Background
In the matter of Bahia v Sidhu and another, the High Court presided over a partnership dispute where there was a question raised as to which language witness statements should have been prepared in. A witness, Mr Bahia, appeared not to be fluent in English, which resulted in submissions that there had been a breach of the relevant practice directions and failure to follow the Chancery Guide on the preparation of witness statements.
The relevant practice directions
PD 32.18.1 to CPR 32 provides as follows:
“The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language”.
Additionally, PD 32.19.1(8) provides that a witness statement should be “drafted in the witness’s own language”.
Furthermore, PD 32.20.1 provides that a witness statement must contain a “statement by the intended witness in their own language that they believe the facts in it are true”.
There is also a requirement to have any witness statement in a foreign language translated and filed at court with the foreign language witness statement. When filing both the translated and foreign language witness statement, the translator must sign the original statement and certify that the translation is accurate. Attention is drawn to PD 32.23.2 in relation to these steps.
Should a matter be proceeding in the Business and Property Courts, then a party also needs to consider PD 57AC, which reinforces the content of PD 32.
PD 57AC.3.3 specifically states that the witness statement must be in the “witness’s own language” and this “includes any language in which the witness is sufficiently fluent to give oral evidence (including under cross-examination) if required, and is not limited to a witness’s first or native language”.
The Chancery Guide
Paragraph 19.13 of the Guide provides as follows:
“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.”
Language of the statements
Though the case concerned the dissolution of a partnership, the judgment contains an assessment of which language a statement should be prepared in, where a witness speaks a mixture of two languages.
Preparation of the statements for Mr Bahia
Mr Bahia’s two statements were prepared in English. However, in his second statement, he acknowledged that English was not his first language, but that he had an understanding of it. He further confirmed that he usually communicates via a mixture of Punjabi and English. It came to light that a Punjabi version of the second statement was prepared, but not signed or filed at Court. Mr Bahia had struggled to understand the second version of his statement in Punjabi, as he stated that it contained words that were hard for him to understand.
Opponents’ criticisms of the statements
The decision to prepare his statements in English drew criticism from the opponents, with submissions that the relevant practice directions had been breached for the failure of his statements to be in his own language and own words. The opponents’ counsel asked for no weight to be assigned to Mr Bahia’s statements.
Court’s findings on language capabilities of Mr Bahia
The court found Mr Bahia hesitant to speak in English during the course of his oral evidence. The assessment of the court was that he could speak and understand simple English, but on getting stuck in English, he would switch to Punjabi. Further, the court noted that he required an interpreter for the whole of his evidence and requested sections of his second statement to be translated to Punjabi before he was able to answer questions asked about it. The court was concerned that the statement prepared in English was incapable of being properly understood by Mr Bahia, nor did it accurately reflect the evidence he could provide. The court was also concerned that the statements were not prepared in Mr Bahia’s own words.
Counter arguments to opponents’ submissions
In countering the submissions that the relevant practice directions had been breached, Mr Bahia’s counsel argued that the guidance on preparing a statement is a minefield and difficult for a solicitor to utilise where a witness speaks a mixture of two languages. The submissions honed in on PD 32.18.1, which merely requires the witness’s own language to be used “if practicable”. It was argued that where a witness uses a mixture of two languages to communicate, then it was practicable to prepare the statements in English. Further, counsel made submissions that when tracing back the roots of the Punjabi language, it can be noted that it was first developed in the 12th century as a basic language, and it has no exact words for English concepts that arise from the partnership dispute.
Court’s findings
The court found that there was no evidence that Mr Bahia was led during the preparation of his statements. It was further noted that the relevant rules and practices directions could be clearer to explain how a witness statement must be prepared where the witness speaks a mixture of two languages. The court suspected that the statements might have been overly “lawyered”, but on the whole did not think these features resulted in a finding that no weight should be given to Mr Bahia’s statements (paragraph 36, judgment).
It was also noted that Mr Bahia was a straightforward witness, who was doing his best to answer lengthy cross examination in English, Punjabi or a mixture of the two. Further, it was noted that he did not seek to advocate his case nor argue with the opponents’ counsel (paragraph 38, judgment).
Guidance for practitioners
There was a degree of leniency awarded to the preparation of Mr Bahia’s statements by the court. The court considered that the practice direction is inadequate for dealing with a witness who speaks in a mixture of two languages and recognised the difficulties that practitioners will face in preparing statements to comply with the practice directions in their current form.
Where a witness speaks a mixture of languages, it would appear sensible to consider how their statement should be drafted. Factors to be taken into account include:
- How well the witness understands English.
- Is the witness able to provide instructions in English?
- How detailed is the vocabulary of their foreign language: will it allow them to suitably address all the points needed to factually present their case?
- How practicable is it to prepare the statement in the foreign language?
Addressing these questions may assist with forming a view on which language to use, as they appear to have been key considerations for the court in this matter.
It would appear that this case would not apply to a witness who is incapable of speaking English, and the strict rules set out in the practice directions should be followed when preparing a statement in such circumstances.
