The Civil Procedure Rules and case law provide some guidance, however there is currently no definitive answer.
Insisting on a strict approach provides certainty in litigation and can result in claims being struck out if opponents fail to comply. Courts will not make the 'correct' order of their own volition, and a pro-active approach is usually required.
When a witness cannot understand (or read, or speak) English he can:
- Have the statement of truth verified by an "authorised person" (Practice Direction 22)
- Have the witness statement translated from the witness' first language into English (Practice Direction 32)
Practice Direction 22
Paragraph 3A.1 states:
"Where a document containing a statement of truth is to be signed by a person who is unable to read or sign the document, it must contain a certificate made by an authorised person"
An 'authorised person' is a person who is authorised to administer oaths and take affidavits, for example a solicitor or barrister. The authorised person may read the English language version of the witness statement to the witness and ensure his or her understanding. The witness may then sign the statement of truth. But how does the solicitor ensure that the witness can understand the document? Either:
- The solicitor is able to speak the witness' first language, or
- An interpreter is used as an intermediary
Courts generally accept this approach if it is not challenged or addressed in advance, however an inability to "read or sign" a document in English is not the same as an inability to speak the language. It could therefore be reserved for witnesses who are for example blind or cannot physically sign a document.
Practice Direction 32
Paragraph 23.2 states that where the court has directed a witness statement to be filed in a foreign language:
(1) the party wishing to rely on it must –
(a) have it translated, and
(b) file the foreign language witness statement with the court, and
(2) the translator must 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 point most often taken by opponents (who do not want to comply with PD 32) is that the court has not directed witness evidence to be filed in a foreign language therefore PD 32 does not apply.
There appears to be a lacuna in the Civil Procedure Rules; it would be more helpful if they required any statement made by a witness who cannot speak English to be translated and verified by an affidavit.
Case law tends towards Practice Direction 32. In Force India Formula One Team v 1 Malaysia Racing Team Sdn Bhd and others  EWHC 616 (Ch), Arnold J. observed, "In my judgment the correct course would have been for the [foreign] witnesses … to make their statements in Italian, and for the statements then to have been translated in English".
HHJ Kaye QC in Re Phoneer  2 BCLC 241 said, "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 [of PD 32]". This procedure was supported by HHJ Gore QC in the case of Hussain v Naqui (2014) when the claimant was ordered to serve fresh witness evidence "written in a language that they can understand".
In Nikhoo v Sodal (unreported) (Watford County Court), HHJ Cryan noted on appeal that the judge sitting in the lower court had been erroneously referred to Practice Direction 22 when he ought to have been referred to Practice Direction 32. In Myftaraja v Pimbley (unreported) (Bolton County Court), Deputy District Judge Stone refused the claimant's application to allow evidence from a witness because his witness statement had not been prepared in the correct format, i.e. in accordance with Practice Direction 32.
Paragraph 18.1, Practice Direction 32 states that a witness statement must be in the witness' own words, which suggests it should be in his own first language. Paragraph 8.2, Practice Direction 22A (Family) states that where a witness statement is in a foreign language the party wishing to rely upon it must have it translated and file it with the court, and that a translator must sign the translation. The Family Procedure Rules do not apply to civil cases but even so they suggest a comparable approach.
There are two approaches to take in civil litigation. PD 22 is less costly and favoured by claimants, especially where the solicitor acting can speak the witness' first language. PD 32 is supported by case law and, arguably, by the Civil Procedure Rules – para. 18.1 PD 32.
Courts will not routinely order witnesses to comply with PD 32 unless asked to do so, and a specific direction should be sought at allocation. Opponents might argue that the process is onerous and/or unnecessary; however it provides certainty and prevents a witness from changing his evidence at trial due to "misunderstanding". This is especially true in fraudulent claims, where lying witnesses will use any means necessary to protect themselves. The law will continue to evolve, and future cases will provide further guidance.