Clients Joginder Singh and Tarsem Singh had brought claims against Rajinder Kalia, the founder and priest of a Coventry temple dedicated to a Hindu deity, seeking restitution and equitable compensation for financial outlays and loan agreements with Kalia’s business. In addition, they also claimed compensation for travel costs to India and unpaid work. Kalia denied all claims, asserting that any unpaid work was voluntary ‘seva’ (a devotional duty of unpaid work made to the deity).

However, on 4 July, during the High Court proceedings, Joginder Singh’s testimony revealed a significant issue. As he was cross-examined by Sarah Crowther KC, it became apparent that Singh could not speak English! His witness statement, affirmed in English, was rendered meaningless as he required an interpreter to communicate in his native Punjabi.

Mr Justice Martin Spencer, delivering judgment in Rashpal Samrai & Ors v Rajinder Kalia, stated: “In the course of Mr Singh’s evidence it became clear that, although his witness statement is in English and he affirmed its accuracy, he cannot in fact speak English at all. His only language is Punjabi. Indeed, he said through an interpreter that he cannot read or write at all.”

Mrs Singh was in a similar position. The judge speculated, and emphasised this was just speculation, that the solicitors may have engaged with the claimants through their daughter, remarking, “If that is the case it seems to me at first blush that the solicitors have not done their duty appropriately in this case in that they have not engaged directly with the claimants, they have not established that which ought to have been established well in advance of this trial in relation to their ability to read and speak English, and this should have been raised at the pre-trial review so that appropriate steps could be taken.”

Justice Spencer further criticised the situation, stating, “For this to have arisen in the course of cross-examination of Mr Singh by Ms Crowther is wholly unacceptable and, I agree, amounts to a virtual contempt of the proceedings of this court. In those circumstances, it would be quite wrong for me to exercise my discretion to give the claimants any sort of indulgence, given also the wasted costs which that would entail.”

As a result, the claims brought by Joginder Singh and Tarsem Singh were struck out.

The Importance of Accurate Interpreting and Translation Services

This case underscores the vital role of accurate interpreting and translation services in the legal field.

Miscommunications and misunderstandings can lead to severe consequences, including the dismissal of legitimate claims and unnecessary legal costs.

Solicitors must ensure that their clients fully understand and can participate in legal proceedings, regardless of language barriers.

At IMD Translation, we specialise in providing precise and reliable interpreting and translation services across all legal practice areas, including CPR compliant witness statements.

Our expertise ensures that language is never a barrier to justice. By partnering with us, solicitors can safeguard their clients’ interests and uphold the integrity of legal proceedings.

Because in Legal Matters, Language Matters.

AI-ENHANCED TRANSLATION ACCURACY:

One of the primary challenges in multilingual litigation lies in the need for precise translation. Legal documents, often dense with specialised terminology and nuanced expressions, require more than mere linguistic conversion. Whilst human translation by experienced and qualified professionals offers the greatest degree of accuracy and reliability, in this brave new AI powered world there may be methods and tools that can help not only the translation process, but also case handling and review too. AI-powered translation tools can potentially help linguists ensure a level of accuracy in their translations. This has already been done to an extent in years past through use of CAT tools (Computer Assisted Translation tools), TMs (Translation Memories), and glossaries; however, by employing advanced machine learning algorithms and vast databases of legal terminology, AI systems can continually learn and improve, thereby reducing the time spend by linguists on updating and maintaining their CAT tools, TMs, glossaries etc, helping them to further reduce margin for errors and improve adaption to the specific linguistic contexts of different legal systems.

EFFICIENCY IN DOCUMENT HANDLING AND REVIEW

AI’s impact extends beyond translation, offering significant enhancements in the management and review of legal documents. In multilingual litigation, where thousands of documents may need to be processed, AI-powered document review tools can swiftly shift through vast quantities of data to identify relevant material. This not only speeds up the litigation process but also ensures that critical information is not overlooked. Moreover, AI can handle multiple languages simultaneously, a feat that would require considerable time and manpower if done manually.

