Decision: The Court Cannot Compel Translators to Attend for Cross Examination

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By Helen Rutherford

http://www.bailii.org/ew/cases/EWHC/QB/2016/3004.html

Kimathi v Foreign & Commonwealth Office [2016] EWHC 3004 (QB)

This is a case which has popped up in the legal press a few times recently. It involves some 40,000 Claimants (25 test Claimants) bringing claims for assault and battery relation to detention in Kenya in the 1950s. On this occasion, it came before Mr Justice Stewart on the issue on whether translators can be compelled to attend court for cross examination.

Some of the Claimants had prepared witness evidence, which had been translated. They then gave live oral evidence with the benefit of an interpreter, who was not the same person as had translated the written documents.

The Defendant argued that they had a right to cross examine the translators. There had been clear issues with the quality of the translations and the translated documents, such as sections missing from the English version, discrepancies in the Part 18 responses etc.

The Defendant said that there were 11 translators they wished to cross examine, dealing with 2 translators a day, so a potential 6 day process.

The result was:

  • The CPR do not provide any specific right to cross examine any translator
  • Under the general case management powers the court could require cross examination of a translator but;
    • That is subject to the overriding objective
    • Doing so was not in accordance with the overriding objective in this case (due to it not being of much assistance, the amount of court time it would require and therefore the disproportionate allocation of court time and resources).

How does it apply to me?

There may be cases where the quality of the translation is called into question. It is not uncommon to see documents translated by a relative rather than an official translator. There may therefore be circumstances where the overriding objective would operate in favour of the translator being cross examined.

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