ACTIONS OF TWO CLAIMANTS STRUCK OUT BECAUSE THEIR WITNESS STATEMENTS WERE IN ENGLISH AND THEY COULD NOT SPEAK ENGLISH: “THE SOLICITORS HAVE NOT DONE THEIR DUTY APPROPRIATELY”

December 11, 2024 · by · in Applications, Avoiding negligence claims, Civil evidence, Striking out, Witness statements

We are returning to the judgment of Mr Justice Martin Spencer in Rashpal Samrai & Ors v Rajinder Kalia [2024] EWHC 3143 (KB). More accurately we are looking at a preliminary judgment in the case which appears as an annexe to the main judgment.  In that judgment the judge found that witness statements prepared by some of the claimants did not comply with the rules. The witnesses could not speak English and yet their statements were in English.  The actions of those claimants were struck out.

“… it seems to me at first blush that the solicitors have not done their duty appropriately in this case in that they have not engaged directly with the Fifth and Sixth Claimants, they have not established that which ought to have been established well in advance of this trial in relation to their ability to read and speak English, and this should have been raised at the pre-trial review so that appropriate steps could be taken. For this to have arisen in the course of cross-examination of Mr Singh by Ms Crowther is wholly unacceptable and, I agree, amounts to a virtual contempt of the proceedings of this court. In those circumstances, it would be quite wrong for me to exercise my discretion to give the Fifth and Sixth Claimants any sort of indulgence, given also the wasted costs which that would entail. In my judgment, the only appropriate step is to refuse Mr Jones’ application and the consequence of that must be that the claims of the Fifth and Sixth Claimants are struck out.”

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Judges regularly complain that witness statements are inadequate and do not contain sufficient information, alternatively that they contain much information that is irrelevant and the witness is unable to give.

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THE ISSUES ARISING IN RELATION TO THE WITNESS EVIDENCE OF TWO OF THE CLAIMANTS

This was an action alleging sexual and financial abuse by the defendant, a religious leader.  There were seven claimants. Initially it was said that certain of the claimants could not attend trial for health reasons.  In fact they did attend. One claimant started to give evidence and confirmed his witness statement. However during cross examination it became clear that not only could this claimant not speak English he was not, in fact, literate in any language.  The claimants therefore applied for relief from sanctions and sought permission to rectify the situation.  The defendants argued that the claims of the two claimants this applied to should be struck out.  The judge struck out the claims of the two claimants.

THE JUDGMENT OF THE 5TH JULY 2024

 

