Raja Saeed Afzal v UK Insurance Ltd

For the purposes of CPR 32, PD 18.1, a witness’s “own language” is not limited to a native or first language. It includes any language in which the witness is sufficiently fluent to give oral evidence, including under cross-examination. Where the evidence indicates such fluency, the court must assess the issue fairly and must not apply an inflexible exclusionary rule.

Any decision whether to refuse permission for a defective witness statement must consider the witness’s actual proficiency, the available evidence, the consequences of exclusion and the interests of justice. A concession made during a hurried preliminary hearing may be withdrawn on appeal where the relevant cautionary criteria are satisfied and the other party suffers no material prejudice.

The claimant appealed against a Manchester County Court order dated 14 October 2022 refusing permission to rely on his English witness statement. Liability for a road traffic accident was admitted, but causation and quantum remained disputed.

The first-instance judge concluded that Urdu was the claimant’s own language, treated the English statement as non-compliant with CPR 32, PD 18.1 and related provisions, and refused permission to rely on it. The claimant argued that he was sufficiently fluent in English, that the judge had misconstrued the Practice Direction, and that permission or an adjournment should have been granted.

The central issues were the meaning of “own language”, the effect of a concession made at trial, and the proper approach to permission to rely on a defective statement.

1. Appeal allowed. The judge had misconstrued CPR 32, PD 18.1 by treating “own language” as necessarily meaning the claimant’s native or first language. The expression includes any language in which the witness is sufficiently fluent to give oral evidence, including under cross-examination. The Business and Property Courts Guide provided clarification rather than a new gloss on the Practice Direction (paras [33]-[44]).
2. The claimant’s ability to give instructions, read and understand English, communicate fluently with medical practitioners and attend appointments without an interpreter was materially relevant. The evidence did not justify treating Urdu as the only permissible language for his statement (paras [44]-[47], [80]-[84]).
3. The claimant was entitled to withdraw the concession that Urdu was his own language. The issue had been raised by the court at the hearing, there had been little time to consider the legal and factual implications, the point had been carefully argued on appeal, and withdrawal caused no material prejudice beyond the need to relist the trial. The principles in Jones v MBNA International Bank, Singh v Dass and Notting Hill Finance Ltd v Sheikh were satisfied (paras [59]-[65]).
4. Even if the first-instance construction had been correct, the refusal of permission was outside the generous ambit of the discretion. The judge treated compliance with the Practice Direction as almost inflexible and failed adequately to weigh the claimant’s proficiency, the evidence, and the very serious consequence of preventing him from pursuing the claim. The appellate court was entitled to exercise the discretion afresh and would grant permission to rely on the English statement (paras [79]-[86]).
5. The issue of an adjournment did not arise in light of the conclusions above. If it had arisen, the judge would also have erred in refusing an adjournment (para [88]).

• High Court (King’s Bench Division): allowed the appeal against the Manchester County Court order dated 14 October 2022 and directed that the matter proceed to a new trial.
• Manchester County Court: refused permission to rely on the claimant’s English witness statement and refused an adjournment, with the result that the claimant could not prove his case at trial.