R&N Motor Industry Success – When Should a Statement Be in the Witness’s Own Language?
A recent case led by Mark Hambling highlights the vital importance of preparing witness statements in the client’s own language and the witness’s ability to give their evidence in English. As the court reaffirmed, failure to follow this can undermine a fair trial, lead to strike-out of claims and result in cost sanctions.
At Rogers & Norton, we are privileged to be instructed by a range of motor dealerships who trust us with managing their road traffic insurance claims. As part of our work we handle cases related to accidents involving large fleets of demonstrator cars, often driven by customers. It is an inevitable consequence of the business of motor dealerships that accidents will occur and when they do it is critical to investigate them thoroughly and meticulously. This ensures that any claims paid are substantiated by the evidence and accurately reflect the value of the damages, as well as safeguarding the position of both the dealership’s drivers, customers and insurers.
A recent success we achieved for a client highlights the importance of witness statements, particularly in cases where language proficiency is a factor. Mark Hambling, one of our Directors and head of the Personal Injury Team, recently defended a claim amounting to over £12,000 for credit hire charges and vehicle damage. Mark was not only able to defend the claim successfully but will also now be able to recover the costs for repairs to our motor dealership client’s vehicle. While the case initially appeared to be a straightforward road traffic accident (RTA) with a modest value and a dispute as to who was at fault, it took an interesting turn regarding the issue of witness evidence. This twist ultimately resulted in an early and favourable outcome for our client.
The case centred on the issue of liability initially, before the credit hire issues became relevant. The Claimant, a foreign national who had been living in the UK for several years and had previously operated a business in the UK, was involved in an accident with a vehicle being driven by our motor dealership client’s customer on an unaccompanied test drive.
When witness statements were exchanged between the parties, all statements, including that of the Claimant, were provided in English. However, when the case progressed to trial, it quickly became apparent that the Claimant was struggling with his command of the English language. During our very basic cross-examination, the Claimant became visibly confused and had difficulty understanding and responding to the questions posed to him.
The judge was the first to raise concerns about whether a fair trial could be conducted, given the Claimant’s evident difficulties with the English language. The judge questioned whether the proceedings should be adjourned to allow for a fair trial, suggesting that the Claimant’s evidence be provided in his own language with a certified translation into English and an interpreter available at the final trial. This approach would help ensure the Claimants evidence was his own and not that of the statement drafter to ensure a fair trial.
The judge’s concerns accorded with the relevant court rules and practice directions, specifically the Civil Procedure Rules (CPR), CPR 32PD18.1, which states: “The witness statement must, if practicable, be in the intended witness’s own words and in any event be drafted in their own language.” Furthermore, we highlighted CPR 32PD.19, which requires that a witness statement be in the witness’s own language. These rules are designed to safeguard the fairness of proceedings and ensure that all parties, including the court, understand and can rely on the evidence presented.
To further support our argument, we referred the court to the case of Correla v Williams (2022) EWHC 2824(KB), which underlines the importance of a witness giving their evidence in their own language. The case emphasised that allowing evidence to be given in a foreign language can prevent potential misunderstandings and help avoid issues, such as contempt of court. Based on this guidance and the case law, the court agreed to adjourn the trial as an alternative to strike out and awarded costs to our client for the wasted trial time, as the Claimant solicitors had failed to properly prepare their witness evidence in line with the court’s requirements.
Upon granting the adjournment, the judge issued a clear direction regarding the steps to be taken as to witness evidence by the Claimant before any final hearing. Specifically, the judge ordered that the Claimant’s witness statement be provided in the Claimant’s own language with a certified translation into English. The judge also required an interpreter to be available at any final trial. This order gave the Claimant a second chance to remedy the issues with the original statement.
Despite the judge’s clear direction and repeated reminders from our team, the claimant’s solicitors submitted the same earlier statement, initially given in English, but now with a translation of that statement into the Claimant’s native language. This was in direct contravention of the judge’s order, creating serious concerns regarding the authenticity and accuracy of the evidence. We submitted the court could no longer be confident that the Claimant had truly understood the statement that had been signed and presented as his evidence.
With the support of our client, we sought to strike out the claim on the grounds that the Claimant had failed to comply with the judge’s directions and as required by CPR 32PD.18.1. Our application was successful, and as a result the claim was struck out, as was any defence to the Counterclaim – so the Counterclaim will now alone proceed to a hearing. Not only did this outcome spare our client the risks and costs of continuing to trial on the claim, but it also allowed us to recover the costs associated with the strike-out application.
In conclusion, this case serves as an important reminder of the critical role that witness statements play, especially when language barriers are involved. Adhering to the procedural rules regarding witness statements and ensuring that evidence is provided in a witness’s own language can be the difference between success and failure in a claim and potential wasted costs orders. For both Claimants and Defendants, it is vital to remain vigilant about potential language issues early in the process, ensuring that the party giving the evidence understands the statement and is giving their own evidence. The use of translators and interpreters should be considered whenever concerns arise regarding a witness’s evidence or potential language barriers. Detailed file notes should be made documenting any decisions about the language used for the statement, especially when there are doubts about whether the witness can provide their statement in English. Additionally, a detailed knowledge of the court rules and law in this area is required.
Practise Points:
- Whether you act for a Claimant or Defendant, always have an eye on your client’s ability to give their evidence in English. If there is any doubt, given CPR 32PD18.1, and 32PD19.1(8), and the case of Correla, consider following the interpreter route.
- Ensure you have a thorough understanding of the rules and the importance of a witness statement. It is equivalent to oral evidence, signed with a statement of truth, and will be the document your client is cross-examined on.
- If you pursue the interpreter route, remember to ensure the statement is taken and signed I the witness’s own language and then translated to English with a certified translator. Doing so in reverse runs the real risk of it being argued that the witness did not understand the evidence given and could affect the evidence at trial and the success of the case.
- If a translator is necessary and the claim or defence is successful, Santiago v MIB [2023] EWCA Civ 838 provides helpful guidance from the appeal courts on recovering these costs. However, record your decisions on the need for a translator in a detailed note to rely upon at a later date if challenged on the need.
- It is clear that judges expect those taking evidence from witnesses to look for the red flags in their ability to give evidence in English, and if it appears these issues were not addressed and should have been, cost sanctions are likely, particularly where court time is then wasted.
Rogers & Norton’s talented Motor Industry Team have many years experience acting for motor industry clients – advising on all aspects of credit hire, personal injury and outlay claims.
For more information about the services provided by this team please contact Mark Hambling on 01603 675637, or email mark.hambling@rogers-norton.co.uk to discuss how our team can assist you.
For more information on our legal services or to arrange an appointment with a member of our team, contact us at 01603 666001, email enquiries@rogers-norton.co.uk or complete the ‘Request a Consultation’ enquiry form on our website.
*This article is provided for general information purposes only and does not constitute legal or any other professional advice.