Jake Rowley successful in High Court appeal concerning the admissibility of defectively prepared witness statements for non-English language speakers.

This morning, Garnham J handed down judgment in the case of Correia v Williams [2022] EWHC 2824 (KB), in which Jake Rowley successfully appeared for the Defendant/Respondent.  The decision is now the leading authority on the approach to be adopted by the Court in relation to the admission (or otherwise) of witness statements for non-English speaking witnesses, which have been prepared in a procedurally defective way.

 

The Background

Mr Correia was a motorcyclist who was involved in a road traffic accident with Ms Williams’ car.  Mr Correia’s case was that he was proceeding straight ahead across a junction, with a green light showing in his favour, when the Defendant turned right across his path, thereby causing a serious collision.  Mr Correia alleged to have sustained serious injuries, including of a urological nature as a result of his groin being thrust into the fuel tank of his motorcycle on impact.  Ms Williams’ case was that she had turned right with the benefit of a green light when it was safe to do so, and that Mr Correia had driven through a red light.  Liability was hotly contested.

The matter came on for a two-day trial before HHJ Gerald starting on 24^th January 2022.

Mr Correia is a Portuguese national who speaks Portuguese.  His witness statement, however, had been drafted entirely in English and bore a Statement of Truth written in English.  The statement contained the following:

“Whilst I can understand and speak English I am not wholly fluent and rely on the assistance of a translator during court proceedings. I am able to make this statement in English because the principal solicitor of Harris da Silva solicitors speaks fluent Portuguese.”

At trial, the Court was told by Counsel for Mr Correia that he had given his instructions in Portuguese to his solicitor – a bilingual English and Portuguese speaker – who had then drafted the statement in English.  A Portuguese language version of the statement had never been prepared.

At trial, Jake took the Court to the relevant procedural Rules and Practice Directions setting out the process by which a witness statement should be prepared for a non-English speaking witness, including: PD22, para 2.4; CPR r. 32.4(1), r. 32.8, and PD32, paragraphs 18.1, 19.1(8), 20.1, and 23.2, and argued that by reason of the defective preparation, the statement was inadmissible.

It was argued on behalf of Mr Correia that the statement was not inadmissible or, if it was, the Court should adopt one of a number of alternative suggestions to enable the Claimant to remedy the position (e.g. translating the English witness statement into Portuguese and asking Mr Correia to sign it; adjourning to enable a new statement to be taken; or allowing Mr Correia to give oral evidence in chief viva voce from the witness box).  It was also argued that the Court retained a power in PD32 paragraph 25.2, to enable the statement to be used notwithstanding its defective preparation, and the Court should so permit.

After hearing argument on the effect(s) of the defective preparation of the statement the Judge accepted that it was inadmissible on the basis that it was “simply not a witness statement”.  HHJ Gerald emphasised the importance of preparing witness statements properly and in accordance with the Rules (see: [24] internal paragraphs 23 – 24, 31 and 33 – 34).

As Mr Correia called no further evidence on the issue of liability, the claim was dismissed.

Mr Correia appealed with permission of Sir Stephen Stewart.

 

The Decision of Garnham J

The Appellant referred to a number of previous cases at High Court level in which the Court had approached the issue of a defectively prepared witness statement for a non-English speaker as being one pertaining to the weight to be attached to the statement (rather than a question of its admissibility per se).  Garnham J accepted Jake’s submission that none of the cases cited were authority for the proposition that a witness statement which did not comply with the Rules is admissible, because in none of those previous cases had the point been taken that the defects rendered the statement inadmissible and so the point had never actually arisen for determination ([32] – [38]).  Garnham J therefore considered it necessary to go back to first principles and the Rules themselves.

He noted that:

• CPR r. 32.8 requires a witness statement is drafted so as to comply with the Practice Direction. PD32 requires that the witness statement must ‘if practicable’ be in the witness’s own words and must, in any event, be drafted in their own language.  His Lordship confirmed: “The words “if practicable” qualify the need for the witness statement to be in the witness’ own words.  There is no such qualification for the next clause in that paragraph.  On the contrary, the express that applies to the requirement that the statement is in the witness’ own language is “in any event”” [39];
• PD32, para 20.1 requires the inclusion of a statement of truth in the witness’s own language to the effect that the contents are true [40].

His Lordship then stated, importantly, at [41] – [48] (emphasis added):

41. 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 summarized by the Judge. If the witness statement is not in his or her own language, there can be no confidence that it is their own evidence rather than the evidence of the drafter.

42. The necessity of compliance with the rules is demonstrated further by paragraph 23.2 which requires a foreign language witness statement to be accompanied by a translation filed with the statement. The purpose is obvious; it is so that others can check that there has been an accurate translation of what the witness, speaking in his or her own language, has said.