  1. This is an interim judgment arising out of the evidence yesterday of Mr Joginder Singh, the Fifth Claimant. As I shall explain, in the course of Mr Singh’s evidence it became clear that, although his witness statement is in English and he affirmed its accuracy he cannot in fact speak English at all. His only language is Punjabi. Indeed, he said through an interpreter that he cannot read or write at all and that was confirmed to the court by Mr Jones, he saying that he had never been to school. Mr Jones on Mr Singh’s behalf indicated that the Sixth Claimant, Mrs Tarsem Singh, is in a similar position and that she too cannot speak English and he made an application for an opportunity to rectify the position.
2Having heard from Ms Crowther KC, counsel for the Defendant, I refused Mr Jones’ application and stated that for reasons which would be given this morning the claims of the fifth and sixth Claimants would be struck out. These are those reasons.
3 I start with the background to these proceedings. The Defendant, Mr Kalia, is the founder, leader and guru of the Baba Balak Nath Temple at 9 Proffitt Avenue, Coventry. I understand that the Baba Balak Nath tradition fits into the Hindu practice and originated in the Punjab. Baba Balak Nath is, as I understand it, believed to have been the eldest son of Shiva and appeared in human form as a Brahmin cow herd boy who lived a life of asceticism and performed miracles in his lifetime. Baba Balak Nath is worshipped as a deity in the Temples which are dedicated to him. Whilst in some forms of Hinduism the guru is himself regarded as God manifested in human form, I understand that is not the case in the Baba Balak Nath tradition where the guru is regarded as a servant of God and a spiritual guide.
4 The Claimants were each worshippers at the Baba Balak Nath Temple in Coventry. They claim to have been subjected to psychological domination by the Defendant, they claim to have been in thrall to him as their religious leader and in consequence parted with substantial sums of money to the Defendant or for his benefit and further undertook significant unpaid work in and around the Temple or Mandir as it is known.
5 The First to Fourth Claimants claim that they were subject to sustained sexual abuse by the Defendant. In the case of the Second, Third and Fourth Claimants, as children, and then as adults being expected to subject themselves to the Defendant’s sexual wishes, each surrendering their virginity to him. The Fifth and Sixth Claimants, Mr and Mrs Singh, are the parents of the Second Claimant Ms Kashmir Sahota. They ceased to be members of the Temple when the allegations of sexual abuse of their daughter emerged at the beginning of 2017.
6 This is the eighth day of this trial. I have heard the evidence of the first, second and third Claimants, and also the evidence of the Seventh Claimant. I have also heard evidence from a journalist, Mr Neil Johnston.
7 Yesterday, on Day 7 of this trial, Mr Jones called the Fifth Claimant, Mr Joginder Singh. Before relating what occurred yesterday, there is an important background matter which it is relevant to relate. On the first day of this trial in the course of his opening, Mr Jones, counsel for the Claimants, raised a number of what he called housekeeping matters. The sixth of those housekeeping matters, which Mr Jones described as a “rather more seismic” matter in terms of timetabling, was the position of the Fifth, Sixth and Seventh Claimants. They were not at court on Day 1. Mr Jones told me that on his instructions each of them was in poor health. He said:

“Each of them I am instructed is considered highly unlikely to be in a condition to travel to London to give evidence in person. My instructions this morning are that it is considered unlikely that any of them will be fit to give evidence by video-link from their homes in the West Midlands. I have asked for appropriate medical evidence to be obtained in relation to each of them to explain the nature of the condition or conditions from which they suffer, how that affects their ability to give evidence and so on in the usual way.”

I established with Mr Jones that this development was something that was new to him. The news, he said, came to him late on the Friday before the Monday that this case commenced. Mr Jones indicated that he gave appropriate advice on that Friday about the need for medical evidence and enquiries were ongoing. I indicated that, for three Claimants all to be in that position at the same time, with no inkling that that was to be the case on the part of their solicitor, was not usual in my experience and that it raised all kinds of questions and suspicions.

8 In response, Mr Jones told me that he was informed that each of these Claimants was elderly, suffering from a series of chronic health problems, but the first he knew of their difficulties was on Friday.
9 Ms Crowther KC for the Defendant commented that there is obviously a big difference between chronic and acute illness. She said:

“The chronic situation we have no evidence of. There is no medical evidence in the bundle and it wasn’t suggested at the pre-trial review that there were any health issues that would impact on attendance at all.”

She said that in terms of acute illness there was even less evidence. She suggested that in the absence of their attendance these were Claimants whose cases couldn’t progress and this issue gave rise to the question whether those Claimants should be permitted to continue with their claims in these proceedings at all in the circumstances arising. She said:

“Our position is that it is simply not good enough and it is contemptuous of the court and they ought to be put to their election as to whether they wish to proceed now or not.”
10 On the second day of the trial, 25 June, Ms Crowther revisited the issue of the Claimants’ health. She said:

“We have had no news at all from Peacock & Co. I spoke to my learned friend this morning before sitting and the position remains that Claimants 5, 6 and 7 have indicated that they are not going to attend and do not intend to attend. Mr Jones has told me he wishes to obtain some medical evidence but our position is as follows that medical evidence appears to be adduced for the purpose of explaining why they have not attended. There is no adjournment application either intimated or suggested and it is difficult in these circumstances to see whatever that medical evidence might say what difference it is going to make, because you are not being invited to do anything other than proceed with this claim. It cannot be that we are left in a state of uncertainty as the evidence opens as to what evidence is going to be led and what claims are going to be in issue.”

