*/
How best to prepare for your foreign language clients to ensure fairness and avoid strike out? The onus is on counsel to be alive to language issues, says Oliver Foy, who offers a cautionary case and practical tips
Litigating in a foreign language is quite obviously a daunting experience. Empathetic and well-prepared lawyers are essential – not just for the benefit of the client but for the fairness of the court process.
A foreign language client is vulnerable because language acts as a barrier to full participation. There are inherent difficulties in giving instructions, understanding advice and comprehending proceedings. The client will be concerned about the quality of their evidence and their ability to give their best evidence at trial.
It follows that adjustments are needed to ensure fairness. The responsibility for the conduct of a fair hearing lies with the parties’ lawyers as well as the court. Appropriate preparation is mandatory.
Particular care must be taken with witness statements. It is trite to say that a witness statement is intended to be the witness’s own evidence and should be expressed in their own words. A corollary of this is that it must be written in the witness’s own language, along with the statement of truth. This allows the witness to give their best and most accurate evidence.
This much is reflected in the procedural rules and guidance across civil, family and crime, either explicitly or implicitly. A witness must give evidence in their own language, which must then be translated to English. In the context of crime, where there is less focus on written statements, the right to be provided with a free interpreter is unqualified.
Serious problems can arise when the procedural rules are breached. The court expects compliance with rules and where the court loses confidence in something as fundamental as the witness’s evidence, it is not just that the weight attached to the evidence is affected but strike out and wasted costs are very much on the table.
Alam v Alam [2023] EWHC 1460 (Ch) is a good example of Murphy’s law in this area, with the result that the witness’s evidence was excluded. The following issues emerged during cross-examination:
The procedural rules, and the potentially draconian consequences of breaching them, highlight the fundamental importance of detection. It is surprising, but not uncommon, that a case can get all the way to trial before anyone realises that a witness does not understand their own witness statement.
Even after conference with counsel, the extent of the language difficulties may not have become apparent. It is important to bear in mind that witnesses may show approval and intimate that they understand when in reality they do not. In some cultures, the concept of ‘saving face’ is paramount. The witness might even pretend to read the witness statement in front of you.
This puts the onus on counsel to be alive to language issues, which may be hard to detect. The difficulty is compounded by the fact that there is no requirement for witnesses to give evidence in their first language. English is appropriate if the witness is sufficiently fluent to give oral evidence. It may not transpire until a late stage that a witness lacks sufficient fluency, especially in borderline cases.
Counsel must also be alert to informal interpretation. It is very common for witnesses to use relatives as quasi-interpreters or intermediaries. This informal interpretation might also extend to situations where clients use accident management companies. Such companies may deal with the witness in their own language and informally translate everything for the solicitors.
When preparing for foreign language clients, the first port of call is to familiarise yourself with the above issues and be ready to deal with them. Language issues should be identified at the earliest possible stage. There may be many indicators, which do not arise from speaking directly with the client.
For example, a witness statement from a different witness might say that the client was unable to communicate in English or understand what was being said to them. A document might record that the client attended an appointment with a relative to assist with interpretation. If there are any doubts, it is best to check.
As noted above, difficulties with language may not transpire until the pre-hearing conference. Be forthright if there are any doubts and do not ask leading questions. Double check that the witness understands the documents in the bundle, most importantly but not limited to their witness statement.
It is better to address the judge on the matter as a preliminary issue than have the evidence fall apart during cross-examination. To be able to deal with either situation, it is crucial to have knowledge of the procedural rules. A judge has discretion to admit defective witness statements and that discretion is guided by the overriding objective. Provisions such as CPR 22.3 or FPR PD 22A, 14.1 must be at the fingertips.
If language has already been identified as an issue and an interpreter is needed, check that the interpreter has been booked and is attending the hearing, either in person or remotely. It will still be necessary to take the client through the bundle so as to ascertain which documents they have seen and which documents have been translated for them. A conference in advance will be immeasurably helpful.
If the client has an interpreter, be sure to address the client directly using the first and second person. Look at the client, not the interpreter. Avoid colloquialisms. Speak slowly. Pause. An interpreter may need to re-order the words in a sentence in order for it to make sense. A synchronisation with the interpreter should develop. Do not isolate the client by speaking to the interpreter separately.
Equally, do not overload the interpreter. Interpretation is demanding. It is not as straightforward as translating each word verbatim. The interpreter will also be taking account of facial expressions and gestures. Therefore, make sure the interpreter is happy with the pace and able to take breaks when needed.
Upon being asked to write this article, I asked my next foreign language client what she thought was important for counsel’s preparation. She immediately and without hesitation highlighted the fear of litigating in a foreign language. What she wanted more than anything else was a sense of safety and reassurance from counsel and to ‘click’ with her representatives.
This brings us back to the vulnerability of foreign language clients. Above all, acknowledge that vulnerability. Take the time to build rapport with the client, explain that this is not an unusual situation, stress that the court system recognises the concerns and assure them that you will be by their side.
Oliver Foy is a barrister at Pump Court Chambers. Having undertaken a common law pupillage, Ollie has experience across civil, family and crime.
Litigating in a foreign language is quite obviously a daunting experience. Empathetic and well-prepared lawyers are essential – not just for the benefit of the client but for the fairness of the court process.