A SOLICITORS AI TOOLBOX

ChatGTP, Bard, and Copilot may be fast becoming household names; however, there are additional AI powered tools out there that may help a solicitor manage their case, especially in multilingual litigation. Below we have collated a few examples:

Relativity’s Text Analytics

Relativity provides AI-powered text analytics for document management, specifically useful in legal reviews. Its features include language identification, which automatically detects and classifies documents based on the language they’re written in. This is particularly useful in international litigation involving multilingual document sets. Additionally, relativity employs machine learning models to prioritise documents that are most likely relevant to the case, enabling solicitors to focus their review efforts more efficiently, and to better manage translation time and cost by ensuring only relevant documents are prioritised.

Luminance’s Legal Inference Transformation Engine (LITE)

Luminance uses AI to enhance document review in legal settings, including due diligence and compliance checks. It purports to read and understand documents in any language and identifies legal concepts rather than merely matching keywords, allowing it to adapt to different legal systems and terminologies, speeding up drafting and revision and therefore making it a useful tool in multinational litigation.

Lex Machina is an AI tool that revolutionises how lawyers handle case law and litigation strategy. It provides analytics on judges, lawyers, parties, and the outcomes of similar cases, which can be invaluable in preparing for multilingual litigation. By processing historical data, Lex Machina can predict trends and outcomes, helping lawyers make informed decisions. Although primarily an analytics tool, its ability to process and analyse data in multiple languages makes it a critical asset in international legal practice.

ROSS Intelligence is another AI application that supports legal research across different languages. By using natural language processing, ROSS is a legal research tool that uses simple English to find answers in a large database of statutes, case law, and secondary sources. For multilingual cases, ROSS helps identify key legal precedents and related documents that may be spread across various jurisdictions and languages.

CHALLENGES AND ETHICAL CONSIDERATIONS

Despite its advantages, the integration of AI in multilingual litigation is not without challenges. The reliability of AI translations can still vary, particularly with languages that have less extensive training data available or a larger distance between the language pairs. Moreover, the potential for AI to misinterpret nuanced legal arguments or cultural nuances remains a significant concern – we have all heard of AI ‘hallucinations’. These limitations necessitate a careful blend of human oversight and AI capabilities, where legal professionals must verify AI outputs and ensure they meet the rigorous standards required in legal contexts.

Additionally, ethical considerations such as data privacy, security, and the transparency of AI decision-making processes and bias must be addressed. As AI systems handle sensitive legal data, ensuring the confidentiality and integrity of this information is paramount.

Conclusion

The role of AI in multilingual litigation is both transformative and expanding. As technology advances, AI’s capacity to help handle the linguistic and procedural complexities of international legal disputes will only become more refined. Similar will be true for linguists, adapting new technology to improve and increase their output. For legal practitioners, embracing AI tools offers a strategic advantage, facilitating potentially more efficient and accurate legal proceedings. However, the successful integration of AI in both the legal and translation fields will depend on continuous improvements in technology, ethical handling of data, and vigilant oversight by legal and language professionals.

The use of AI in multilingual litigation not only reflects the evolution of legal practices but also signifies a shift towards a more interconnected and technologically adept global legal landscape. As such, the ongoing development and ethical implementation of AI technologies will be crucial in shaping the future of international law and justice.

Key Provisions:

Local Law Compliance: Service of documents must adhere to the legal requirements of the destination country.

Central Authority: Each member state has a Central Authority, like the Royal Courts of Justice in England and Wales, which facilitates document service, bypassing the need for letters rogatory.

Language Precision: Documents must meet the linguistic requirements of the jurisdiction in question: for instance, in England and Wales they must be in English; if elsewhere they should be translated into the language of that jurisdiction.

Efficiency vs. Tradition: The Convention supersedes traditional methods involving letters rogatory and formal requests to foreign courts, that often encounter diplomatic delays. Instead, it establishes a direct transmission route through the Central Authority, significantly accelerating the process.

While the Convention promotes efficiency, member states can impose specific conditions. In England and Wales, for example, a British process server is not deemed a “competent person” for service under Article 10 of the Convention. The UK’s preference, clarified in 2003, is for direct service via a solicitor within its jurisdiction, though the precise methods remain undefined.

Foreign Process Section

Serving English Court proceedings internationally may necessitate court permission, especially if the contract involves an exclusive jurisdiction clause. To avoid disputes over service validity, it is prudent to seek permission concurrently with court filing.

