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Top tips for dealing with documents the signatory cannot read

Sarah Venn saw in the New Year with a costs budgeting hearing on 2 January 2015 for a five day multi-track employer’s liability trial.  She also successfully applied for strike-out of a claim on the morning of trial on 8 January 2015, when a claimant with a long history of claims had failed to disclose medico-legal reports from other claims, had failed to ensure that translated documents had CPR compliant certificates signed by an authorised person and the claimant had permission to rely on medico-legal evidence from an expert who had not examined the claimant.  Sarah's top tips for dealing with documents the signatory cannot read are set out below.

The provisions of the CPR that deal with the signing of statements of truth when the signatory is unable to read the document are clear and easy to follow, but a number of practitioners fail to get it right; this is often problematic and it was a factor relied on in a successful application I made for strike-out of a claim this week.

1. CPR 22 PD 3A.1 states:

"Where a document containing a statement of truth is to be signed by a person who is unable to read or sign the document, it must contain a certificate made by an authorised person.” 

An authorised person is specified by CPR 22 PD 3A.2 to be a person able to administer oaths and take affidavits, but they do not need to be independent of the parties or their representatives. In the case I was involved in, a paralegal who was not an authorised person had signed the certificates.

2. CPR 22 PD 3A.4 directs that the form of the certificate which must be used appears in Annex 1 to the Practice Direction:

"I certify that I [name and address of authorised person] have read over the contents of this document and the declaration of truth to the person signing the document [if there are exhibits, add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand (a) the document and approved its content as accurate and (b) the declaration of truth and the consequences of making a false declaration, and made his mark in my presence.”

The wording of the certificate should not be modified; in the case I was involved in a different form of words had been used and this was referred to in the application for strike-out.

3. The consequences of failing to verify a document with a statement of truth are set out at CPR 22 PD 4. A statement of case remains effective, unless it is struck out, but a party may not rely on the contents of a statement of case as evidence until it has been verified by a statement of truth. 4.2 states that any party can apply to the court for an unless order specifying that the statement of case must be verified by the service of a statement of truth, failing which the statement of case will be struck out. 4.3 specifies that the usual order for the costs of an application for an unless order will be that the party who failed to verify will pay the costs.

4. Many practitioners draft witness evidence in English and, if the witness requires the assistance of a translator, add a certificate in the form of Annex 1 to CPR 22 PD to the witness statement. However, CPR 32.4(1) specifies that “a witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”  When a witness will not give their evidence orally in English, the statement should be in the language the witness will use; that statement should then be translated into English. 

This was emphasised in Re Phoneer [2002] BCLC 241 when the Court held that “if the witness does not speak English, the witness statement will be in that person’s own language, which must then be translated and the translation filed and verified…”.  In the case I was involved in, the witness statement was drafted in English, whereas the witness intended to give evidence in Turkish, and the statement included a defective certificate signed by a paralegal.  As a consequence of the breaches of the CPR, the claimant did not have CPR compliant witness evidence, nor could they rely on their statements of case as evidence; these were important features in the successful application for strike-out of the claim.