She said that in her submission that would be fundamentally unfair.

11 We turn to Day 3, which was in fact Friday 28 June, the court not having sat on the previous two days. Again, Ms Crowther raised the position of the Fifth, Sixth and Seventh Claimants. Ms Crowther told me that again there had been no correspondence from Peacock & Co, the Claimants’ solicitors, but said this:

“Mr Jones has just within the last five minutes informed me that the Seventh Claimant has now changed her mind and intends to come and give her evidence in person next week. In respect of the Fifth and Sixth Claimants, I am told that Mr Jones wishes to make an application in due course for them to give their evidence via video-link. As things presently stand there is no medical evidence from any of the Claimants, Fifth, Sixth or Seventh, about what has been going on and we were told on Tuesday that there was an appointment for Claimants 5 and 6 with the GP yesterday. I don’t know if that took place, I don’t know what the outcome of it was but obviously if there were to be an application for video-link evidence that would give rise to some practicalities. Not least because Claimants 5 and 6 wish to give their evidence in Punjabi and the bundles are extremely substantial and mostly in English. So there are other considerations that arise in addition to the fundamental question as to whether the medical evidence justifies the application in the first instance.”

It was not possible to take the matter any further at that stage.

12 Then, finally, on Day 4, 1 July, which was last Monday, Mr Jones said this:

“The position in relation to the Fifth, Sixth and Seventh Claimants has evolved and I am instructed now that they will all be coming to give evidence in person.”

Clearly, as I indicated on the first day, the non-attendance of those Claimants and the reasons given for it raised suspicions, and those suspicions were only reinforced by the developments over the following days of this trial.

13 I return then to the events yesterday when Mr Singh, the Fifth Claimant, was called by Mr Jones. An interpreter had been arranged upon the basis, as, I understood it, that, whilst Mr Singh was fluent in English and English was therefore his own language within the terms of the Civil Procedure Rules, the interpreter could assist with any technical words or matters or translate where the witness felt more comfortable replying in Punjabi. This had in fact been the case with the Seventh Claimant who gave evidence immediately before the Fifth Claimant, and the arrangement had worked well in her case. In the case of the Seventh Claimant, it was clear to me that her knowledge of English was in fact excellent.
14 What then transpired when Mr Singh was called was as follows. First, Mr Singh repeated the words of the affirmation given by my Associate, it must be said, with some difficulty. Then, with the assistance of Ms Kirby, his solicitor, Mr Singh identified his signatures on each of his witness statements which were in English.It went slightly further than simply the identification of his signature because at one stage Mr Jones took Mr Singh to page 1484 of the bundle, paragraph 11 of his witness statement, where it stated:

“In 2012 I suffered another work accident. A ladder fell on my right shoulder, my work colleague lost his balance.”
15 Mr Jones put to Mr Singh that he wished to clarify the date and asked what year was it and he replied: “11”. Mr Jones said:

“Does that mean 2011?”

He replied:

“2011, sorry”.

He then identified his signature in his second witness statement and his signature in his third witness statement. He affirmed that his evidence-in-chief was in accordance with the contents of those witness statements which he affirmed to be true.

16 Ms Crowther then rose to her feet to cross-examine Mr Singh and initially asked questions involving the events surrounding the initial indication that he had been unfit to attend the trial because of his health. Ms Crowther then asked this question:

“Now your witness statements, Mr Singh, are written in English, yes?”

The question was interpreted and the answer, also interpreted was:

“Yes, they were read to me in Punjabi.”

I clarified that answer and the interpreter confirmed that Mr Singh had said:

“They were read to me in Punjabi.”

The implications were immediately obvious to me. I said “ah” and Ms Crowther also said,

“Ah, you see, Mr Singh, you have just confirmed the accuracy of these statements. Are you telling this court that you can’t actually read any of these documents?”

To which Mr Singh, through the interpreter, answered:

“No. I didn’t go to school and I can’t read or write.”

