Kimathi & Ors v The Foreign & Commonwealth Office

A party has no automatic entitlement to cross-examine translators who verify translations of foreign-language witness statements. The Civil Procedure Rules require the translator’s verifying affidavit but do not require the translator to attend trial to re-prove the translation. The court may nevertheless permit questioning under its case-management powers. The decisive question is whether that course furthers the overriding objective and is proportionate. Translation discrepancies, qualifications, affidavit errors and issues of provenance may instead be addressed through further written evidence, questioning of the witnesses or court interpreter, and submissions. Cross-examination will be refused where it is unlikely materially to assist the court and risks disproportionate expenditure of time and costs.

The Foreign and Commonwealth Office applied for 11 translators to attend court for cross-examination. They had translated witness statements and Part 18 responses of claimants whose evidence concerned events in Kenya. The defendant relied on alleged discrepancies between Kikuyu or Meru originals and English translations, errors in verifying affidavits, uncertainty about the translators’ qualifications, and questions concerning how the documents were created.

The claimants’ evidence had already been given, with the assistance of a separate court interpreter. The defendant had obtained independent translations and had been able to question the claimants about translation issues. The application therefore concerned whether the defendant had a right to cross-examine the translators, or whether the court should permit it as a case-management measure.

1. The application was dismissed. The defendant had no entitlement, whether absolute or subject only to the court’s control, to cross-examine the translators. CPR 32 PD 23.2 required a translator to make and file an affidavit verifying the translation, but did not require or permit the translator to file a witness statement or attend trial to re-prove the written translation. The general provisions concerning oral evidence and cross-examination did not alter that conclusion.
2. The court nevertheless had power to allow the application under its general case-management powers, in particular CPR 3.1(2)(m), and could direct otherwise under CPR 32.2(2)(b) or CPR 32.5(1).
3. The relevant question was whether cross-examination would further the overriding objective in a just and proportionate way. The court considered the defendant’s six categories of concern cumulatively. Matters concerning document provenance, affidavit errors, qualifications, discrepancies, differing translations and particular words could be addressed by further written evidence, questioning of the claimants or court interpreter, and final submissions.
4. The proposed exercise was unlikely materially to assist the court in assessing the reliability of witnesses whose oral evidence had already been heard through a separate interpreter. It was also likely to consume substantial court time and generate a wider contest between translators. Any likely benefit was therefore disproportionate to the time and cost involved. The observations concerning translation quality and provenance in NN v ZZ [2013] EWHC 2261 (Fam), Re ABC & F (Children) [2015] EWHC 3663 (Fam) and R v Foronda [2014] NICA 17 did not require the order sought.