A foreign language client is vulnerable because language acts as a barrier to full participation. There are inherent difficulties in giving instructions, understanding advice and comprehending proceedings. The client will be concerned about the quality of their evidence and their ability to give their best evidence at trial.
It follows that adjustments are needed to ensure fairness. The responsibility for the conduct of a fair hearing lies with the parties’ lawyers as well as the court. Appropriate preparation is mandatory.
Particular care must be taken with witness statements. It is trite to say that a witness statement is intended to be the witness’s own evidence and should be expressed in their own words. A corollary of this is that it must be written in the witness’s own language, along with the statement of truth. This allows the witness to give their best and most accurate evidence.
This much is reflected in the procedural rules and guidance across civil, family and crime, either explicitly or implicitly. A witness must give evidence in their own language, which must then be translated to English. In the context of crime, where there is less focus on written statements, the right to be provided with a free interpreter is unqualified.
Serious problems can arise when the procedural rules are breached. The court expects compliance with rules and where the court loses confidence in something as fundamental as the witness’s evidence, it is not just that the weight attached to the evidence is affected but strike out and wasted costs are very much on the table.
Alam v Alam [2023] EWHC 1460 (Ch) is a good example of Murphy’s law in this area, with the result that the witness’s evidence was excluded. The following issues emerged during cross-examination:
The procedural rules, and the potentially draconian consequences of breaching them, highlight the fundamental importance of detection. It is surprising, but not uncommon, that a case can get all the way to trial before anyone realises that a witness does not understand their own witness statement.
Even after conference with counsel, the extent of the language difficulties may not have become apparent. It is important to bear in mind that witnesses may show approval and intimate that they understand when in reality they do not. In some cultures, the concept of ‘saving face’ is paramount. The witness might even pretend to read the witness statement in front of you.
This puts the onus on counsel to be alive to language issues, which may be hard to detect. The difficulty is compounded by the fact that there is no requirement for witnesses to give evidence in their first language. English is appropriate if the witness is sufficiently fluent to give oral evidence. It may not transpire until a late stage that a witness lacks sufficient fluency, especially in borderline cases.
Counsel must also be alert to informal interpretation. It is very common for witnesses to use relatives as quasi-interpreters or intermediaries. This informal interpretation might also extend to situations where clients use accident management companies. Such companies may deal with the witness in their own language and informally translate everything for the solicitors.
When preparing for foreign language clients, the first port of call is to familiarise yourself with the above issues and be ready to deal with them. Language issues should be identified at the earliest possible stage. There may be many indicators, which do not arise from speaking directly with the client.
For example, a witness statement from a different witness might say that the client was unable to communicate in English or understand what was being said to them. A document might record that the client attended an appointment with a relative to assist with interpretation. If there are any doubts, it is best to check.
As noted above, difficulties with language may not transpire until the pre-hearing conference. Be forthright if there are any doubts and do not ask leading questions. Double check that the witness understands the documents in the bundle, most importantly but not limited to their witness statement.
It is better to address the judge on the matter as a preliminary issue than have the evidence fall apart during cross-examination. To be able to deal with either situation, it is crucial to have knowledge of the procedural rules. A judge has discretion to admit defective witness statements and that discretion is guided by the overriding objective. Provisions such as CPR 22.3 or FPR PD 22A, 14.1 must be at the fingertips.
If language has already been identified as an issue and an interpreter is needed, check that the interpreter has been booked and is attending the hearing, either in person or remotely. It will still be necessary to take the client through the bundle so as to ascertain which documents they have seen and which documents have been translated for them. A conference in advance will be immeasurably helpful.
If the client has an interpreter, be sure to address the client directly using the first and second person. Look at the client, not the interpreter. Avoid colloquialisms. Speak slowly. Pause. An interpreter may need to re-order the words in a sentence in order for it to make sense. A synchronisation with the interpreter should develop. Do not isolate the client by speaking to the interpreter separately.
Equally, do not overload the interpreter. Interpretation is demanding. It is not as straightforward as translating each word verbatim. The interpreter will also be taking account of facial expressions and gestures. Therefore, make sure the interpreter is happy with the pace and able to take breaks when needed.
Upon being asked to write this article, I asked my next foreign language client what she thought was important for counsel’s preparation. She immediately and without hesitation highlighted the fear of litigating in a foreign language. What she wanted more than anything else was a sense of safety and reassurance from counsel and to ‘click’ with her representatives.
This brings us back to the vulnerability of foreign language clients. Above all, acknowledge that vulnerability. Take the time to build rapport with the client, explain that this is not an unusual situation, stress that the court system recognises the concerns and assure them that you will be by their side.
How best to prepare for your foreign language clients to ensure fairness and avoid strike out? The onus is on counsel to be alive to language issues, says Oliver Foy, who offers a cautionary case and practical tips
The Chair of the Bar launches a Manifesto for Justice as campaigning gets under way
The Institute of Neurotechnology & Law is thrilled to announce its inaugural essay competition
How does ICLR decide which judgments to report? Brendan Wright reveals the time-honoured case selection process
Having supported the Bar for nearly a decade, Louise Crush of Westgate lifts the lid on what ‘financial planning’ for barristers really entails
Launch of the Institute of Neurotechnology and Law
Paul Magrath of ICLR recalls the chequered history of law reporting prior to the 1865 establishment of a Council of Law Reporting
