THE VEXED QUESTION OF WITNESS STATEMENTS WHEN THE MAKER CANNOT SPEAK ENGLISH: LEADS TO MAJOR PROBLEMS AND A WASTED COSTS ORDER

We are going to be looking twice at the decision of Mr Justice Martin Spencer in Rainer Hughes Solicitors v Liverpool Victoria Insurance Company Ltd & Ors (Rev1) [2024] EWHC 585 (KB). The next post will look at procedure in relation to wasted costs. This post looks at the issues that arose in relation to translation (or non-translation) of the claimant’s witness evidence. The following post will look at the wasted costs issues that arose.

“… counsel told me at the start of the hearing that Mrs Karadag was unable to read properly her witness statement or the pleadings, which were in English, as she was only proficient in Turkish. Mrs Karadag had attended court with a Turkish interpreter. It proved impossible for the statement and the pleadings to be translated in Turkish that day,”

THE CASE

The claimant brought an action for damages for personal injury.  Although liability was initially admitted the defendant was allowed to resile from that admission and to plead fraud and bring a counterclaim.  The claimant made a witness statement in Turkish, which was translated.

THE WITNESS STATEMENT – IN ENGLISH

The claimant then served a second witness statement.  This statement was written in English and not translated.  This second statement attempted to explain matters that had been asserted in the first statement, in particular in relation to impecuniosity.  A Turkish translation of the second statement was never produced.

 

    1. . On 20 November 2019, the Second Respondent signed a witness statement in Turkish, with an English translation as attested to by Mr Zafer Ceri, a qualified interpreter fluent in English and Turkish, dated 4 December 2019. This statement was made on the basis that liability was not in dispute and gave evidence in relation to the Second Respondent’s claim for damages.

 

    1. A trial was fixed for 16 April 2020 but this was vacated because of the Covid-19 pandemic. On 1 April 2020 the First Respondent applied to the court for permission to resile from the admission of liability and to plead fraud and to bring a counterclaim in the tort of deceit against the Second and Third Respondents.

 

    1. In September 2020, the Second Respondent changed her solicitors and instructed Rainer Hughes who came on the record by a Notice of Acting on 30 September 2020.

 

    1. On 12 October 2020, the First Respondent’s application to resile from their admission of liability and plead fraud was allowed by the court. A defence and Part 20 claim was served by the First Respondent and Part 20 defences were served on behalf of the Second and Third Respondents on 17 December 2020. The Part 20 defence for the Second Respondent was drafted by counsel in English and a Statement of Truth was signed by the Second Respondent in English.

 

    1. The file handler at Rainer Hughes for the Second and Third Respondents was Mr Jason Borg. He left Rainer Hughes in November 2021 but before doing so he prepared a witness statement on behalf of the Second Respondent which was in English. The witness statement included the following:

 

i) At paragraph 10, referring to the immediate aftermath of the alleged accident, she said:

“I kept my communication with the driver of the grey Ford to an absolute minimum as I am not very good at communicating in English under extreme stress and I therefore had to rely on my daughter-in-law to handle the situation and communicate with the third-party driver”;

ii) At paragraph 23, referring to her dealings with an organisation called Direct Accident Management Ltd (“DAMS”) who were to arrange a courtesy replacement car for her, she said:

“I was further contacted by telephone by an agent of DAMS who told me that a vehicle would come to my address and all I had to do was to make sure I would be at home. There was no precise time slot and unfortunately, the agent arrived with the vehicle at a time when my daughter-in-law was not around to go through all of the paperwork for me before I could sign. The process seemed pleasant and I did sign the documentation, not realising that what I was actually signing was an expensive hire agreement.”

iii) At paragraph 28 Mrs Karadag said:

“I would like to give further clarification to the point of impetuosity. I have never heard of this word and did not know its meaning at the time. I have been advised on the meaning of this word and I therefore confirm that I do not want to make a case of impetuosity.

