Can You Handle the Truth? New Rules Regarding Statements of Truth and Foreign-Language Witness Statements in Civil Proceedings
On 6 April 2020, changes to Practice Directions 22 and 32 will come into force and usher in new rules concerning: (i) statements of truth; and (ii) witness statements given by a witness who speaks a foreign language.
In essence, the changes to Practice Direction 22 introduce new wording for statements of truth, which confirms that the author is aware that proceedings for contempt of court can be brought where statements are made without an honest belief in their truth.
The changes to Practice Direction 32 provide greater certainty on the manner in which witness statements given by individuals who speak a foreign language should be prepared and put before the court. They are likely to lead to an increase in statements being produced in a non-English speaker’s native language to ensure that it is in the witness’s own words and that the witness fully understands the evidence they are giving.
Amendments to Practice Direction 22
The changes to Practice Direction 22 will require additional language to be included for statements of truth verifying a statement of case, witness statement, a response, an application notice or a notice of objections.
The form of the statement of truth verifying a statement of case, a response, an application notice or a notice of objections will be as follows (with the new wording highlighted in bold):
“[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”
The form of the statement of truth verifying a witness statement will contain the same wording set out in bold above, after the words: “I believe that the facts stated in this witness statement are true”.
The amended rules also require that statements of truth verifying a witness statement should be “provided in the language of the witness statement”. Further:
a statement of truth will need to be written in the witness’s own language and be “dated with the date on which it was signed”; and
where a legal representative signs a client’s statement of truth, this signature will be taken by the court to mean that the legal representative has explained to the client “through an interpreter where necessary” that, in signing the statement of truth, the legal representative is confirming the client’s belief that the facts stated in the document are true.
Amendments to Practice Direction 32
Changes are also being made to the requirements for witness evidence from a witness who speaks a foreign language. In summary, the amendments to Practice Direction 32 mean that:
in addition to being in the witness’s own words, a witness statement must be drafted in their own language;
the witness statement must provide details of the process by which it has been prepared (e.g. in a face-to-face meeting or by telephone), including whether an interpreter was used;
the party wishing to rely upon a foreign-language witness statement must have the statement translated into English; in addition, both the foreign-language statement and English-language statement should be filed at court. The translator must also sign the translation to confirm that it is accurate; and
the witness statement should include the date of translation in the top right hand corner.
The amendments to Practice Direction 22 bulk up the requirements for statements of truth and aim to ensure that the court can be assured of their validity. The additional wording, by which an individual expressly acknowledges that they may be subject to contempt of court proceedings, does not create anything new in the law. Instead, it merely reflects the sanction that already exists.
In addition, it is possible that the changes may also lay the groundwork for more frequent sanction by the court in obvious cases, and make it easier for sanctions to be imposed. Litigants should therefore be aware of the increased risk of strategic complaints and satellite proceedings where parties, or their representatives, appear to have been less than vigilant in recalling, analysing or setting out the ‘facts’ they rely upon.
Certain of the changes to Practice Direction 22 should be read in conjunction with those to Practice Direction 32 concerning foreign-language witness statements, as there are areas of overlap between the two. In particular, Practice Direction 22 will now expressly require that a statement of truth verifying a witness statement must be given in the witness’s own language.
The more substantive changes to foreign-language witness statements brought in by the amendments to Practice Direction 32 provide further clarity over, and also extend, the existing procedural framework. They codify the approach and observations of judges in previous cases such as Re Phoneer
In Re Phoneer, HHJ Kaye heard evidence given by two individuals in Cantonese through an interpreter. However, both of their original witness statements were in English, not Cantonese. HHJ Kaye noted that one of the individuals had some understanding of English and could read his statement in the original English, but the other individual’s witness statement was translated to him by his English-speaking secretary prior to his signing it. HHJ Kaye deemed this “unsatisfactory and capable of being unfair to the other side since, faced with statements in English, the expectation—unless instructed to the contrary by one's own clients of course—is that the maker of the statement speaks and understands English. It also potentially causes the court some difficulty as to the reliability of the English, particularly where agreements are being alleged or denied on one side or the other”.
He then went on to note that “a witness statement must, if practicable, be in the witness's own words…The obvious consequence is that, if the witness does not speak English, the witness statement will be in that person's own language, which must then be translated and the translation filed and verified in accordance with para 23”.
Similarly, in Force India Formula One Team v 1 Malaysia Racing Team Sdn Bhd and others, Arnold J heard evidence from various individuals in Italian through an interpreter. However, their witness statements were all in English and had been procured by lawyers, who had interviewed the witnesses in Italian and then produced their statements in English or who had drafted the witness statements in English and produced an Italian translation for the witness to consider. Arnold J observed that:
“[w]hile 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.”
Accordingly, the new rules reflect these observations, and especially those of HHJ Kaye, and bring greater certainty as to how a witness statement should be taken, and produced for the court, in circumstances where the witness is not adequately conversant in English.