STATEMENTS OF TRUTH, TRANSLATION AND WITNESSES WITH POOR ENGLISH

mark_henley_ By Mark Henley

  • The CPR includes surprisingly demanding requirements, and draconian sanctions, in relation to Statements of Truth from witnesses whose English is so poor that they cannot read documents in English.
  • Here is a helpful summary of the rules, and what, in practice, you need to do to comply with them.

The Rules

  • Provision in the CPR for people whose English is poor signing statements of truth is limited to Paragraph 3A of the Practice Direction to CPR Part 22, which states that:

 

“22 P.D. 3A

3 A.1  Where a document containing a statement of truth is to be signed by a person who is unable to read or sign a document, it must contain a certificate made by an authorised person.

3 A.2  An authorised person is a person able to administer oaths and take affidavits but need not be independent of the parties or their representatives.

3 A.3  The authorised person must certify –

  1. That the document has been read to the person signing it;
  2. That the person appeared to understand it and approved its content as accurate;
  3. That the declaration of truth has been read to that person;
  4. That that person appeared to understand the declaration and the consequences of the making of false declaration; and
  5. That the person signed or made his make in the presence of the authorised person.

3 A.4  The form of the certificate is set out at annex 1 to this Practice Direction.

Annex

Certificate to be used where a person is unable to read or sign a document to be verified by a statement of truth

I certify that I [name and address of authorised person] have read over the content of this document and the declaration of truth the person signing the document [if exhibits, add “and explained the nature and effect of the exhibits referred to in it”] who appeared to understand (a) the document and approved its contents as accurate and (b) the declaration of truth and the consequences of making a false declaration, and made his mark in my presence.”

  • Documents which must contain a statement of truth are defined by CPR Part 22.1 – (1), and include a statement of case and a witness statement.
  • A statement of case is defined by CPR Part 2 at 2.3 (1) as “Claim Form, Particulars of Claim when these are not included in a Claim Form, Defence, Part 20 Claim or Reply to Defence; and includes any further information given in relation to them voluntarily or by court order under rule 18.1”
  • For a witness statement, if paragraph 3A of the Practice Direction to CPR Part 22 is not complied with then the maker of the witness statement will have failed to verify it with a statement of truth: and CPR 22, at 22.3, provides that, “If the maker of a witness statement fails to verify the witness statement by a statement of truth the court may direct that it shall not be admissible as evidence”.
  • In addition, a minority of courts, including Bradford County Court, routinely use the standard form of directions for all orders relating to witness statements which include specific provision that for witnesses with poor English the witness must have a proper signed translation statement, and that in the absence of such a statement the party seeking to rely on the witness statement be de-barred from doing so.
  • For a statement of case which does not have a valid statement of truth, complying with paragraph 3 A, then paragraph 4 of the Practice Direction to CPR Part 22 provides that:

 

“Consequences of failure to verify

4.1     If a statement of case is not verified by a statement of truth the statement of case will remain effective until it is struck out but a party may not rely on the contents of the statement of case as evidence until it has been verified by a statement of truth.

4.2     Any party may apply to the court for an order that unless within such a period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.

4.3     The usual order for the costs of an application referred to in paragraph 4.2 will be that the costs be paid by the party who had failed to verify in any event.”

What to do in Practice

  • In practice, solicitors wanting to rely on evidence from witnesses with poor English must be careful to attach the correct declarations to any statements of truth signed by those witnesses.
  • If this is not done, but permission is sought at trial to use a translator for oral evidence, the other side can apply to the court to direct that the original witness statement is not verified by a statement of truth and is inadmissible as evidence, pursuant to CPR 22.3, above, which will usually prevent any use being made of that witnesses evidence.
  • Similarly, if a Claimant or Defendant in fact unable to read English has purported to sign a statement of case without a proper translation certificate then the other side can apply to strike it out, pursuant to paragraph 4 of the Practice Direction to Part 22, above.
  • Solicitors should therefore identify early whether the English of a party or a witness is sufficiently good to allow them to read the documents for which they are being asked to sign the statement of truth.
  • If this is not the case then certificates pursuant to paragraph 3A of the Practice Direction to CPR Part 22, above, must be included from the outset with all documents for which they are signing the statement of truth.
  • The statement of truth on a statement of claim can potentially be signed by a solicitor (with proper authorisation): but the statement of truth on a witness statement will require a Certificate pursuant to paragraph 3A above in any event.
  • The wording of paragraph 3A is particularly demanding, in the following respects:
  1. The person signing the certificate must be physically present to watch the person signing the statement of truth make their signature or mark: so that this has to be done face to face.
  2. The specific wording in the Annex must be followed.
  3. The person signing the certificate must be an “authorised person”, able to administer oaths and take affidavits. This includes qualified solicitors and Legal Executives, and includes professional translators authorised by the Law Society to administer oaths and take affidavits: but it does not include unqualified paralegals and it does not include interpreters who are not authorised to administer oaths and take affidavits.
  • Although paragraph 3A does not specifically require this, it is therefore good practice to set out below the certificate the fact that the person signing it is the person able to administer oaths and take affidavits, for example by listing their qualifications as a solicitor or as a Legal Executive next to the certificate.
  • The effects of this last point is also that the certificate in the form stated in the Annex is sufficient in itself where the person signing it is either a translator authorised by the Law Society to administer oaths and take affidavits, or is a Solicitor or Legal Executive able to speak the first language of the person signing the statement of truth.
  • The wording of paragraph 3A, however, poses a problem where a solicitors firm does not have available either a translator authorised to administer oaths or a qualified Solicitor or Legal Executive who is able to speak the language of the person signing the statement of truth.
  • Although the rules do not make any specific recommendations as to what to do under these circumstances, I would suggest that under the circumstances there be two further statements below the statement of truth (signed by the person making this statement).
  • First, a statement from the person who translated the document confirming that they have translated the written statement (in English) into the language (which should be specified) of the person signing the statement of truth (who should be named) accurately, and have done so in the presence of the person signing the certificate, below.
  • Second, the following (altered) version of the certificate in the Annex to paragraph 3A:

“I certify that I [name and address of authorised person] have been present while a translator has correctly translated the contents of this document and the declaration of truth to the person signing the document [if there are exhibits, add, “and explained the nature and effect of the exhibits referred in it”] who appeared to understand (a) the document and approved its contents as accurate and (b) the declaration of truth and the consequences of making a false deceleration, and made his mark in my presence.

 

  • The potential problems of failing to produce a proper translation certificate are illustrated by the case of Mohamad v Bay [2014] L.T.L. 11 September 2014 in which, in the County Court at Doncaster, District Judge Thompson refused a Claimant permission to rely on a witness statement for which the interpreters declaration failed to comply with CPR PD 22.3A, and in particular failed to identify whether the interpreter was a person authorised to administer oaths and take affidavits: which (together with other defects in the preparation in the court bundle) had the effect that the claim was struck out.
  • Although the test of whether a certificate pursuant to paragraph 3A is needed therefore depends on whether the person signing the statement of truth can read the statement of English (and not on the general proficiency to speak and understand English, which determines whether an interpreter in court is necessary), it is therefore important to make an early assessment of whether the English of a party or of a witness is sufficiently poor that such a certificate is necessary, and to comply carefully with the above requirements for translation, in order to avoid the risk of permission being refused to rely on any evidence at trial.

 

 

 

 

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