Foreign language witness statements: new procedural requirements

The Master of the Rolls has made the 113th update to the Practice Directions supporting the CPR. The amendments specific to foreign language witness statements are due to come into force on 6 April 2020. In this post, Sam Cuthbert, a pupil at 12 King’s Bench Walk, outlines how these amendments will affect the procedural requirements for foreign language witness statements.

Summary

In summary, the updates give effect to the judgment of HHJ Kaye QC (sitting as a Deputy Judge of the High Court) in Re Phoneer [2002] 2 BCLC 241 who held that:

“A witness statement must comply with the relevant Practice Direction: see Rule 32.8. The relevant Practice Direction to Part 32 of the Civil Procedure Rules requires that a witness statement must, if practicable, be in the witness’s own words: see paragraph 18.1. The obvious consequence is that, if the witness does not speak English, the witness statement will be in that person’s own language, which must then be translated and the translation filed and verified in accordance with paragraph 23.”

The amendments strengthen and clarify the procedural framework for foreign witness statements. Practically, the most significant changes codified by the amendments are:

  • The statement of truth must be in a witness’s own language;
  • Where a legal representative has signed a statement of truth, they must have explained to the client beforehand – through an interpreter if necessary – that by signing he would be confirming the client’s belief that the facts stated in the document were true;
  • CPR 22PD 3A.1 now says that the “inability of a person to read or sign documents: only applies to those who cannot read or sign documents for reasons other than language alone”. This confirms that applications to strike out a witness statement for breach of the foreign language requirements should not therefore be made pursuant to PD22, 3A.1;
  • The body of the witness statement must now, if practicable, be drafted in the witness’s own language, as well as being in the witness’s own words;
  • The body of the witness statement must contain details as to the process by which it has been prepared;
  • Translated witness statements must include the date of translation and be signed by the translator.

The full list of the forthcoming practice direction amendments can be found here. The specific provisions affecting foreign language speakers are set out in the table below.

The Changes

Practice Direction 22 – Statements of Truth

 

Practice Direction 32 – Evidence

 

1)     In paragraph 2.1, in the wording of the statement of truth, at the end insert “I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”.

 

2)     In paragraph 2.2—

(a) after “as follows” insert “(and provided in the language of the witness statement)”; and

(b) in the wording of the statement of truth, at the end insert “I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

 

3)     After paragraph 2.3 insert—

“2.4 The statement of truth must be in the witness’s own language.

2.5 A statement of truth must be dated with the date on which it was signed.”

 

4)     In paragraph 3.8(2), after “to the client” insert “(through an interpreter where necessary)”.

 

5)     For the heading above paragraph 3A.1 substitute— “Inability of persons, other than by reason of language alone, to read or sign documents to be verified by a statement of truth”.

 

6)     In paragraph 3A.1, after “the document,” insert “other than by reason of language alone,”.

 

1)     In paragraph 17.2—

(a) at the end of sub-paragraph (4), omit “and”;

(b) at the end of sub-paragraph (5), for the full stop substitute “; and”; and

(c) after sub-paragraph (5) insert— “(6) the date of any translation.”

 

2)     In paragraph 18.1—

(a) in the first sentence, after “own words” insert “and must in any event be drafted in their own language”;

(b) at the end of sub-paragraph (3), omit “and”;

(c) at the end of sub-paragraph (4), for the full stop substitute “; and”; and

(d) after sub-paragraph (4) insert— “(5) the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter.”

 

3)     In paragraph 19.1—

(a) at the end of sub-paragraph (6), omit “and”;

(b) at the end of sub-paragraph (7), for the full stop substitute “; and”; and

(c) after sub-paragraph (7) insert— “(8) be drafted in the witness’s own language.”

 

4)     In paragraph 20.1, for “that he believes” substitute “in their own language that they believe”.

 

5)     In paragraph 20.2, in the wording of the statement of truth, at the end insert “I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

 

6)     In the words in parentheses after paragraph 20.3, after “the document” insert “other than by reason of language alone”.

 

7)     For paragraph 23.2 substitute— “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.”.

 

 

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