The CPR provides assistance in the practice direction to Part 22. This says that where a document containing a statement of truth is to be signed by a person who is unable to read or sign the document, it must contain a certificate by an authorised person. Unfortunately, this requirement is frequently overlooked by both the parties and the court.
As far as drafting a witness statement is concerned, great care should be taken. In Re. Phoneer [2002] 2 BCLC 241 HHJ Kaye QC said that a witness statement must comply with the relevant Practice Direction: see Rule 32.8. The relevant Practice Direction to Part 32 of the Civil Procedure Rules requires that a witness statement must, if practicable, be in the witness’s own word … . The obvious consequence is that, if the witness does not speak English, the witness statement will be in that person’s own language, which must then be translated and the translation filed and verified in accordance with paragraph 23. Once drafted, the statement must be read to the person signing it and a suitable declaration provided. If this process is not followed and if, for example, the declaration is in the wrong form, then the court may not allow a witness to give evidence. This is what happened in a county court case in Doncaster where the District Judge struck out the claim as a result of the Claimant’s failure to comply with PD 22.3A (Mohammed v Bay, 22nd. May 2014).
For reasons that are not at all clear, the sanctions in respect of a failure to comply with PD 22.3A in respect of a statement of case will be less severe. The statement of case will still be valid unless it is struck out but a party will not be permitted to rely on its contents as evidence (22PD.4). On an application to strike it out, the pleading will only be struck out if it is not verified within the time allowed by the order. The moral of this is that great care should be taken when your client does not speak or read English because the consequences of a failure to comply with the practice direction can be fatal to the claim.