Lost in translation? Carin Hunt explores recent amendments made to the CPR Practice Directions

Carin Hunt reviews the new procedural requirements for foreign language witness statements following the 113^th update to the CPR Practice Directions.

Try not to get too excited, but a number of updates to the Practice Direction to Part 32 (Evidence) of the CPR came into force on 6 April 2020 – and I’m going to tell you about them. Specifically, this article will update you on the changes to the procedural requirements for foreign language witness statements, which are relevant to those of us litigating cross-border disputes. In brief, the rules now require that witness statements must be written, and statements of truth signed, in a witness’ “own language”.

The new requirements, and their respective paragraph numbers in PD32, are as follows:

• The heading of the witness statement must, in the top right-hand corner of the first page, include “the date of any translation” (paragraph 17.2).
• After the provision in paragraph 18.1 that a witness statement must, if practicable, be in the witness’s own words, the following is now be inserted: “and must in any event be drafted in their own language”. This requirement has also been added to paragraph 19.1, which lists the format requirements for witness statements.
• The statement of truth must now also be in a witness’s own language (paragraph 20.1).
• Every witness statement must now state the process by which it has been prepared, for example, face-to-face or over the telephone. In the case of a foreign language witness statement, this will include an indication that it has been prepared through an interpreter (paragraph 18.2).
• Paragraph 23.2 will continue to state that a party relying on a statement in a foreign language must have it translated and file the foreign language witness statement with the court. However, the translator’s obligations are now phrased as follows: “the translator must sign the original statement and must certify that the translation is accurate”. Prior to the update, the translator was required to make and file with the court an affidavit verifying the translation and exhibiting both the translation and a copy of the foreign language witness statement.

The requirement that the statement of truth be in a witness’s own language is also introduced in Practice Direction 22 (Statements of Truth), at paragraph 2.4. Other changes to PD22 in respect of foreign language witness statements include the following:

• Para 3.8(2), which applies when a legal representative has signed a statement of truth, now reads as follows (updated text is underlined): “his signature will be taken by the court as his statement that before signing he had explained to the client (through an interpreter where necessary) that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true includes the following”.
• Para 3A.1 is amended to make clear that it applies where a person cannot read or sign documents to be verified by a statement of truth other than by reason of language alone (usually by reason of illiteracy).

The changes raise the question of what counts as a witness’ “own language”. For truly bilingual witnesses, their “own language” will surely be either of the languages that they speak fluently. What about those with a strong handle on a second language, but who do not quite meet the test of fluency? Many of us working in cross-border law will be aware that Europeans often learn second and even third languages to a very high level at school. This is an asset that many of our colleagues abroad deploy in their cross-border practice. When asking yourself whether your witness can write his statement in English, if it is his second language, I suggest that he should only do so if English is the language in which he would give oral evidence at trial.

About the Author

Carin is keenly developing a cross-border element to her personal injury practice, and has drafted pleadings and appeared in court in respect of package travel claims, Odenbreit claims, and claims involving consumer contracts which the Brussels Recast Regulations apply.

She also receives instructions in flight delay, Montreal Convention, and Athens Convention claims. Carin’s clinical negligence practice compliments her international injury work and she has recently advised in two cases involving medical treatment abroad.

Find Out More

If you would like to discuss any of the issues covered in this article please contact Carin Hunt directly or via her practice management team; Paul Barton or Mark Gardner on +44 (0)20 7353 6381 who would be happy to have a discussion in the strictest of confidence.

News 25 Jun, 2020