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The Queen's Bench Division has dismissed the defendant's application that translators of the claimants' foreign language witness statements be required to attend court for cross-examination. In doing so, it found that any power to make such an order existed under its general case management powers (CPR 3.1(2)(m)) as opposed to under Part 32 of the CPR. This decision is also interesting in its consideration of the distinction between translators of witness statements and interpreters for witnesses giving oral testimony. It also offers some practical tips for practitioners with concerns about the reliability and/or accuracy of translated witness statements.
This was originally published Lexis®PSL on 1 December 2016. Discover how Lexis®PSL can help you stay on top of the latest developments and find the answers you need fast, click here for a free trial to access.
Practical implications arising from this judgment include:
The defendant sought an order that translators of the claimants' foreign language witness statements be required to attend court for cross-examination. It contended the purpose of its application was for it and the court to:
understand the process by which the documents were created and make judgment as to the reliability and accuracy of the documents in portraying the true account of the witness.
Note: in this case, the translators of the witness statements were not the same people as those who had interpreted for the witnesses in their oral testimony.
The court found there was no entitlement to cross-examine the translators of the witness statements under CPR PD 32, para 23.2, CPR 32.2(1), CPR 32.5 or CPR 32.7 (paras –).
As such, any power to make such an order fell under the court's general case management powers pursuant to CPR 3.1(2)(m) and therefore fell to be determined by reference to case management principles and furthering the overriding objective.
This fact specific decision indicates, among other things, that in determining such an application, the court will consider:
'any benefit accruing to the court from hearing translators is not a proportionate benefit in terms of time and cost'
(para [52(iii)]—see Cross-examining translators (Kimathi v FCO) — What are the practical implications of this case? as to the alternative ways in which the court suggested the various concerns raised by the defendant could be addressed
See Practice Note: Difficulties when interviewing witnesses — Non
English speaking witness.
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