The news of Afzal -v- UK Insurance Ltd [2023] EWHC 1730 (KB) from Civil Litigation Brief (known to many as the civil litigation bible and source of all knowledge) was probably one of the most reassuring cases to be handed down by the higher courts regarding witness statements, maybe just eclipsing of Santiago V MIB which finally gave way for Claimants in Fixed Recoverable Cost cases to be able to recover the cost of translation and interpreter fees.
The case gave rise to the point that a bilingual witness may not be required to give evidence in their own language.
Why is it important?
I recall speaking to someone years ago who said it was odd to realise that they were no longer thinking and dreaming in their first language. In fact, imagine if your first language was Spanish but you spoke English most of your childhood and the entirety of your adult life. It could be prejudicial to be compelled to give evidence in Spanish if you rarely spoke it.
It is also the increased time and expense of preparing a statement in another person’s language. I refer to my recent post where I discuss the correct way to ensure you comply with CPR PD 32, but also the binding authority of Correia v Williams [2022] EWHC 2824 (KB) which is distinguishable from Afzal as the witness in Correia could not speak English or sufficient English.
Consequences of not checking?
I was against Counsel at a holiday sickness trial where the Defendant’s witness was Turkish, required a translator and his statement was in English. It was his evidence that he could read and speak English but was not sufficiently to be cross examined.
The long story short was that the Judge was able to take steps to ensure the witness could continue to give evidence in Turkish, but the interesting point was what my opponent made. He said that if a witness was bilingual then there was a choice of what language the witness could give evidence in.
His submission was that it was for the party relying on said witness to decide the appropriate language. If they wanted to ‘gamble’ on the witness being able to speak English sufficiently then that was their choice and they would suffer the consequences if they were unable to do so.
How to check the suitability of the English?
It may seem silly but the ability to test the suitability of your client or witness’ English is already at your disposal. It is something that you, your colleague or agent should have already taken.
Speak to your witness. Undertake a conference with them. Ask them to speak about the accident. Ask them open questions and see how they deal with responses. You must avoid coaching your clients and polluting their evidence with your own words so if you want to test how they respond to leading questions, talk about something else.
If they struggle with communicating in English, do not be afraid to ask them if they would be better suited discussing matters through an interpreter. I once had a Claimant whose wife’s first language was not English. However upon engaging in a conference with her for the preparation of her witness statement, it was clear that her English was more than sufficient. We proceed to trial and I expect Counsel for the Defendant was satisfied that her English as sufficient that he did not raise the issue.
The other point is that the witness may be sufficiently fluent in spoken English but their written English is not sufficient. This will result in their statement needing to be in their own language. Does this mean however they must also give oral evidence in their own language? Possibly not. As long as they can attest that they understood the contents of their own statement
I would recommend however that the statement and oral evidence is given in the same language.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.