I am noticing that more often now, the guidelines for small claims track matters include a requirement that witness statements be written in the witness’s own language. If the witness’s language is not English, an English version of the statement must also be provided, and an appropriately independent interpreter should be present at the trial.
This, whilst understandably is important for the purposes of a fair trial, could be a significant barrier to access of justice.
What happens in fast track trials and beyond?
The usual position regarding witnesses who cannot speak English will usually be governed by PD 32 paragraph 18.1 (as CPR 32.8 states that a witness statement must comply with the requirements set out in Practice Direction 32):-
“The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language, the statement should be expressed in the first person and should also state……….”
Further, PD 32 paragraph 23.2 sets out the requirements
Where a witness statement is in a foreign language—
(a) the party wishing to rely on it must—
(i) have it translated; and
(ii) file the foreign language witness statement with the court; and
(b) the translator must sign the original statement and must certify that the translation is accurate.
These specific changes occurred in April 2020, although there was a similar rule regarding paragraph 23.2, but not paragraph 18.1.
Relevant authorities
There are various authorities that followed the changes to PD 32.
In the case of Correia v Williams [2022] EWHC 2824 (KB), the High Court refused to overturn a Circuit Judge’s decision to strike out the Claimant’s evidence, which was prepared in English by the Claimant’s Portuguese Solicitor. The High Court also did not challenge the Circuit Judge’s findings that the methods to remedy the defective statement were insufficient. This includes translating the English statement into a foreign language, translating it orally to the witness or allowing the witness to give their evidence in chief live in the witness box.
However, if the witness was bilingual and could adequately speak and understand English, then they could (as per Afzal -v- UK Insurance Ltd [2023] EWHC 1730 (KB)) elect to have their evidence in English and did not have to be compelled ot give evidence in their mother tongue.
The huge concern for fixed costs fast track personal injury cases was that Aldred v Cham [2019] EWCA Civ 1780 suggested that the translation and interperter fees could not be recovered from the Defendant under CPR 45.29i(2)(h) as it was not a particular feature of the dispute. However, Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838 found that the inability to give evidence in English was a particular feature so such costs were recoverable.
Small claims track
The starting position is that CPR 27.2(1)(b) states that Part 32 (evidence) does not apply to the small claims track, except rule 32.1 (the Court’s power to control evidence). This would usually mean that the usual provisions regarding witness statements for non-speaking witnesses would not apply.
However, directions such as the ones below are becoming more commonplace:-
This is a difficult position for parties and practitioners where, as per CPR 27.14(2), there is no particular rule that would allow for the recovery of interpreter costs.
This is going to be a significant obstacle for those not insured and require access to justice. No doubt, insurers looking to defend claims or recover outlays may be willing to cover these costs, but a litigant in person could be deterred from bringing the claim.
I would recommend that those acting for parties in small claims track litigation to address this point early. It will be the case that they will need an interpreter at trial, or is their grasp of English so sufficient that they can both understand written English and be comfortable in being crossed-examined in English?
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.