The Price of Misunderstanding: The Wasted Costs of Multilingual Cases in the UK

The Price of Misunderstanding: The Wasted Costs of Multilingual Cases in the UK

The judgment Rainer Hughes Solicitors v Liverpool Victoria Insurance Company Ltd & Ors (Rev1) [2024] EWHC 585 (KB) provides crucial guidance for preparing for wasted costs hearings and is a further significant addition to the existing body of case law concerning witness statements for non-English speakers.

In May 2019, a road traffic accident led to a claim for injuries and hire charges of nearly £50,000 by a Turkish-speaking claimant. Despite initial admissions, the Defendant accused the Claimant and her daughter-in-law of fraud, leading to a counterclaim.

The Claimant’s first language was Turkish. The witness statement, drafted and signed in English without a Turkish version, claimed ignorance of the hire agreement’s cost and the term ‘impecuniosity.’ At pre-trial review, the Claimant's solicitors were ordered to clarify in writing that the Claimant’s witness statements were compliant with CPR Part 32 and that the Statements of Truth complied with CPR Part 22.

The pre-trial checklist stated an interpreter was requested for trial due to the Claimant’s limited English proficiency and health issues. The Claimant’s Counsel told the Judge that the Claimant was: “unable to read properly her witness statement or the pleadings, which were in English, as she was only proficient in Turkish”.

The Claimant’s inability to understand English documentation and failure to pay the trial fee resulted in the claim’s dismissal; and £25,000 judgment for the Defendant’s counterclaim was awarded, with costs pending assessment due to conduct potentially obstructing justice.

 

Wasted costs and Witness Statements

The Claimant’s solicitors were ordered to show cause for not being liable for costs due to issues with translating documents for a Turkish-speaking client. Despite claims that the Claimant understood English, the Defendant highlighted previous concerns about the need for translation. The Claimant’s solicitors had cited time constraints for not providing an initial Turkish statement and aimed to do so if a stay was granted.

The Claimant’s statement was served 11 months later, leading to a Wasted Costs Order by HHJ Monty KC on 25 July 2023. This totalled£16,500 for various failures, including not providing properly translated statements, for which the Judge found that “without properly translated statements, this was a disaster waiting to happen”.

The solicitors’ defence was deemed unsatisfactory, lacking relevant correspondence and evidence from involved fee-earners. The Judge cited negligence and a breach of duty to the Court, resulting in wasted costs. The solicitors’ conduct was criticized for not addressing the language issue and failing to provide evidence or relevant documents, leading to increased costs.

Within their appeal, the solicitors argued that the Judge did not properly consider proportionality, and that the wasted costs jurisdiction should be "clear and obvious", as per Harrison v Harrison.

They contended that the Judge’s discretion should not be interfered with and that the costs had already been incurred; however, the written defence of the application by the Claimant's solicitors, put forward by a senior partner of the firm, did not make it clear to the Court whether the partner had ever actually personally spoken with or heard the Claimant speak. This led the Judge to comment that “the absence of such evidence is in the nature of a deafening silence”.

The Judge’s decision was upheld, finding that there were violations of CPR Part 32 and PD 22, as well as a breach of the overriding objective, which requires the Court to handle cases fairly and efficiently by, amongst other, enforcing compliance with rules, directions, and orders.

 

Wasted Costs

-        A Judge’s discretion in considering proportionality when allowing a wasted costs application to proceed remains wide, as per Mr Justice Martin Spencer’s comment “No hard and fast rule can be laid down because the circumstances in which a wasted costs application may be made are infinitely varied”.

-        Respondent solicitors who unreasonably obstruct a wasted costs application (e.g., by defending the indefensible) may not rely on the extra costs generated to argue against proportionality (CPR 44.5(3) considers “additional work generated by the conduct of the paying party” as a metric for assessing proportionality)

-        Any argument that the application should be dismissed on proportionality grounds must be raised at the earliest possible stage. Waiting until the full hearing of the application is likely too late, as costs would already be incurred.

-         Where a Judge decides to make a “show cause” order, they should consider giving a direction that the applicant identify matters referred to in PD 46, paragraph 5.9, being: a) what the legal representative is alleged to have done or failed to do and b) the costs that the legal representative may be ordered to pay or which are sought against the legal representative, as early as possible.

 

Witness statements

-        The English proficiency of a witness is crucial.

-        It does not necessarily matter what the witness’s “own language” or “mother tongue” is; witnesses who are bi-lingual or otherwise sufficiently fluent in English can give evidence in English. (Afzal -v- UK Insurance Ltd [2023] EWHC 1730) / a witness’s own language includes any language in which the witness is sufficiently fluent to give oral evidence (including under cross-examination) (Business and Property Court Guide)

-        The ability to be cross-examined in English is the obvious litmus test (is the witness’ English good enough to allow them to give their best evidence, in a situation which the witness may find stressful?)

-        A witness who professes the ability to read and understand an English statement, but who has an interpreter to assist at trial, is potentially open to challenge.

 

Pertinent CPR Provisions

CPR Part 22 and Practice Direction (PD) 22 deals with statements of truth –

·        R.22.1(1): The following documents must be verified by a statement of truth … (c) a witness statement.

·        R.22.3: If the maker of a witness statement fails to verify the witness statement by a statement of truth the court may direct that it shall not be admissible as evidence.

·        PD 22, 2.4. The statement of truth verifying a witness statement must be in the witness’s own language.

CPR Part 32 deals with witness statements –

·        R.32.4(1): A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

·        R.32.8: A witness statement must comply with the requirements set out in Practice Direction 32.

The Practice Direction to part 32 (“PD32”) sets out the requirements for the preparation of witness statements:

·        PD32: 18.1. 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.

·        PD32: 19.1. A witness statement should – (8) be drafted in the witness’s own language.

·        PD32: 20.1. A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence it must include a statement by the intended witness in their own language that they believe the facts in it are true.

·        PD32: 23.2. Where a witness statement is in a foreign language the party wishing to rely on it must (i) have it translated; and (ii) file the foreign language witness statement with the court; […]

Note that according to PD32: 25.1., where an affidavit, witness statement, or exhibit to either an affidavit or a witness statement does not comply with Part 32 or the Practice Direction in relation to its form, the Court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.

Please see also provisions in the King’s Bench GuideChancery Guide and the Business and Property Courts Guide for additional information.

 

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