Drafting and translating witness statements on behalf of foreign clients in civil cases

The Civil Procedure Rules surrounding drafting and translating witness statements have never been clear and precise. During my career as a translator and a paralegal I have seen various professional opinions on what the process should look like if a claimant’s first language is not English. As I was actively involved in both of these activities, I have always studied every document on this matter that was made available to me as I needed some guidance and clarity. Unfortunately, the more I researched the subject, the more confused I became since every paper I read contained contradictory or inconsistent information. No one seemed certain that the process they adopted is actually CPR compliant. Lawyers often had serious concerns that the opposing party might use this grey area against them and make a successful application to strike out a claim – a nightmare that gave solicitors many sleepless nights. Over the years, in collaboration with legal professionals I have devised a difficult-to-challenge approach to drafting and translating witness statements. In this article I will present my understanding of what the process should look like from the procedural point of view and provide a few practical tips on how to make it more efficient.

First, let us focus on what certificate or wording is needed with a translation. In the past some people claimed that a short declaration by a translator was enough, some argued that it was necessary to use an affidavit, some even involved a notary public and others maintained that a translator’s witness statement (or a “declaration”) attaching both language versions was the only right way.  Those practitioners who thought that the last option was the most CPR compliant choice have used it for many years and in most cases it has served them well. And although at that point everyone seemed to know that according to the CPR a statement needed to be taken in witness’ own words (presumably in their own language), only a relatively small number of lawyers and judges took issue with the fact that they were often drafted in English first and then translated into a foreign language, which the translator openly admitted in their declaration.

On 6 April 2020 there was an update to Practice Direction 32 introducing a few changes, inter alia, witness statements now “…must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language…” (CPR, 18.1). They also must be accompanied by an English translation and the process by which the statement had been prepared and the date of the translation must also be stated. Although the changes did not seem ground-breaking, they did pose a few problems and questions.

The very first problem is connected with the words “…in their own language”. What does that mean? Presumably, it means “…in their mother tongue”. But what if the witness has lived in the UK for many years and they speak fluent English? What if they were born in England in a foreign family and they can class their two languages as “their own”? Most linguists would agree that it is possible to have multiple native languages. This grey area poses the first, very important question: “Does the foreign witness actually need translations?”. In my opinion, it is solicitors’ duty to establish how good their witness’ English is at the outset of the case and act on that knowledge. Although it is still at the discretion of the court to interpret the CPR and a particular case being dealt with, it seems to me that well-argued reasoning and the fact the witness is able to express themselves and understand what it being said during the trial are not likely to be criticised by the court.

Having decided that you will provide translations, you need to decide how a witness statement will be drafted and translated. Before 6 April 2020 the first version of a statement was often made in English. Whether it was prepared by a case handler or a paralegal speaking a foreign language or done via an interpreter, it was just more convenient. Such a statement was then translated into a foreign language and a client signed their language version. Because we now need to state the process of taking a statement and a translation date, it becomes a bit trickier. Let’s try to examine how the new approach to drafting and translating statements needs to be adjusted.

First, we need to think whether the CPR guidance stating that statements “…must in any event be drafted in their own language” again leaves any room for interpretation. Does that mean that the first version of a witness statement needs to be taken and written down in the witness’ native language (1)? Or, for example, a statement will still be CPR compliant if a witness gives their statement orally in their own language to a lawyer via an interpreter so that its first written version would be in English but it would then be translated back into the witness’ native language (2)? The first more strict approach seems safer but the second is more practical since a solicitor, who knows the case and their client best, has the chance to ask the witness the right questions, help them to cover whatever is necessary and formulate their evidence in the best possible way. Charging a translator, who does not have much legal expertise, with the task of drafting a complicated witness statement might be seen as a risky business. Ideally, a statement drafter would be both a lawyer (or at least an experienced paralegal) and a translator but this is hardly ever the case. All in all, it is for the lawyer to decide which path they want to follow and what risk they are ready to take. I know from experience that neglecting this important aspect of a claim and having statements translated / certified sloppily may lead to a sequence of very serious consequences. Anyway, in my opinion most lawyers would rather exercise the second option. The chances are that an opposing party would not take issue with the second approach if done correctly, i.e. sticking to a well-thought out plan of action. In any case, it boils down to the question of whether a judge decides that it is a breach and it is serious enough for the case to be struck out. Sometimes, when the argument of a CPR breach is deployed, it might still not be too late to rectify this procedural “error” and save the case. Lawyers need to juxtapose the possible risk with the potential benefits of one particular approach and take the most appropriate decision. So what is the best, most practical and safest way of putting the option 2 into action? Are there any practical steps that increase safety, make the whole process easier, cheaper and bring us closer to the CPR? I think there are. Let me share with you a plan and a few tips on how to improve the process of drafting and translating witness statements on behalf of foreign witnesses.

The first stage of the process is probably the most crucial and requires good tools, mutual understanding and close cooperation between the lawyer and the interpreter. When a face-to-face meeting is not possible, using a decent conferencing platform can make a real difference. One example is Google Meet platform which offers a few useful tools. One of them is screen sharing, which enables you to refer to any document on your PC and show it to the witness to comment. When it is difficult to explain the mechanism of an accident, you can draw it on your screen for everyone else to see. You can also record the whole conference to go back to it later on. These little things improve the whole statement taking process and can save time and money.

Another thing worth looking at is the interpreter’s involvement. Some situations, such as interpreting in court, require very faithful, almost word for word interpreting. Statement taking, however, is all about the effective exchange of information. Therefore, it could be beneficial for all involved if a skilful interpreter had the freedom to be slightly more involved in the whole process. Such actions by an interpreter as asking for clarification, repetition or elaboration should not be met with disapproval. Sometimes, in order to get to the bottom of what a witness means one needs to have a mini dialogue with them, which is then translated as a whole consistent mini story. This, again, saves time and allows a coherent sequence of events to be constructed. However, if a solicitor disagrees with such an approach and wants everything translated verbatim, it is their prerogative and they should discuss it with the interpreter in advance.

Last but not least, employ a translator whom you can trust and do not underestimate the contribution that they can make. When we provide translations, we first need to carefully examine the meaning of each word and sentence in order to translate it correctly. What this means is that we often pick up mistakes or inconsistencies in the source text. A conscientious translator will query them with you. Being receptive and not getting offended by this might again save you some trouble later on. It is best to use the same translator who did the interpreting as they were the channel who gathered and passed all information between the parties so they have the best knowledge of everyone has said.

To sum up, it is the case handler’s decision what approach to drafting and translating witness statements they adopt. It seems that although the Civil Procedure Rules have taken a step forwards in specifying this process, they are still lacking clear step-by-step guidance. I am certain that there will still be doubts and questions regarding this issue. Some translations and certificates will still be provided in a haphazard way and there will still be applications to strike out cases due to alleged CPR breaches. However, applying the tips I have set out above might be a good solution at this point.