In Bahia v Sidhu,(1) the High Court considered the difficulties that arose when a witness provided written statements in English but in practice spoke a mix of two languages (English and Punjabi) and gave evidence through an interpreter. Ultimately, despite expressing reservations about choosing English for the written statements, when seen in the context of cross-examination (both in English and Punjabi), the Court found that the choice of language for the witness statements did not represent a breach of the relevant Civil Procedure Rules (CPR).
The wider proceedings concerned two partnerships formed between Jaswinder Singh Bahia (Bahia) and Tara Singh Sidhu (Sidhu), which acquired several properties. Bahia and Sidhu had managed their property portfolio successfully for many years, but eventually the relationship between them became hostile and a dispute arose over the assets and income of the partnerships.
By October 2016, notices of dissolution had been served in respect of both partnerships. Sidhu passed away in November 2018 and Bahia commenced proceedings against the representatives of Sidhu's estate. In November 2019, the High Court gave summary judgment on the issue of existence and dissolution of the partnerships, ordering that both had been dissolved and should be wound up and that any necessary inquiries should be determined at a hearing. It was later ordered in July 2020 that a trial would be held on 17 inquiries arising in the dispute.
The Court heard from a total of 10 witnesses, including Bahia. The Court's consideration of Bahia's witness evidence in the context of his cross-examination is particularly noteworthy for practitioners who have witnesses who speak multiple languages.
Bahia's witness evidence
Bahia relied on two witness statements during the hearing, which were written in English and prepared by Bahia's solicitors. Both statements acknowledged that English was not Bahia's first language and that his usual way of communicating was to use both English and Punjabi. The statements also noted that certain words and phrases used in the case had been explained to Bahia by his solicitors.
During the course of Bahia's oral evidence, it came to light that a Punjabi translation of his second witness statement had been prepared after the signing of the English version, but that it had not been signed or filed at court.
Bahia acknowledged under cross-examination that there were "many" words in the English version of his witness statement that he did not understand. Bahia also requested to take breaks to remind himself of his statement, admitting that he had sought assistance from his son on the translation of certain words during his cross-examination. An interpreter was also required for the entirety of Bahia's evidence, and Bahia often switched between Punjabi and English.
As a result, in closing submissions the defendants' counsel submitted that Bahia's witness statements were in breach of CPR Practice Direction (PD) 32 and PD 57AC and that they should be treated with a "considerable degree of caution" and afforded no weight, in the absence of documentary or other satisfactory corroboration. This submission was on the basis that:
- Bahia's witness statements were not in his own words; and
- Bahia's witness statements and statement of truth had not been drafted in his own language.
In response to these concerns, Bahia's counsel argued that the recent proliferation of witness statement guidance and rules had become a "legal minefield" and that it was "particularly hazardous" in a case such as this where the witness spoke two languages.
Bahia's counsel referred to paragraph 18.1 of CPR PD 32, which states that "the witness statement must, if practicable, be in the intended witness's own words" (emphasis added). It was argued that it was not practicable to do anything other than prepare Bahia's statements in English in words that were not necessarily his own, as Bahia communicated in two different languages. The counsel also referred to certain sections of the Equal Treatment Bench Book issued to judges, including the following.
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 . . . it is quite another matter having to appear in court, understand questions and give evidence.
some people also 'code switch' as they talk, switching unconsciously between languages as they search for the most natural way to express themselves.
The Equal Treatment Bench Book also warns judges of the need to be alert to different language needs, and not to assume that just because a witness has lived in the United Kingdom for many years they do not require an interpreter.
The judge acknowledged that the witness statements were overly "lawyered" and that the second statement in particular did not clearly depict Bahia's recall of key events. On balance, however, the judge found that Bahia's solicitors had been faced with a "difficult decision" over which language to use, and that their decision to do so in English was not open to criticism. The judge considered Bahia to be an honest witness, who was hampered by his language difficulties and poor recollection. The Court ultimately found that there had been no serious breach of the relevant PDs, noting that they could be clearer as to the approach to be adopted in these situations.
The Court acknowledged these difficulties and indicated the need for clarity in the PDs to address the particular issues arising in these situations. This case therefore highlights the difficulties faced by solicitors where English is not the first language of a witness, both in terms of the preparation of witness statements, and in preparation for cross-examination.
Solicitors must carefully consider the most appropriate language for witness statements, with reference to PDs 32 and 57AC in mind and what the most "practicable" language is based on the witness's language capabilities. Similarly, very careful preparation for cross-examination should be undertaken, including deciding in consultation with the witness whether an interpreter is required.
For further information on this topic please contact Matthew Evans or Jessica Davies at RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.