    1. It seems clear that this was intended to be a reference to impecuniosity but the misspelling was not picked up by Mr Borg before the statement was sent to the Second Respondent, nor was it corrected before the statement was signed. It is not clear whether it was the meaning of “impetuosity” or “impecuniosity” which Mrs Karadag did not know.

 

    1. The statement was signed by the Second Respondent on 3 November 2021 and contains a Statement of Truth. There is no Turkish version. The statement was made after Mr Borg had sent an email to the Third Respondent stating:

 

“This is my last week at Rainer Hughes and I will be moving on. This is why I really want to get your mother-in-law’s statement as well as yours done before I finish up at the end of this week. .. Please let me know if you and your mother-in-law will both be available to talk through the content of your statements with me.”

  1. In a statement dated 23 January 2023, Mr Sanjay Panesar, Rainer Hughes’ Senior Partner, says that the statement was filed and served in English with [the Second Respondent’s] signature without further reference to any translation required. Mr Borg did then say that the statement would subsequently be translated into Turkish, but this was “as further assistance” (whatever that may mean).

THE PRE-TRIAL REVIEW

The pre-trial review noted the discrepancy between the need for a translator and the absence of translations of the documents.  An order was made in clear terms.

    1. The pre-trial review took place before HHJ Lethem on 28 October 2022 and he directed that Rainer Hughes take instructions and clarify in writing that the Claimants’ witness statements were compliant with CPR 32 and that the Statements of Truth complied with CPR 22. The Order stated:

 

“AND UPON it being noted that the Claimant’s pre-trial checklist dated 27.10.22 sets out that she will require an interpreter at trial but that not all of her pleadings and witness statements have been translated into Turkish

It is Ordered that

1 The Defendants’ solicitors shall take instructions, and then clarify in writing (to be relied upon at trial) that the Claimant’s witness statements comply with CPR 32 and whether the various Statements of Truth that she has verified comply with CPR 22. They should also indicate the level of the Claimant’s grasp of English. Such written clarification shall be provided by 4pm 11.11.22.”

    1. Mr Panesar states in his witness statement:

 

“16 It has always been the position that Mrs Karadag’s English is proficient and that the interpreter at the trial was to assist with the stresses of the trial as Mrs Karadag is elderly and has medical issues. David Inskip conveyed HHJ Letham’s Order to Mrs Ilieva as she had been the first point of contact for the Claimant. Ms Ilieva confirmed in numerous telephone calls that Mrs Karadag fully understood the contents of her witness evidence, and it was again confirmed that the interpreter was necessary for the reasons above.

17 Mr Inskip confirmed to the court on 10 November that ‘Mrs Karadag’s level of English is proficient, and she is able to understand and assist in the drafting of the court pleadings. However for the purposes of a trial cross-examination it is the appropriate course of action to ensure no delay.'”

THE TRIAL

At trial, however, the claimant’s proficiency in English, proved to be wanting.

    1. The trial of the matter came before HHJ Monty KC on 12 December 2022. I take up the history from paragraph 13 of Judge Monty’s Judgment in the court below:

 

“13. The trial was in my list for two days, starting on 12 December 2022. The first issue I had to deal with was whether Mrs Karadag should have relief from sanctions in relation to the non-payment of the trial fee (an application for relief had been made on 22 November 2022). I also had to deal with the fact that Mrs Karadag’s counsel told me at the start of the hearing that Mrs Karadag was unable to read properly her witness statement or the pleadings, which were in English, as she was only proficient in Turkish. Mrs Karadag had attended court with a Turkish interpreter. It proved impossible for the statement and the pleadings to be translated in Turkish that day, and in the event I refused the application for relief from sanctions and I struck out the claim (there had been no proper explanation given for the failure to pay the trial fee, and because of the language issue the trial could not go ahead in any event). I also struck out the Defence to the Counterclaim.

THE RESULT

As we shall see in a later post, the action was struck out and a wasted costs order was made against the claimant’s solicitors.