43. The consequences of defects in witness statements are addressed in PD 32 paragraph 25. The consequence of a deficiency of form is dealt with expressly in paragraph 25.1 which provides that the court may refuse to admit the statement as evidence (and may refuse to allow the costs of its preparation). Contrary to the judge’s view, in my judgment there is nothing in paragraph 25.2 to suggest that the deficiencies to which it refers are only deficiencies of form and not deficiencies of substance. However, such deficiencies, “can only be used with permission of the Judge.” It follows, in my view, that whether there is an error of form or of substance there is a route by which the court can exercise control over the admission of the evidence. The difference between the two categories of statement is that in the case of errors of form the default position is that the statement is admitted (unless the court rules otherwise); in the case of defects of substance the default position is that the statement is not admitted, unless the court agrees. 

44. In my view, that analysis is, at least, not inconsistent with the five authorities to which Mr Armstrong took me and it would explain why the point was never taken in those cases. There remains a power in the Court to admit defective witness statements even when the deficiencies are profound, but it is a power that will be exercised in the light of the nature, seriousness and consequences of the deficiencies.” 

45. At [22] in his judgment, the judge treated the Appellant’s witness statement as so defective that it was “simply not a witness statement”. In my view, in so holding the judge went too far. It was intended by the Appellant as the equivalent of the oral evidence that he would, if called, give in evidence and, if permission had been given for its use, it would have been so treated. However, it was manifestly defective in all the respects identified by the judge. These were defects of substance, not merely form, again for the reason the judge gave. As a result, the Appellant needed the judge’s permission to adduce the statement. 

46. The Appellant sought that permission in accordance with CPR25.2, as the judge made clear at [30]. Contrary to the judge’s view, the statement was not inadmissible per se but it was inadmissible without the judge’s permission. Had the judge simply refused to admit the statement without considering the circumstances and the merits of the application before him, his decision would have been open to criticism. But he did not. He made it clear at [30] that if he was wrong to regard the statement as inadmissible per se, he would not “be prepared in this case to allow the waiver, as it were, of these defects”. The critical question therefore is whether the judge was entitled to exercise his discretion to refuse to admit the statement. 

47. In my judgment, he was. In all the respects identified by the judge, this witness statement failed to meet the requirements of the rules. The rules about the provision of witness statements by those who are not fluent in English provides an important discipline for litigants and their advisers and are not lightly to be ignored. The judge correctly identified the reasons why to have allowed this witness statement to be admitted would have been grossly unfair. In particular, the Respondent had provided a witness statement which complied with the rules, and, as a result, the Appellant knew the evidence to which he has to respond. By contrast, the Respondent had only the account of events drafted by the Appellant’s solicitor, in a language in which the Appellant was not fluent. The difficulties that would have faced the Respondent’s counsel in cross examination on such a witness statement are obvious. As the judge observed, one of the purposes of requiring the service in advance of trial of witness statements are to tie the witness down to one account of events; to have allowed in this statement would have enabled the Appellant to escape that constraint. 

48. Furthermore, this application was being made on the first day of a two day hearing; to have permitted it would have been to limit severely the Respondent’s opportunity to respond and it would have put the hearing of the case on this date substantially at risk. Had an adjournment proven necessary, it would likely have put the parties to additional cost and it would have resulted in significant wastage of court time with consequent disadvantage to other litigants.”

 

Comment

Despite the wording of the relevant Rules and Practice Directions having been clarified as long ago as 6^th April 2020, regrettably, all too frequently, witness statements for foreign language speakers are defectively prepared in breach of the procedural requirements.  Such defective preparation has (in the writer’s experience) led to a mixed response from the judiciary including: cases being struck out for non-compliance; cases being dismissed for want of ‘proper’ or ‘admissible’ evidence; and requirement that an application for relief from sanctions to be made.  Garnham J’s decision therefore provides a welcome clarification of the law.

It is suggested that, as a result of the decision in Correia, the correct approach is now:

• Defects in the proper preparation of a witness statement for a non-English language speaking witness are likely to be classified as defects of substance (as opposed to simply defects of form);
• The consequences of defective preparation viz. matters of substance are catered for by PD32, paragraph 25.2: the statement is not admitted, unless the Court agrees to admit it. The party seeking to rely on the statement must therefore convince the Judge to grant permission to rely on the defective statement.  If such permission is not granted, the statement will be inadmissible into evidence;
• The Court’s power to admit the defective statement remains even where (as in Correia) the deficiencies are profound, but it is a power that will be exercised in the light of the nature, seriousness and consequences of the deficiencies. It is suggested this is therefore a case management decision;
• The rationale underpinning the need for accurate translations of evidence from non-English speaking witnesses, as well as the rationales underpinning the advance creation and exchange of witness statements, are of real importance in determining whether permission to admit a defective prepared statement should be granted.

 One should not overlook the salient and timely reminder from Garnham J to all litigators when he stressed (emphasis added): “The rules about the provision of witness statements by those who are not fluent in English provides an important discipline for litigants and their advisers and are not lightly to be ignored.”

Jake Rowley is an experienced civil practitioner whose core areas of practice are complex and high value personal injury, commercial litigation, and insurance.  Jake has a particular interest in procedural law.  For any further information, or to instruct Jake, please contact the Farrar’s Building Clerking Team.

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