CPR 113th Update: Procedural Changes to Statements of Truth and Witness Statements in Foreign Languages

Statements of Truth

On 6^th April 2020 Practice Direction 22 will be amended in the following terms:

“I believe that the facts stated in this [particulars of claim/witness statement, etc] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

The current requirements under PD22 2.1 and 2.2 in respect of the form of a statement of truth are as follows:

For statements of case, response, application notice or notice of objections:
‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true.’
For witness statements:
‘I believe that the facts stated in this witness statement are true.’
For costs budgets:

‘This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation.’

The Practice Direction in its current form draws attention to CPR 32.14, which sets out that proceedings for contempt of court may be brought against someone who makes or causes to be made a false statement in a document verified by a statement of truth without an honest belief in its truth. The amendment makes no change to the sanction, nor does it introduce for the first time, reference to the sanction within the CPR. However, the above amendment places an even greater emphasis than previous editions of the CPR on the gravity of signing a statement of truth and the sanction that can be imposed for false verification. The potential sanction will now be made explicit on every document that bears a statement of truth, with the obvious effect of drawing the makers attention to this sanction when they sign the document. It will be difficult to claim ignorance of the importance of the verification and potential consequences of making a false statement. Further, PD22 3.8(2) will require that solicitors explain to the client (through an interpreter if necessary) the importance of the statement of truth and if solicitors are signing on a client’s behalf, that they would be confirming the client’s belief that the facts stated in the document were true.

Moreover, any statements of case which do not bear the new form of statement of truth will be subject to applications to strike out and the court may refuse to allow evidence from witnesses whose statements have been improperly verified.

This amendment follows a number of recent decisions that have considered the importance of statements of truth and consequences for false verification. In Liverpool Victoria Insurance v Zafar [2019] EWCA Civ 392 involved an expert General Practitioner who was found guilty of contempt of court for verifying a medical report with a false statement of truth. The Court of Appeal found that the deliberate or reckless making of a false statement in a document verified by a statement of truth will be so inherently serious that nothing other than an order for committal to prison will be sufficient. The position is more serious if an expert witness makes the false statement for reward. The Court gave guidance as to the appropriate sentencing for contempt of court.

In Jet 2 Holidays Ltd v Hughes [2019] EWCA Civ 1858 the Court of Appeal found that proceedings for contempt of court may be brought by a party, despite the fact that the statements of truth on which the committal proceedings were based, were signed prior to legal proceedings being commenced and even though legal proceedings pertinent to proceedings were never issued.

The upcoming changes are welcome in light of Mrs Justice Cockerill’s apt observation (in Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm)) that “a sense of the very real importance of statements of truth may have been lost in the years which have passed since they were introduced.”

Witness statements in foreign languages

In addition, much needed clarity will be introduced in relation to witness statements in foreign languages i.e. any language other than English or Welsh. The updated requirements include:

PD22 2.4: the statement of truth must be in the witness’s own language.
PD32 17.1(6): the date of the translation must be included.
PD32 18.1: the witness statement must, if practicable, be in the intended witness’s own words and must be drafted in their own language.
PD32 18.1(5): the body of the witness statement must contain details as to the process by which it has been prepared, for example, face to face, over the telephone and/or through an interpreter.
PD32 23.1: where a witness statement is in a foreign language, the party wishing to rely on it must have it translated and file both the translation and foreign language witness statement with the court. The translator must sign the translation to certify that it is accurate.

These amendments address the issues of cases in which a witness statement is presented in English but where the witness cannot (or cannot satisfactorily) speak English and therefore the statement is not necessarily ‘in their own words’ as the current rules demand.

Practice Points:

Monitor whether the requirements of PD22 and 32 are being complied with (both by the opposing party and your own witnesses) - even in cases of modest value, especially in light of the pending whiplash reforms and rise in the small claims track limit.
These changes are likely to give rise to further opportunities for unless orders or procedural strike outs to be obtained for failures to comply with practice directions.
The requirements for statements of truth apply not just to Claimants and lay witnesses but also experts.
False statements of truth made prior to the commencement of proceedings can form the basis of committal proceedings.
Practitioners should ensure all requirements are complied with prior to signing a statement of truth on a witness’s behalf.
Practitioners should routinely consider the prospect of contempt proceedings in circumstances where a false statement has been verified by a statement of truth.