Introduction

In an increasingly globalised world, litigation within England & Wales often involves parties, events, or evidence sourced from beyond its borders. The testimony of foreign witnesses can be crucial for the successful resolution of claims, yet their involvement brings a unique set of procedural and practical challenges. Understanding these complexities is vital for both lawyers and their clients seeking to maximise the effectiveness of foreign witness evidence while minimising associated risks.

The Challenges: Language, Logistics, and Legal Hurdles

Engaging foreign witnesses introduces several challenges for lawyers, judges and witnesses alike especially in sensitive dispute matters. Language barriers not only complicate the preparation and presentation of evidence but also raise the risk of misunderstandings and inaccuracies. Logistically, arranging for foreign witnesses to attend court, whether in person or remotely requires careful planning, especially considering time zones, travel restrictions, and differing legal systems. Legally, ensuring that foreign evidence complies with English procedural requirements demands vigilance, as errors can result in evidence being excluded or given less weight. Courts often rely on interpreters, but issues can arise such as incorrect language identification, differences in dialect and cultural misunderstandings which can lead to delay and procedural complications.

Procedural Requirements: The Civil Procedure Rules and Foreign Witness Evidence

The Civil Procedure Rules (CPR) govern the conduct of civil litigation in England & Wales. Part 32 of the CPR and its associated Practice Directions set out the requirements for witness statements and the giving of oral evidence. All witness statements must be in English and verified by a statement of truth. Where a witness is unable to provide a statement in English, the statement must be drafted in the witness’s own language and then translated, with both the original and the translation filed with the court. The translator’s details and a certificate of accurate translation must also be included.

For witnesses giving oral evidence who are not proficient in English, the CPR allows for the use of interpreters. The court must be satisfied that the interpreter is suitably qualified and impartial, and the interpreter’s role is to provide a faithful and accurate translation of both questions and answers during proceedings.

Risks for Parties to Disputes

Relying on foreign speaking witnesses presents several risks. Miscommunication during the preparation of statements or oral evidence can lead to inaccuracies, inconsistencies, or misunderstandings that undermine a witness’s credibility and therefore a party’s case. There is also the risk that evidence may be given less weight if the court is not confident in the accuracy of translation or the interpreter’s impartiality. Furthermore, procedural missteps such as failing to provide a certified translation can result in evidence being excluded altogether.

Overcoming the Risks

Lawyers can mitigate these risks through careful planning and preparation. Early identification of foreign witnesses allows time to secure qualified interpreters and translators. Drafting witness statements first in the witness’s own language ensures accuracy and authenticity, while using professional translation services minimises the risk of error. During oral evidence, pre-briefing interpreters and witnesses on the process can help ensure smooth proceedings. Maintaining meticulous records and compliance with CPR requirements is essential to avoid procedural pitfalls.

Example Cases and Lessons Learned

Several reported cases have highlighted the challenges and lessons relating to foreign witnesses. In Mahmood v. Penrose [2021] EWHC 180 (QB), the court criticised the use of an unqualified interpreter, noting that the quality of translation affected the credibility and weight of the oral evidence. Similarly, in Blue v. Ashley [2017] EWHC 1928 (Comm), the court emphasised the importance of ensuring that interpreters are impartial and that translations are accurate, as any doubts can undermine the reliability of the witnesses. These cases underscore the necessity of using suitably qualified professionals and adhering strictly to procedural requirements.  Lawyers and witnesses should avoid relying on family members as unqualified interpreters to avoid compromising accuracy and impartiality. 

More recently, in Rainer Hughes Solicitors v Liverpool Victoria Insurance Company Ltd & Ors [2024] EWHC 585 (KB), the High Court dismissed an appeal against a wasted costs order arising from a firm's handling of a Turkish-speaking claimant's witness evidence. The claimant's original solicitors had prepared her witness statement in Turkish with a certified English translation, but after she changed representation, her new solicitors produced an English language witness statement despite numerous indications that she was not sufficiently proficient in English, including references within the statement itself and other contemporaneous evidence. 

Applying the principles confirmed in Afzal v UK Insurance Ltd [2023] EWHC 1730 (KB), the court held that where a witness is not sufficiently fluent in English to give oral evidence, including under cross-examination, their witness statement should be prepared in their own language, supported by a certified translation, with appropriate interpreting arrangements made for trial. The claimant was ultimately unable to understand her witness statement or the pleadings on the day of trial, resulting in her claim being struck out. The court found that the solicitors had acted negligently and in breach of their duties to the court, causing unnecessary costs to be incurred. The decision is a powerful reminder that compliance with CPR Part 32 and Practice Direction 32 in cases involving foreign language witnesses is a substantive obligation rather than a procedural formality and that failures in relation to translation and interpretation can have significant costs consequences. 

Professional Interpreters: Role, Risks, and Challenges

Professional interpreters are essential in bridging linguistic gaps and therefore play a crucial role in facilitating the participation of foreign speaking witnesses. However, their involvement also introduces risks. Interpreters must be impartial, sufficiently qualified, and able to convey nuances and legal terminology accurately. There is a danger that poor interpretation can distort evidence or that an interpreter’s lack of impartiality may be challenged by the opposing party. Misunderstandings or misinterpretations can have serious consequences for the outcome of the case.

Edwin Coe’s Expertise: Meeting the Challenges

Edwin Coe has significant experience assisting clients in navigating the complexities of foreign witness evidence. The firm’s Dispute Resolution teams are adept at managing cross-border issues, ensuring that procedural requirements are meticulously followed and that clients are fully prepared for the challenges that may arise. With established connections to professional interpreters and a track record in high-value, multi-jurisdictional disputes, Edwin Coe is well placed to support parties relying on foreign witnesses. We understand both the importance of understanding our clients and the sensitive nature of information divulged by all clients together with the importance of abiding by the rules of the legal system in place.  Equally we understand that that the practicality of having a witness give evidence in court with an interpreter may cause further challenges in a courtroom environment. 

About the Author: Shams Rahman

Shams Rahman, Head of Contentious Trusts and Estates, is a leading litigation solicitor with substantial experience in cases involving foreign speaking witnesses and professional interpreters. He has managed complex, multi-jurisdictional disputes where the evidence of non-English speaking witnesses was pivotal to the outcome. Shams’ meticulous approach ensures that every aspect of the process from the preparation of witness statements to the use of interpreters in court is handled with precision. His ability to anticipate and address potential challenges makes him an invaluable asset to clients facing cross-border litigation issues.