Translation rules impede access to justice

The amendment to Civil Procedure Rule PD32 in April 2020 created new obligations when drafting witness statements.

PD32.18 provides that a witness statement:

• Must, if practicable, be in the intended witness’s own words.
• Must in any event be drafted in their own language.

This was considered by Grantham J in Correia v Williams [2022] EWHC 2824 (KB). The claimant was a Portuguese national. His statement was drafted in English and then translated to Portuguese.

His statement contained the wording, ‘Whilst I can understand and speak English I am not wholly fluent and rely on the assistance of a translator during court proceedings.’ The claimant was able to make the statement in English because his solicitor spoke fluent Portuguese.

Mr Justice Garnham noted: ‘The result is that the witness statements and statement of truth must be in the witness’s own language. The reasons for that are obvious and are accurately summarised by the judge. If the witness statement is not in their own language, there can be no confidence that it is their own evidence rather than the evidence of the drafter.’

It was successfully argued that the statement did not comply with PD32, therefore the claimant had no evidence on which he could rely and consequently his claim was dismissed.

‘Own language’

We are fortunate to live in a very diverse country. There are many different languages spoken by the millions living in the UK.

The CPR does not define ‘own language’. The use of ‘own language’ can be interpreted in many ways and in practice can mean many different things.

There are those of dual nationality, those who are bilingual, those who were raised in a country (such as some African countries) where the formal education is delivered in English, and those who settled in this country at a young age and have spoken English far longer than their ‘own language’. Arguably, a person can have two or more ‘own languages’.

The amendment to PD32 puts a huge hurdle in front of litigants in accessing justice in that they must, for example, locate a solicitor who speaks Chittagonian (a Bengali dialect of which there are almost 200,000 speakers who are UK residents), happens to practise in a specific area of law relevant to their case, so that their statement can be drafted in Chittagonian.

An alternative involves the large investment in time and expense of the solicitor sitting with the client and an interpreter, to ensure the relevant and pertinent questions are asked and answered sufficiently, to allow the interpreter (who is not legally qualified) to draft the client’s statement. Once the client has signed their own language statement, that statement then has to be translated into English.

‘Own words’

Since Correia, parties are increasingly facing criticism from opponents because their statements are not in the ‘witness’s own words’ and include ‘lawyerly language’.

Clients seek the assistance of solicitors to help them articulate their position in a formal legal manner, including drafting a statement that adequately covers the necessary points pertinent to their case.

To expect a party without any legal training (and often any legal experience whatsoever) to formulate their own witness statement is surely a fast track to disaster – especially if a party is faced with serious allegations such as fraud or fundamental dishonesty.

At the very least, it will involve considerable time and cost in the solicitor, client and any interpreter (drafting the statement in the client’s own language) going back and forth to ensure that the statement covers all the necessary points.

Access to justice

The drafting of a statement in a client’s own words and own language is, in a large proportion of cases, to be undertaken by solicitors in cases which are subject to fixed costs.

Interpretation and translation fees can run into thousands of pounds; however, Aldred v Cham [2019] EWCA Civ 1780 is considered the leading authority for the proposition that the costs of translation and interpretation fees are not recoverable from a paying party.

Coupled with the recent reforms to road traffic accident personal injury claims – which could result in an award as low as £240 for an injury – a client whose ‘own language’ is not English may have any award completely wiped out by translation and interpretation fees.

PD1A was introduced in April 2021, a year after PD32 was amended. PD1A is concerned with the courts ensuring that vulnerable parties ‘are on an equal footing and can participate fully in proceedings… and can give their best evidence’.

One factor which may cause vulnerability is communication or language difficulties.

This provision appears to contradict Aldred v Cham and Correia. A party whose ‘own language’ is not English cannot be said to be on an ‘equal footing’ with a party whose first language is English when the former does not have the same options of legal representation or has to shoulder the non-recoverable costs of complying with PD32.

It is also worth considering whether the obligations imposed by PD32.18, Correia and Aldred v Cham infringe Article 6(1) of the Human Right Act 1998 – the right to a fair trial.

On a fixed costs regime and in the instance where the costs of the interpreter are not recoverable, the obligations imposed by PD32 mean that retaining clients whose own language is not English may no longer be a sustainable or economic way for law firms to operate. Consequently, those clients will effectively be denied access to justice unless they are able to identify a solicitor who speaks – and writes – their ‘own language’ or the client has the financial means to instruct a solicitor to comply with the Rules.

 

Cathy Wrigglesworth is a civil and commercial, and debt collection litigation solicitor at Parkers Solicitors, Stockport