That led to Mr Jones making his application in relation to the witness statements. He said this:

“I would preface matters by saying, as your Lordship may have observed this afternoon, developments came as a surprise to me. They also came as a surprise to my instructing solicitor. We had each had the understanding on instructions that the Fifth and indeed Sixth Claimants could understand, could converse in and could read English, and there was nothing, I am instructed, to alert my solicitor or, for what it is worth, me that there was any deficiency in those statements. My Lord, you may recall when dealing with the question of the interpreters I addressed the court on the basis that I understood that the witnesses would be able to converse in English, would be able to give their evidence in English but might need interpretation to deal with particular concepts, particularly difficult words, as with the lady from whom we heard evidence this morning. It transpires first of all, as has been elicited in a few short questions from my learned friend, that there is a breach of practice direction 32, paragraph 18.1. That of itself in my submission doesn’t automatically mean that the evidence must be excluded. It gives the court a discretion as to whether or not to admit the evidence based on my reading of paragraph 25.1 of the practice direction. But I must alert the court, I have already alerted my learned friend, to a further difficulty. It transpires, I am instructed, that neither the Fifth nor Sixth Claimants can read or write in either the English or the Punjabi languages. This is something I am instructed of which they are, well, they are embarrassed about it. I am instructed that their daughter, Ms Kashmir Sahota, the second Claimant, was, until today unaware of that fact. Against that background, my application is to adjourn taking the evidence of the Fifth and Sixth Claimants to see whether the matter can be rectified. In my respectful submission, that doesn’t necessarily take up an undue amount of court time, because I have other witnesses to call in the form of the Fourth Claimant and Mr Garcha who happens to be present this afternoon.
In the interim what I would or those instructing me would seek to do is obtain proper Punjabi language statements from the witnesses to comply with practice direction 32, paragraph 18.1 and to obtain the appropriate certificate by an authorised person who has read the statements to the witnesses and can confirm, assuming that they can confirm that the witnesses understood the statements and so forth and were able therefore to sign them in accordance with the statement of truth in accordance with CPR part 22.”

Mr Jones went on to make it clear that the application was to invite the court not to exercise its discretion to exclude the evidence at that stage and to postpone the taking of the evidence of the witnesses whilst, and I quote:

“Those who instruct me bluntly get [I think it must be to grips with it] and try to obtain witness statements in proper form and properly certified and then obviously translated back into English so that they can be understood by my learned friend.”
17 I will come to the submissions of Ms Crowther in a moment, but first it is appropriate to set out the position in law. CPR Civil Procedure Rules part 22 and the practice direction to part 22 deal with statements of truth. They provide that certain documents must be verified with a statement of truth, including of course a witness statement. That also applies to the Particulars of Claim and to Schedules of Loss. So far as witness statements are concerned, these are dealt with in part 32 of the Civil Procedure Rules. Rule 32.8 provides:

“A witness statement must comply with the requirements set out in practice direction 32.”

32PD, paragraph 18.1 provides:

“The witness statement must if practicable be in the intended witness’s own words and must in any event be drafted in their own language.”

Again, at paragraph 19.1, it is stated:

“A witness statement should be drafted in the witness’s own language.”

Paragraph 23.2 provides:

“Where a witness statement is in a foreign language, the party wishing to rely on it must have it translated and file the foreign language witness statement with the court. Where a witness statement does not comply with part 32 of this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.”

Paragraph 25.2 provides:

“Permission to file a defective affidavit or witness statement or to use a defective exhibit may be obtained from a judge in the court where the case is proceeding.”

