Lost in translation

Alrubleey v Tamra
Clerkenwell & Shoreditch County Court, 4th October 2016

Our credit hire team recently had a case which took an interesting twist when it came before the trial judge.

Proceedings were issued for damages arising out of an accident on 18th April 2015. No issues as to negligence were taken and the matter proceeded to trial before Deputy District Judge Swales on the above mentioned date.  Proceedings had been issued to seek recovery of the following damages:

• Credit Hire: £5926.80
  
  
• Recovery and Storage: £883
  
  
• Pre-Accident Value of the Vehicle: £745
  
  
• Engineer’s Fee: £150
  
  
• Miscellaneous Expenses: £50

As the claimant began to give evidence it became very apparent that his English was rather poor, so much so in fact that the claimant’s counsel intimated that she may well request an adjournment so that a translator could be found for any subsequent hearing.

Our counsel strongly objected to this on the basis that the claimant had already given away in evidence information that was detrimental to his claim.  The request for an adjournment was therefore withdrawn.

According to the court rules (CPR 22 PD 22 Para 3A) if a claimant is unable to read or verify documents signed by a Statement of Truth (due to language difficulties perhaps) then those documents must be translated to them and a statement completed by an “Authorised Person” i.e. a Commissioner for Oaths or a solicitor. Neither the court documents, the hire documents nor the claimant’s statement contained such a statement therefore it was not until the trial that the claimant’s language difficulties became apparent.

Such were the claimant’s difficulties that the judge expressed concern about the strain cross-examination was clearly placing upon him and was very concerned that such difficulties had not been picked up or flagged by the claimant’s representatives.

There were also various inconsistencies in his oral evidence to that which had appeared in his statement.

The claimant’s statement suggested that he had been taken through the terms and conditions of hire and that he understood they were his responsibility. His oral evidence suggested that the man who delivered the vehicle simply told him that he would not have to pay anything and he was completely unaware that he was responsible for the hire charges.

He admitted that, prior to hire commencing, he had managed without a replacement vehicle and had used public transport, namely the bus, for his transport needs.

As regards the storage and collection (recovery) charges, he had not agreed to pay anything and they had not been paid. No credit agreement had been presented to the defendant in respect of the charges.

His statement said that he had paid to have his vehicle repaired out of his own funds however his oral evidence was that he had not in fact paid for the repairs and, in fact, thought that the defendant’s insurer had paid for them.

At this point, the judge indicated that he had heard enough and invited submissions.

Submissions on behalf of the defendant were made in the following terms:

1. The claimant had given unequivocal evidence that a representative of the hire company (Direct Accident Management) had made a representation to him that he would not have to pay any charges. The contract was therefore unenforceable against the claimant and he had suffered no loss.
   
   
2. In the alternative, the claimant did not need to hire a vehicle as his evidence was that he could have used the bus (and indeed had done prior to hire commencing).
   
   
3. The engineer’s fee was not recoverable as a matter of law.
   
   
4. The miscellaneous expenses were not evidenced and therefore should not be recoverable.
   
   
5. There was no evidence as to the actual cost of repairs. If that cost was lower than the PAV then, in accordance with the principles in “Coles”, the repair invoice would have been the “best” evidence and should have been disclosed.

The judge agreed with points 1-4 however in respect of the fifth point, as there was an engineer’s report which detailed the pre-accident value of the vehicle, he awarded that sum.

In light of the decision, our counsel requested an award of unreasonable costs for the whole claim on the basis that to bring a claimant who was unable to speak English to the court without an interpreter was unreasonable in itself and further, that it should have been obvious to the claimant’s solicitors that there was little or no claim to answer which was further evidence of unreasonable conduct.

The judge agreed and ordered that the claimant pay the defendant’s costs of the action.

What does it mean?

There is an increasing trend of documents being submitted on behalf of claimants for whom English is not their first language without the appropriate certification.

The failure to support a document with the right verification and therefore a valid Statement of Truth does not render the document ineffective, however it does mean that the contents of the document cannot be relied upon unless and until it contains a valid Statement of Truth.

It is open for a party who has been served with such a document to apply to the court for an order that the document must, within a specified time, be certified with a valid Statement of Truth. This does crystallise the issue, as all-too-often the claimant gets to trial and refers to a “mistake” or a “misunderstanding” due to their lack of understanding of English. Using the CPR in this way means that the claimant must “pin their colours to the mast”.