The main method of service in The Convention is that requests for service coming from one contracting state are transmitted to the Central Authority of the state in which service is to be effected. Therefore, service should be arranged by providing the documents to be served to the Foreign Process Section at the High Court, who will then send the documents to the Central Authority in the country state where the defendant is to be served. While alternative methods do exist, they are subject to objections by some contracting states.

Remember, when serving legal documents abroad under The Hague Service Convention, the specific requirements depend on the country where the defendant is to be served. Once the Foreign Process Section has gathered all necessary documents for service, they will transmit these papers to the Central Authority in the relevant country and the Central Authority in that jurisdiction will then handle the actual service process. After successful service, they will provide evidence of service to the Foreign Process Section, which can be subsequently filed with the court as needed.

When serving documents out of jurisdiction accurate translation is critical. For expert assistance, contact IMD Translation today at info@imdtranslation.co.uk or on 03309121530

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 Guide, Chancery Guide and the Business and Property Courts Guide for additional information.

Need a Witness Statement Translation?

Look no further than IMD Translation! Witness Statements are a speciality – get in touch with our team to discuss your needs at info@imdtranslation.co.uk or 03309121530.

As such, in the increasingly interconnected global legal landscape, with legal matters more often transcending geographical boundaries, international litigation has become more common.

The importance of accurate and effective legal translation in this regard cannot be overstated. The precise interpretation of legal documents, evidence, and proceedings plays a pivotal role in ensuring fairness, equity, and the ultimate pursuit of justice.

Why does it matter?

Our planet is a pretty diverse place. Lots of people. Lots of languages. Lots of cultures.

Unsurprisingly, there are therefore lots of countries, lots of jurisdictions, lots of laws and regulations, lots of history.

Translation (and interpreting) is often called the second oldest profession. Since time immemorial people have wanted (or needed) to talk with their neighbours. The same is true today. If you’re on your holidays, you’ll likely want to be able to order a drink or a meal, or at least be able to say please and thank you. If you’re a diplomat, you’ll want to engage with interlocutors to achieve constructive outcomes. In all instances, you want to avoid misunderstanding.

Accurate legal translations serve as the bridge between not only language, but also cultures, jurisdictions, and legal systems. It enables clear communication and understanding among parties, counsel, and courts, and makes sure that the nuances and intricacies of the original source are preserved, preventing misinterpretations that could lead to costly errors and potentially alter the course of litigation.

Conversely, inaccurate legal translations can have far-reaching consequences. Mistranslations can distort factual information, alter legal arguments, and even lead to miscarriages of justice. The stakes are particularly high in international litigation, where cultural and linguistic barriers can amplify the impact of translation errors.

When is it needed?

While parties have the right to choose the language of arbitration, it is not an essential requirement, and often the language to be used is not specified; this may be because parties cannot agree on a choice of language or approach to designating the language, or simply leave the issue open when making their arbitration clause- after all, designating an arbitral language is an optional provision, and any absence thereof doesn’t jeopardise the enforceability of the arbitration agreement. However, where parties fail to specify the language of arbitration, the language used or translations/interpretations of the language used could lead to misunderstandings and disagreements.

If the language of arbitration is not specified, different jurisdictions may take different approaches to how a language is decided.

For example, the 2014 ICDR Arbitration Rules at Article 18 impose a presumption in favour of the language(s) of the documents containing the arbitration agreement, subject to the power of the Tribunal to determine otherwise. That provision states:

If the parties have not agreed otherwise, the language(s) of the arbitration shall be the language(s) of the documents containing the arbitration agreement, subject to the power of the arbitral tribunal to determine otherwise. The tribunal may order that any documents delivered in another language shall be accompanied by a translation into the language(s) of the arbitration.

However, the 2015 Arbitration Rules of the China International Economic and Trade Arbitration Commission ( “CIETAC Rules”) provide at Article 81: 18:

Language – 1. Where the parties have agreed on the language of arbitration, their agreement shall prevail. In the absence of such agreement, the language of arbitration to be used in the proceedings shall be Chinese. CIETAC may also designate another language as the language of arbitration having regard to the circumstances of the case.