I also refer to the King’s Bench Guide which provides as follows:

“If a witness is not sufficiently fluent in English to give their evidence in English, the witness statement should be in the witness’s own language and a translation provided.”
18 It was made clear in the decision of Mr Justice Freedman in Afzal v UK Insurance Limited [2023] EWHC 1730 (KB) that a witness’s own language need not necessarily be the witness’s first language. Thus witnesses may be bilingual or, although not being their first language, may have a sufficient knowledge, understanding and use of English for English to be appropriately described as their “own language”. Indeed, that was the position as I perceived it to be in the case of the seventh Claimant. However, it was clearly not the case in the case of the fifth Claimant, Mr Singh, and Mr Jones made it clear that neither is it the case with the sixth Claimant, Mrs Singh.
19Opposing Mr Jones’ application, Ms Crowther KC submitted as follows:

“Taken in combination with the shenanigans, if I can call it that, about whether they were going to attend or not and the medical evidence, our submission is that the clear implication is that there has been effectively no engagement by the fifth and sixth Claimants in this claim and that the court can’t have any confidence that this action is actually being brought by them. What seems to be being happening is that it is being brought by the second Claimant. We think there are additional difficulties to the ones which your Lordship has identified. We would also agree that the pleadings and the schedules, and I point out at this point that the Fifth and Sixth Claimants bring claims for £276,000 in payments in their schedule, and that is before we look at unpaid work. All those schedules can’t possibly be the evidence of either the Fifth or Sixth Claimant.
Even worse, in that witness statement, the first witness statement which I was just cross-examining Mr Singh about when we broke off his evidence, he actually says at paragraph 2 that he had read the statement of his wife and confirmed the accuracy of its contents. So there is a statement of truth issue about the contents of the statement itself. In his third witness statement he refers to the fourth witness statement of the second Claimant and says he has read that and confirms the accuracy of its contents. So it cannot be that the evidence which might be produced in due course will be the same as what we have seen before. It will have to be different and it will also have to explain how it could possibly have been that these statements of truth were signed.”
20Ms Crowther returned to a theme which she had raised on the first day of the trial, suggesting that this was becoming not just carelessness but frankly contemptuous of the court’s process. She submitted that there is no rescuable situation here. She said:

“They [that is the witnesses] will have to be completely reproofed from top to bottom on the pleadings, on the schedules, on every single document. They have done four witness statements each, they cross refer to other witness statements, it is not a small problem. It is not just a question of typing out the statement again and saying, ‘it has been read back to me’ and putting the certificate on it. In fact, if they did that, and, my Lord, you will have noticed in reading the statements of the fifth and sixth Claimants they are very similar, very similar indeed. We submit all this suggests they have never really engaged with this and there is no good reason to allow any indulgence at this stage.”
21In my judgment, Ms Crowther is completely right about this. The problems which have arisen over the fact that statements of truth were appended to the Particulars of Claim, the Amended Particulars of Claim, the Reamended Particulars of Claim, the Schedules of Loss, and then to multiple and successive witness statements, are fundamental to the claims of the Fifth and Sixth Claimants. This is clearly and certainly not a question of simply redrafting those statements in Punjabi and having them certified, having been read to those Claimants. Firstly the Particulars of Claim, then the Schedules and then the statements would all have to be revisited and the potential is there for the claims to be fundamentally amended once it is established exactly what the evidence of those Claimants is that they are able to state to the court. There is no acceptable explanation for how this situation has arisen in this case.
22  I suspect but it is no more than a suspicion, that the engagement with the Fifth and Sixth Claimants has, as Ms Crowther suggested, been through their daughter, the Second Claimant, who of course has perfect English and has been able to liaise on their behalf. But that is, as I say, speculation and if that is the case it seems to me at first blush that the solicitors have not done their duty appropriately in this case in that they have not engaged directly with the Fifth and Sixth Claimants, they have not established that which ought to have been established well in advance of this trial in relation to their ability to read and speak English, and this should have been raised at the pre-trial review so that appropriate steps could be taken. For this to have arisen in the course of cross-examination of Mr Singh by Ms Crowther is wholly unacceptable and, I agree, amounts to a virtual contempt of the proceedings of this court.In those circumstances, it would be quite wrong for me to exercise my discretion to give the Fifth and Sixth Claimants any sort of indulgence, given also the wasted costs which that would entail. In my judgment, the only appropriate step is to refuse Mr Jones’ application and the consequence of that must be that the claims of the Fifth and Sixth Claimants are struck out.
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