WHEN A WITNESS CANNOT SPEAK ENGLISH: INTERPRETING THE RULES: GUIDANCE FROM THE CASES

“For my part, I simply do not understand why Mr Lyampert, and those advising him, did not apply at the CMC in September 2016 for the witness statement of the oral evidence he intended to rely on at trial to be filed in Russian under CPR Part 23.2 and paragraph 19.13 of the Chancery Guide” (Miss Amanda Tipples QC in Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch))

“19.13 If a witness is not sufficiently fluent in English to give his or her evidence in English, the witness statement should be in the witness’s own language and a translation provided. If a witness is not fluent in English but can make himself or herself understood in broken English and can understand written English, the statement need not be in his or her own words provided that these matters are indicated in the statement itself. It must however be written so as to express as accurately as possible the substance of his or her evidence.” (The Chancery Guide).

GUIDANCE IN PRACTICE DIRECTION 32

23.2

Where the court has directed that a witness statement in a foreign language is to be filed:

(1) the party wishing to rely on it must –

(a) have it translated, and

(b) file the foreign language witness statement with the court, and

(2) the translator must make and file with the court an affidavit verifying the translation and exhibiting both the translation and a copy of the foreign language witness statement.

GUIDANCE IN THE CIVIL CASES

Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch)

Mr Lyampert gave evidence and he was the only witness in support of his case. Mr Lyampert’s first language is Russian. It is clear that he is capable of understanding English, but he is much more comfortable speaking in Russian and, at the PTR in May 2017, Mr Lyampert was given permission by HHJ Davis-White QC (sitting as a Judge of the Chancery Division) to give evidence and be cross-examined with the services of “an appropriately qualified interpreter”. However, before I turn to Mr Lyampert’s oral evidence at trial, I need to say something about Mr Lyampert’s witness statements.

Mr Lyampert served three witness statements. The first witness statement contained the evidence in support of Mr Lyampert’s case and was dated 9 March 2017. It was 38 pages long with 74 paragraphs. The second witness statement was dated 15 May 2017, and was 17 pages long with 38 paragraphs. This witness statement was filed in answer to the witness evidence served by and on behalf of Mr Frenkel.

Mr Lyampert’s first two witness statements were written entirely in English. They did not contain any indication that Mr Lyampert might not be sufficiently fluent in English to give his evidence in English, or indeed pay any regard to paragraph 19.13 of the Chancery Guide which provides that:

“If a witness is not sufficiently fluent in English to give his or her evidence in English, the witness statement should be in the witness’s own language and a translation provided. If a witness is not fluent in English but can make himself or herself understood in broken English and can understand written English, the statement need not be in his or her own words provided that these matters are indicated in the statement itself. It must however be written so as to express as accurately as possible the substance of his or her evidence.”

Mr Lyampert’s third witness statement, dated 19 May 2017, was filed for the purposes of the PTR and in answer to “the suggestion that I do not require the assistance of an interpreter when I give my oral evidence at trial”. This statement was again written in English and Mr Lyampert’s statement explained:

“I am capable, given sufficient time, of understanding written English and expressing myself. However, I struggle to follow and to understand oral conversations, especially if they involve complex matters. My spoken English is very poor. I also find it difficult to articulate myself in a clear and timely manner. This is well known to all parties in the present proceedings. For these reasons, I used an interpreter throughout the US proceedings. I have always communicated orally with my English legal advisors, O’Melveny & Myers, with the help of an interpreter. To clarify, I can generally make myself understood in broken English, and my previous witness statements have been written with the assistance of my legal advisors so as to express the substance of my evidence. I then had sufficient time to read, digest and understand the written statements… I did not think it necessary to address this point in my previous evidence as I thought this was known by all parties involved in these proceedings, and I have never understood it to be an issue until I saw Blake Morgan’s letter dated 17 May 2017”.

Mr Lyampert’s oral evidence was given through an interpreter. This, unfortunately, was not without incident. [There is then an explanation of how the interpreter’s conduct caused difficulties with the conduct of the case].

All of these witnesses signed witness statements in English. Many of their statements contained statements to the effect that the witness had some knowledge of English, that the witness had been interviewed by Italian-speaking lawyers who had drafted the statement in English based on his answers and that the witness considered that his knowledge of English was sufficient to allow him to give the statement in English, but might require the assistance of an interpreter to give evidence in court. A smaller number said that the statement had been translated into Italian for him (as I understand it, orally) before he signed it. In the event, all of these witnesses except Mr Crosetta, Mr Migeot and Mr Neira gave their evidence through interpreters. While I appreciate that many people can read English with greater proficiency than they can speak it, particularly in the context of cross-examination, it does not necessarily follow that it is appropriate for them to make witness statements in English, particularly in a highly technical case involving many points of detail such as this one. It was clear that at least one of the witnesses had not correctly understood part of his statement when he signed it, and I suspect that this problem may have been more widespread. In my judgment the correct course would have been for the witnesses other than Mr Crosetta, Mr Migeot and Mr Neira to make their statements in Italian, and for the statements then to have been translated in English.

GUIDANCE FROM THE FAMILY DIVISION

However the real point of this post is to look at comments that could bypass civil litigators since they come from the Family Division. This relates to the process of preparing the witness statements. In NN -v- ZZ(1)GA(2) IZ(3) [2013] EWHC 2261 (Fam) Peter Jackson J considered the question of witness statements in the virtually identically worded Practice Direction in the Family Procedure Rules. It is difficult to envisage different principles applying in civil proceedings.