The claimant, a Portuguese national, brought a claim for damages against the defendant for personal injuries sustained during a road traffic accident. At trial in the County Court, the judge raised concern about the admissibility of the claimant’s witness statement. The statement had been written in English by the claimant’s solicitor who had taken instruction from the claimant in Portuguese before being translated and read back to the claimant in Portuguese for confirmation. The defendant objected to its admissibility into evidence on grounds that the statement and the statement of truth did not comply with the rules for witness statements in paragraphs 18.1 and 19.1 of the Practice Direction to CPR Pt 32 because they had not been drafted in the claimant’s own language. The judge held, inter alia, that paragraph 25.2 of PD 32 which permitted a defective witness statement to nonetheless be used, was restricted by the rule in paragraph 25.1 to defects to the form rather than the substance of a statement and was not therefore applicable but that he would not be prepared to allow the waiver in any event as the defects went to the heart of the issue whether the claimant’s evidence could be relied upon.
On the claimant’s appeal—
Held, appeal dismissed. (1) Whereas paragraph 25.1 of CPR PD 32 dealt expressly with the consequence of deficiencies of form in witness statements, providing that the court could refuse to admit the statement as evidence (and could refuse to allow the costs of its preparation), nothing within paragraph 25.2 restricted those defects to deficiencies of form but provided more generally that a defective statement could only be used with the permission of the judge. It followed that whether the deficiency was as an error of form or of substance, the court could exercise its control over the admission of the evidence in light of the nature, gravity and effect of the defects. The difference between the two types of statement was that, where the defects were of form, the default position would be that the statement was admitted unless the court ruled otherwise, while in the case of defects of substance, the default position was that the statement was not admitted unless the court agreed. Accordingly, where the claimant’s witness statement was defective in substance as well as in form it was not inadmissible per se but the judge had been entitled to exercise his discretion to refuse to admit it (paras 43–44,47).
Grant Armstrong (instructed by Harris da Silva) for the claimant.
Jake Rowley (instructed by Crawford and Co Legal Services, Liverpool) for the defendant.