Trial highlights the question of witness evidence in a foreign language
Published on 25th Oct 2023
What to do if your opponent is using interpreters as a tactical weapon
The Civil Procedure Rules make it clear that a witness statement must be drafted in the witness's own language, but a witness who is sufficiently fluent in English as well as a foreign language can choose to give evidence in English.
Alam v Alam
But what if, as was alleged to be the case by both sides in the recent decision of Alam v Alam, witnesses are able to give evidence in English but choose to give evidence in another language in which they are also fluent, allegedly merely to disrupt the flow of cross-examination and to gain more time to answer difficult questions?
Both parties stopped short of asking for these witnesses' evidence to be excluded, but they did argue that their credibility had been diminished.
The judge noted that it would be an abuse of process, and he could have excluded evidence, if an interpreter had been used for no proper reason at all. However, that jurisdiction was not to be exercised lightly. Here, although it was conceivable that they had decided to use an interpreter for narrow tactical reasons, there was also no doubt that they wanted an interpreter because of the technical nature of some of the language and because they were not confident they could understand (or convey) the precise meaning of some words in English. The overall context of the case (namely, the importance and overall expense of the trial and the potential value of the claim) was also relevant here.
In the end, the judge said that the only issue was likely to be in relation to costs, since the use of interpreters had extended the length and expense of the trial and this may not have been reasonable and proportionate.
Afzal v UK Insurance
A different issue arose in Afzal v UK Insurance Ltd: at first instance, the judge held that a witness statement must be in the language in which the witness is most fluent (notwithstanding that their English may be good enough to give the statement in English). The appeal from that decision was then allowed.
Judge Evans found (in agreement with court guides) that a witness can give evidence in any language "in which the witness is sufficiently fluent to give oral evidence". As the judge put it: "My attention was particularly drawn to the fact that there may be millions of people in England and Wales who are sufficiently fluent in English but have a different mother tongue or first language. There may be repercussions for access to justice, and indeed other considerations, in the event that they were required, notwithstanding their sufficiency in English, to provide a witness statement in their mother tongue".