Naturally, it is entirely possible and likely in international arbitration, that one or more parties may not understand, either entirely or in part, the language of arbitration; between 2011 to 2015, the International Centre for Dispute Resolution (ICDR) reported that it received over 200 new cases with Asian parties in each year wherein English was selected as the language of arbitration, however translation support was required by many of parties.

Similarly, in 2015, the Korean Commercial Arbitration Board (KCAB) received 74 international arbitration cases, of which 75% proceeded in English and the rest in Korean; however, 4% of the international cases involved only non-Korean parties and where the language of arbitration was English, it was sometimes was not the native language of either party and was instead selected as a neutral and functional language – the involvement of translation and interpretation support was frequent.

How should it be done?

The intricate nature of language differences must be carefully considered when arranging translation for arbitration proceedings, further highlighting the significance of language choice and the potential challenges faced when parties, their lawyers, or the arbitrators are not fluent in the arbitral language, requiring the use of translation or interpretation to bridge the language gap.

The importance of accurate, complete, and competent translation cannot be overstated; the translation of legal documents, terms, and opinions demands exceptional precision – not only phonetics, grammar, and syntax, but also regarding the underlying legal system and cultural context of the language.

Taking Chinese and English translation as an example; how does one translate into Chinese those English legal expressions which find their roots in the English legal system and are based on its specific socio-cultural context wherein philosophical, moral, ethical, linguistic and cultural values have all helped shape the evolution of English law evolution? Made harder perhaps as China has a civil law system that uses terms which were originally translated from German and later taken from Japanese. Add to this the additional challenge of the distinct syntax and grammatical approach of the two languages; comparatively speaking, Chinese tends to have a more straightforward sentence structure – this can be an issue where complex English sentences must be translated such as Section 31 of Hong Kong’s Evidence Ordinance Law which is comprised of 354 words, 32 commas and only one full-stop in English. A direct translation into Chinese would resemble a car crash and be completely unintelligible.

How could it go wrong?

In a case involving a Chinese seller and a US buyer (CEEG (Shanghai) Solar Science & Technology Co., Ltd. v. LUMOS LLC), the US Court of Appeals for the 10th Circuit affirmed a lower court’s decision to dismiss the Chinese party’s motion to confirm an arbitral award in its favour. The district court found that a Chinese language notice sent by the administering institution was not reasonably calculated to apprise the US defendant of the arbitration proceedings. As a result, the defendant was denied its right to participate in the arbitrator selection, rendering the remaining proceedings invalid under the New York Convention.

A sales contract between the two parties had been written in English, and all communications between the parties were conducted in English. The contract provided for China International Economic and Trade Arbitration Commission (CIETAC) arbitration but did not specify an arbitral language. The parties had also entered into a Co-branding Agreement that including a language clause designating English; however, when the US defendant claimed that the goods it received were defective, the Chinese seller initiated arbitration under the sales contract, but not the Co-branding Agreement.

The US defendant argued it was unable to meet the deadline to appoint an arbitrator due to the time it required to translate the Chinese notice of arbitration and find Chinese counsel. CIETAC therefore appointed an arbitrator in its place. The arbitral panel issued an award in favour of the Chinese seller for unpaid goods, interest, costs, and solicitor fees.

Although there were no specific allegations of procedural violations by CIETAC, the US courts found that the language usage in this case was not sufficient to meet the fundamental principle of due process. This case highlights the importance both of carefully considering language usage by the administering institution at the outset of the arbitral proceedings, and of seeking timely and professional translation services of any documents that may be identified as important.

What should you do?

In the complex landscape of international litigation, accurate and effective legal translations are indispensable tools for ensuring fairness, clarity, and the pursuit of justice. In every instance, make sure you are familiar with the arbitration rules of any jurisdiction you ascribe to, and ensure provision for designation of an arbitral language.

Where translations may or are needed, adopt a discerning approach to selecting and working with language service providers that are specialised, experienced, and competent in the legal translations to ensure effective navigation of the linguistic complexities of cross-border disputes – happily, we can help in this regard; reach out to our team to discuss any translation needs you may have at info@imdtranslation.co.uk or call on 03309121530.