked to sign his name there and then and hold it up to the camera. It did not, superficially at least, look much like the signature on the documents although I bear in mind that it was not very easy to see it clearly on screen. Mr Gupta said that it was a long time since he last wrote it.
  1. His evidence became increasingly confused but in my judgment there were moments when reality might be glimpsed. At one point in connection with the application to use the Monomarks Address his answer, as translated, was that his friend had made the application and “whatever his friend has told him, he has done it” and “From the beginning they have told him that they can use this address”. When probed on whom he meant by “they” he said it was a lawyer called Mark Wilson from the consultants for whom he had worked. Mr Wilson’s name has nowhere been mentioned previously. There seem to be a number of figures who have been behind Mr Gupta’s involvement in the case. Besides the previously unmentioned Mr Murthy and Mr Wilson. Mr Gupta also told me that he became aware of the bankruptcy order when he came to the UK in 2019 and a man at his previous place of work told him there was a case against him. No details were given of who this man was or why he knew that there was a case against Mr Gupta. He was told he had to pay tax when he evidently had no clue how it might have arisen. The strong impression is that there are people in the background who have told Mr Gupta what he must do and what he must say. Having heard from Mr Gupta it is clear that he is not the bankrupt. He has never worked as a software engineer and did not participate in a disguised remuneration scheme. He has allowed himself to be used as a front for another. I do not accept his evidence.