Lost in translation: a cautionary tale

Author: Alice Morrissey

The recent case of Frenkel v Lyampert and others [2017] EWHC 2223 (Ch) has highlighted the importance for parties involved in litigation in England & Wales to give early and careful consideration to the English language skills of non-native speakers giving evidence in court proceedings.

The case resulted from the breakdown of the relationship between two Russian-American friends and business partners, Mr Frenkel and Mr Lyampert.  This breakdown led to what is described in the judgment as “extensive and acrimonious litigation”. The dispute centred around the terms of an alleged oral agreement made between the parties in 2004.

As there were no contemporaneous documents recording the terms of the alleged oral agreement between the parties, the judge had the difficult task of making factual findings in respect of events which had taken place 13 years before, based predominantly upon the recollection of the three key witnesses. The difficulties the judge faced were exacerbated by problems which arose concerning Mr Lyampert’s witness evidence. Mr Lyampert was a native Russian speaker who, whilst being capable of understanding and communicating in English, was much more comfortable speaking in Russian.  The limitations of Mr Lyampert’s English language skills did not become clear until a very late stage in the proceedings, which resulted in criticism from the judge.

Mr Lyampert served three witness statements in the English proceedings.  His first two statements were written entirely in English and there was no indication in them that he was not fluent enough to give his evidence in English.  Mr Lyampert’s third statement, filed for the purpose of the pre-trial review in May 2017, indicated that his understanding of English had significant limitations and at the pre-trial review he was given permission to give evidence and be cross-examined with assistance from an “appropriately qualified interpreter”.  In cross-examination at trial, it became clear that Mr Lyampert’s first and second witness statements had been prepared with translation assistance from his wife, his daughter and a “good acquaintance”.  He could not remember how his third witness statement had been prepared.

Unsurprisingly, the judge was unimpressed by Mr Lyampert’s witness evidence, commenting that the manner in which Mr Lyampert’s witness statements had been prepared was “deeply unsatisfactory” and the fact it appeared that no regard was given to the provisions designed to assist non-English speakers in the Civil Procedure Rules and Chancery Guide was “not good enough”.  As a consequence Mr Lyampert’s evidence had to be approached with a degree of caution.

The judgment serves as a reminder that the language skills of a witness who is a non-native English speaker and their ability to produce and present their evidence in English should be considered at an early stage in proceedings. There are provisions in the Civil Procedure Rules which are designed to assist in situations where a non-native English speaker may struggle to present their witness evidence in English and these provisions should not be ignored.  If this issue is not considered and problems arise at a much later stage in proceedings, there is a real risk that a judge could call into question the credibility and reliability of the evidence, which could have serious repercussions for the outcome of the case.

Alice Morrissey, Associate, Fladgate LLP (amorrissey@fladgate.com)

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