Witness statements remain the backbone of civil litigation in England and Wales, intended to capture, in a clear and reliable form, the evidence a witness would otherwise give orally at trial. In recent years, however, the courts have placed increasing emphasis on strict compliance with CPR 32 and Practice Direction 32, particularly where the witness is not fluent in English. The requirement that a statement be drafted in the witness’s “own language”, coupled with rules on statements of truth and translation, has given rise to a line of authority clarifying both the purpose of these provisions and the consequences of non‑compliance.
This is a broad-brush reminder of what the law has been since 2020.
CPR and Practice Direction 32
The standard approach for witnesses unable to speak English is typically guided by PD 32 paragraph 18.1, as CPR 32.8 states that witness statements must meet the criteria outlined 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.
Correia in mind
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-speaking solicitor. The High Court also did not challenge the Circuit Judge’s findings that the methods to remedy the defective statement were insufficient. In essence:-
- Providing oral evidence in chief, instead of relying on the defective statement, was not considered to be a fair trial, as the Defendant would be ambushed at trial.
- Translate the existing English witness statement back into Portuguese, which was considered to be double hearsay/translation (the first being the English preparation fo the statement, and then translated into Portuguese).
- Simply reading his statement back in Portuguese, rejected for the same reason above.
- Adjourning to allow the Claimant to get a new statement, which would be unfair, allow a change of evidence and was disrupting the trial
This put significant pressure on Claimant Solicitors, who at the time would have believed there was no right to recover translation fees under the fixed costs regime until a certain case reached the Court of Appeal.
Exaggerated example of translation issues
I practiced karate for about twenty years, starting at age 5-6 with a traditional association using Japanese terminology. I learned many Japanese phrases in karate. Here are a few kicks:-
- Roundhouse kick – Mawashigeri – 回し蹴り
- Knee kick – Hizageri – 膝蹴り
- Front kick – Maegeri – 前蹴り
Many assume ‘geri’ means ‘kick,’ but it actually means diarrhoea when used in isolation (下痢). For a kick combination, say ‘Keri-waza’ since ‘keri’ means ‘kick’ alone. Geri only becomes a kick if there is a word that precedes it, so for example, mawashi-geri.
This is, of course, an exaggerated example showing how, depending on context, translating a word can cause it to lose its meaning and why people might be more impressed with Bruce Lee’s diarrhoea rather than his kicks.
Own language can include English if the sufficiently fluent
In the following year, Afzal v UK Insurance Ltd [2023] EWHC 1730 (KB) came along.
The claimant brought a personal injury claim following a road traffic accident and at trial, the Circuit Judge refused to admit the Claimant’s witness statement because it was in English rather than his first language (Urdu), treating this as a breach of PD 32 para 18.1. The Judge also refused an adjournment to correct the defect, with the result that the Claimant had no admissible evidence and his claim failed.
On appeal, the High Court allowed the appeal, holding that the Circuit Judge had misinterpreted “own language” in PD 32. The High Court found that it does not mean a witness’s first or native language, but includes any language in which the witness is sufficiently fluent to give evidence, including under cross‑examination. Since the Claimant was competent in English and had given instructions in it, the statement should not have been excluded without first assessing his actual proficiency.
This took a significant amount of pressure off parties, as many witnesses were being compelled to write statements in their first language, even though many primarily used English. I had an experience where some witnesses said they stopped thinking and dreaming in their first language.
The Santiago endevour
In Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838, the Claimant, a Portuguese speaker with limited English, brought a personal injury claim which settled on the day of trial. An interpreter had been instructed to attend the trial (and costs had been incurred in preparing his Portuguese witness statement), and the trial Judge reluctantly refused to allow recovery of the interpreter’s fee, considering herself bound by Aldred v Cham [2019] EWCA Civ 1780, which had been understood to exclude such costs in fixed costs cases.
The Court of Appeal overturned that decision, holding that interpreter (and by implication translation) fees are recoverable as a disbursement under CPR 45.29I(2)(h) where reasonably incurred as a particular feature of the dispute. It rejected the narrow approach derived from Aldred, emphasising that the cost of interpretation is essential to enable a party or witness to participate fully and give their best evidence, and therefore falls within the proper scope of recoverable disbursements in fixed costs litigation.
Santiago was remitted to the County Court for assessment of the translation fees, which then became appealed (unsuccessfully) to the High Court, and the Defendant is currently seeking permission to appeal from the Court of Appeal:-
Tips for drafting non-english witness statements
Preparing a compliant witness statement for a non‑English speaking witness requires strict adherence to CPR PD 32 and a careful, structured process. The starting point is that the statement must be taken in the witness’s own language, not drafted in English and translated afterwards. In practice, this means the solicitor should obtain the evidence with the assistance of a suitably qualified interpreter, ensure the statement records how it was taken (e.g. via interpreter, in person or remotely), and produce a version written in the witness’s own language which accurately reflects their own words and evidence.
Once the foreign‑language statement is prepared, it must be signed by the witness and accompanied by a proper certified translation into English, with both versions filed at court. The translator must also certify the accuracy of the translation, and the statement of truth must appear in the witness’s own language.
Crucially, the article emphasises that the “old” approach (drafting in English and simply reading it back) is no longer acceptable, as it risks non‑compliance and potential exclusion of the evidence, as seen in cases like Correia. Proper preparation, therefore, requires building the statement correctly from the outset, ensuring authenticity, transparency of process, and compliance with the Practice Direction.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
