Foreign language witness statements in the Business Courts

On 6th April 2021, new rules concerning how witness statements are drafted and used in the Business and Property Courts (BPC) came into force. The rules significantly impact the preparation of witness statements and, as a result, the preparation of statements when the witness does not have English as their own language and requires translation. 

This article looks at witness statements in the Business and Property Courts and how Practice Direction 57AC has impacted these. 

Witness statements in the Business and Property courts 

Witness statements are a relatively new innovation, only coming into play in the 1990s. Before the introduction of drafted witness statements, witnesses would give all of their evidence in civil court trials from the witness box. If a witness did not have a sufficient command of English, they would have the assistance of an interpreter. In general, this was regarded as the best way for witnesses to give evidence as lawyers were able to question witnesses and their account of events. However, such questioning took up a significant amount of court time - even more so where an interpreter was involved. As a result, the decision was taken to allow lawyers to draft primary evidence in the form of a witness statement during the pre-trial stage. The hope was that this struck the balance between saving the courts' time whilst allowing lawyers to cross-examine the evidence at trial. 

Why have changes to witness statements been introduced? 

There were concerns that moving to the system of witness statements would allow lawyers to draft statements that showed their case in the most favourable light. However, in commercial litigation cases, lawyers prepared witness statements that drew attention to the most important parts of the case, including crucial documents to which witnesses added commentary and additional context to such documents. The effect was that this directed the judge through all of the important documents, but it became challenging for judges to decipher which comments were genuine recollections of witnesses. 

The issue was that some parts were narration and context added by solicitors, which becomes even more complex when such witness statements are translated.

What changes did Practice Direction 57AC introduce? 

Practice Direction 57AC ensures that lawyers prepare witness statements that are as similar as possible to the evidence the witness would have given in a live court setting and do not make many references to any ancillary documents.  In the witness statement, lawyers must also make it clear where a witness’s recollection was of their own accord or whether their lawyer prompted it. They must also set out how strong or weak the recollection was. Of course, this can be challenging as it can be difficult for even the witness to understand how strong a recollection is. 

The practice direction brings the UK system closer to that of civil law systems, which means that practitioners from civil law jurisdictions are more at ease with the witness evidence stage in the UK Business and Property Courts. 

Foreign language witness statements in the Business and Property Courts 

All trial witness statements in the business and property courts must also comply with Practice Direction 32 paragraphs 18.1 and 18.2. The witness statement must be made in the witness's own words and drafted in the witness's own language. For the purpose of the practice direction, a witness’s own language is any language in which the witness is sufficiently fluent enough to provide oral evidence. It is not a requirement that this is the witness's native or first language, but they must also be able to give evidence in this language under cross-examination. 

Practice Direction 32 was introduced to remedy issues where foreign witnesses cannot express themselves as comprehensively in English as they could in their own language. Such a language barrier may have an effect on the outcome of their case, so a legal translator must be used and must provide an accurate translation of the witness’s statement in their own words. 

IMD Translation - Foreign Language Witness Statement Translations

At IMD Translation, we understand how important accurate translation is to your firm, and to your clients. Inaccurate translation of a foreign language witness statement or missing a court deadline can have a significant impact on the outcome of a case. If you have a need, get in touch with our team now at info@imdtranslation.co.uk or on 03309121530