Citibank NA v Ercole Ltd & Ors

Proceedings in an English court must be conducted in English, using an interpreter where necessary. A litigant in person will ordinarily give evidence through an interpreter; addressing the court directly in another language is exceptional. The trial judge has a wide discretion to adopt procedures that do justice to both parties, including where a litigant lacks English and legal experience. Pleadings and witness statements prepared and verified through competent lawyers carry a strong presumption that they represent the client’s case. An intermediary’s alleged failure to communicate the client’s true case does not, without procedural unfairness affecting the trial, justify reopening the proceedings or ordering a new trial.

Citibank sued Ercole Ltd and its guarantors for repayment of an art-secured loan. Bell J entered judgment for Citibank for nearly US$2.5 million and dismissed the defendants’ counterclaim after a seven-day trial. The defendants, represented on the renewed application by counsel, alleged that the trial had been unfair because Mr Carieri spoke little English, acted as a litigant in person with an interpreter, and had relied on an intermediary who allegedly failed to communicate their case to their lawyers.

They sought permission to appeal, a stay, admission of fresh evidence and effectively a new trial. The central issue was whether the conduct of the trial or the alleged failures of the intermediary justified reopening the case.

1. Applications dismissed. The proposed appeal was hopeless, and there was no basis for a stay, fresh evidence or a new trial.
2. Proceedings in an English court must be conducted in English, through an interpreter where necessary. Although a litigant in person may require assistance because of language difficulties and unfamiliarity with English procedure, addressing the court directly rather than giving evidence through an interpreter is exceptional.
3. Following Re Trepca Mines Ltd [1960] 1 WLR 24 and Re Fuld [1965] 2 All ER 653, the judge has a wide discretion to determine the appropriate course needed to do justice to both sides. That discretion must take account both of the litigant’s difficulties and of the opposing party’s entitlement to a fair and orderly trial.
4. There is a strong presumption that pleadings and witness statements prepared by competent lawyers, verified or signed by the litigants, have been prepared on their instructions and represent the case they wish to present. A late allegation that an intermediary failed to convey the true case does not of itself displace that presumption or require the entire litigation to be reopened.
5. The transcript did not show unfairness by the judge or a failure by Citibank’s lawyers to assist a litigant in person. Interruptions during cross-examination generally ensured that questions were answered and prevented possible inadvertent waiver of privilege. Recalling witnesses or calling a witness at the judge’s own initiative was not required. Any possible claim against the intermediary was a separate matter and did not justify a new trial.

• Court of Appeal (Civil Division): On a renewed application, dismissed the applications and refused permission to appeal from Bell J’s order.
• Queen’s Bench Division: Bell J, on 24 May 2001, entered judgment for Citibank for nearly US$2.5 million and dismissed the defendants’ counterclaim.
• Earlier interlocutory appeal: A summary judgment obtained by Citibank was reduced on appeal, leaving only two counterclaim issues to proceed to trial.